PRELIMINARY CHAPTER

Resort is made to secret inquiry to discover the culprit and violence and
torture were often employed to extract a confession.

INTRODUCTION
The Judge was not limited to the evidence brought before him but could
proceed with his own inquiry which was not confrontative.

CRIMINAL PROCEDURE
Criminal Procedure is the method prescribed by law for the apprehension and
prosecution of persons accused of any criminal offense, and for their
punishment, in case of conviction.

2.

As the action is a combat between the parties, the supposed offender has
the right to be confronted by his accuser.

Criminal procedure is concerned with the procedural steps through which a

criminal case passes, commencing with the initial investigation of a crime and
concluding with the unconditional release of the offender.

The battle in the form of a public trial is judged by a magistrate who renders
the verdict.

It is a generic term used to describe the network of laws and rules which govern
the procedural administration of criminal justice, e.g., laws and court rules (e.g..
Rules of Criminal Procedure) governing arrest, search and seizure, bail, etc.

3.

SOURCES OF CRIMINAL PROCEDURE

1.
2.
3.
4.
5.
6.

7.
8.
9.
10.
11.
12.
13.

Accusatorial. The accusation is exercised by every citizen or by a

member of the group to which the injured party belongs.

The Mixed System. This is a combination of the inquisitorial and the

accusatorial systems.
Thus, the examination of defendants and other persons before the filing of
the complaint or information may be inquisitorial.
This is particularly true in the Preliminary examination, for the purpose of
issuing a warrant of arrest.

The Spanish Law of Criminal Procedure.

General Orders No. 58, dated April 23, 1900.
Amendatory Acts passed by the Philippine Commission.
The various quasi acts, the Philippine Bill of 1902, the Jones Law of 1916, the
Tydings-McDuffie Law and the Constitution of the Philippines.
The Rules of Court of 1940 and the 1964, 1985 and 1988 Rules on Criminal
Procedure.
Various Republic Acts, e.g., R.A. No. 240; New Rule 127, providing for
attachment; R.A. No. 296, Judiciary Act of 1948 denning criminal jurisdiction,
and B.P. Big. 129 as amended by R.A. No. 7691; R.A. No. 8249, Creating the
Sandiganbayan; R.A. No. 8349, The Speedy Trial Act of 1998.
Presidential Decrees, e.g., P.D. No. 911; R.A. No. 732, regulating the
authority of Prosecuting Fiscals to Conduct Preliminary Investigation.
Constitution Rights of an Accused under Article III.
The Civil Code. (Arts. 32, 33 and 34)
Judicial decisions applying or interpreting our laws which form part of our
legal system.
R.A. No. 8493, The Speedy Trial Act of 1998.
Circulars.
The Revised Rules on Criminal Procedure.

Under the 1985 Rules on Criminal Procedure, a criminal action may be

instituted by complaint of the offended party or by information filed by the
Fiscal and once the criminal action is filed in court, the accused has the right
to confront and cross-examine his accuser.
It has, however, been held that:
"As a general rule, a court proceeding in our judicial set-up is accusatorial or
adversary and not inquisitorial in nature. It contemplates two contending parties
before the court which hears them impartially and renders judgment only after trial." 4

IMPORTANCE OF DUE PROCESS IN CRIMINAL CASES

"All trial courts, the Sandiganbayan included, are reminded that they should take
all the necessary measures guaranteeing procedural due process from the
inception of custodial investigation up to rendition of judgment.

THREE SYSTEMS OF CRIMINAL PROCEDURE

They are not to turn a blind eye to procedural irregularities which transpired
before the criminal case reached the court.

1.

The validity and sufficiency of the information are important."

Inquisitorial. The detection and prosecution of offenders are not left

to the initiative of private parties but to the officials and agents of the law.

"Criminal due process requires that the accused must be proceeded against under the
orderly processes of law. In all criminal cases, the judge should follow the step-by-step

expressly conferred by the Constitution and statutes and those necessarily

implied to make the express powers effective.
STATUTE IN FORCE AT COMMENCEMENT OF ACTIONS DETERMINES
JURISDICTION

procedure required by the rules.

The reason for this is to assure that the State makes no mistake in taking the life or liberty
except that of the guilty."

CRIMINAL JURISDICTION OF COURTS

Jurisdiction over the subject matter is determined by the statute in force at the
time of the commencement of the action and not at the time of its commission
even if the penalty that may be imposed at the time of its commission is less
and does not fall under the court's jurisdiction.

"CRIMINAL JURISDICTION"
is the authority to hear and try a particular offense and impose the punishment
for it.
The general rule is that the jurisdiction of a court is determined by:

Jurisdiction is conferred only by the Constitution or by-law.

It cannot be fixed by the will of the parties nor can it be acquired or diminished
by any act of the parties.

(1) the geographical limits of the territory over which it presides, and
(2) the actions (civil and criminal), it is empowered to hear and decide.
ELEMENTS OF JURISDICTION IN CRIMINAL CASES

In determining whether a case lies within or outside the jurisdiction of a court,

reference to the applicable statute on the matter is indispensable.

The elements of jurisdiction of a trial court over the subject matter in a criminal
case are:
a.

The nature of the offense and/or penalty attached thereto; and

b.

The fact that the offense has been committed within the territorial
jurisdiction of the court.

It is a settled rule that jurisdiction of a court is determined by the statute in force

at the time of commencement of action.
The principle, however, is different, where jurisdiction is dependent on the
nature of the position of the accused at the time of the commission of the
offense.
In Subido v. Sandiganbayan, jurisdiction was determined by the position of the accused at
the time of the commission of the offense.

The non-concurrence of either of these two elements may be challenged by an

accused at any stage of the proceedings in the court below or on appeal.

REQUISITES FOR VALID EXERCISE OF CRIMINAL JURISDICTION

The crime of arbitrary detention was allegedly committed on June 25, 1992 when accused
was a Commissioner of the BID. R.A. No. 7975 took effect on May 6,1995 vesting the
Sandiganbayan with exclusive jurisdiction for crimes committed by public officers corresponding to Grade 27.

Three important requisites must be present before a court can validly exercise
its power to hear and try a case:

The information was filed on 28 July 1995 when accused was already a private citizen. He
claimed that under the law at the time of the commencement of the action, the
Sandiganbayan has no jurisdiction over him for the offense charged.

Failing in one of them, a judgment of conviction is null and void.

a.
b.
c.

It must have jurisdiction over the subject matter;

It must have jurisdiction over the territory where the offense was committed;
It must have jurisdiction over the person of the accused.

HELD: Republic Act No. 7975 (amended by R.A. No. 8249) as regards the Sandiganbayan's
jurisdiction, mode of appeal and other proce- dural matters, was held as a procedural law
and may validly be given retroactive effect, there being no impairment of contractual or
vested rights.

JURISDICTION OVER THE SUBJECT MATTER is the power to hear and

determine cases of the general class to which the proceedings in question
belong.8

It was held that the Sandiganbayan has no jurisdiction over an anti-graft case allegedly
committed by public officers who at the time of the filing of the information falls below
Grade 27.

JURISDICTION IS CONFERRED BY LAW

JURISDICTION DETERMINED BY ALLEGATIONS OF COMPLAINT

The Philippine Courts have no common law jurisdiction or power, but only those

The averments in the complaint or information characterizes the crime to be

2

prosecuted and the court before which it must be tried.

In order to determine the jurisdiction of the court in criminal cases, the
complaint must be examined for the purpose of ascertaining whether or not the
facts set out therein and the punishment provided for by law for such facts fall
within the jurisdiction of the court where the complaint is filed.

e.

The exception is when there is estoppel by laches to bar attacks on

jurisdiction.

The jurisdiction of courts in criminal cases is determined by the allegations of

the complaint or information and not by the findings the court may make after
the trial.

f.

PRINCIPLES OF JURISDICTION
a.

The general rule is that the jurisdiction of a court is determined by: (1) the
geographical limits of the territory over which it presides, and (2) the action
(civil and criminal) it is empowered to hear and decide.

b.

As the question of jurisdiction is always of importance, if the prosecution

fails to prove that fact, the court may always permit it to present additional
evidence to show the fact that the crime was committed within its
jurisdiction.

c.

Estoppel by Laches to Question Jurisdiction in Criminal Cases

Generally, the doctrine of estoppel does not apply as against the people in
criminal prosecutions.
The principle, however, earlier laid down in the case of Tijam v.
Sibonghanoy2'' which bars a party from attacking the jurisdiction of the court
by reason of estoppel by laches have been extended to criminal cases.
See, however, Fuzume v. Court of'Appeals, holding that accused or the court
may motu proprio raise lack of jurisdiction over the subject matter in a
criminal case for the first time on Appeal.
Immunity from suit is a jurisdictional question.

The filing of a complaint or information in Court initiates a criminal action.

g.

The Court thereby acquires jurisdiction over the case, which is the authority
to hear and determine the case.

Principle that there is no estoppel against State

The settled rule is that the State is not estopped by the mistakes of its
officers and employees. Indeed, in Cruz, Jr. v. Court of Appeals, the Court
declared:

When after the filing of the complaint or information a warrant for the arrest
of the accused is issued by the trial court and the accused either voluntarily
submitted himself to the Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused.
d.

If under the law the court has no jurisdiction over the subject matter, it
cannot take cognizance of the case, notwithstanding the silence or
acquiescence of the accused.

. . . Estoppel does not lie against the government because of the supposedly mistaken
acts or omissions of its agents.
As we declared in People v. Castaneda, "there is the long familiar rule that erroneous
application and enforcement of the law by public officers do not block subsequent
correct application of the statute and that the government is never estopped by
mistake or error on the part of its agents."

Lack of jurisdiction over the subject matter of an action is fatal and an

objection based upon this ground may be interposed at any stage of the
proceedings.

The Court also held in Chua v. Court of Appeals:

Jurisdiction is conferred only by the sovereign authority which organizes the

courts.

. . . While ordinarily, certiorari is unavailing where the appeal period has lapsed, there
are exceptions. Among them are:

When jurisdiction over an offense has not been conferred by law, the
accused cannot confer it by express waiver or otherwise.
Jurisdiction over criminal cases cannot be conferred by consent.
Even if a party fails to file a motion to quash, he may still question the
jurisdiction of the court later on.

(a)
(b)
(c)
(d)

Moreover, these objections may be raised or considered motu proprio by the

court at any stage of the proceedings or on appeal.

h.
3

when public welfare and the advancement of public policy dictates;

when the broader interest of justice so requires;
when the writs issued are null and void; or
when the questioned order amounts to an oppressive exercise of judicial
authority... .

A conviction or acquittal before a court having no jurisdiction is, like all

proceedings in the case, absolutely void, and is therefore no bar to

subsequent indictment and trial in a court which has jurisdiction of the

offense.
ADHERENCE OF JURISDICTION

The term "principal" was deleted so that under the amendment, if an accomplice
belongs to Salary Grade 27, then jurisdiction is with the Sandiganbayan even if
none of the principals belong to a lower salary grade. The amendment was
applied retroactively.

Once jurisdiction is vested in the court, it is retained up to the end of the

litigation.
Ordinarily, jurisdiction once acquired is not affected by subsequent legislative
enactment placing jurisdiction in another tribunal.

JURISDICTION OVER OFFENSE

a.

It remains with the court until the case is finally terminated. Thus, it has been
held that the Sandiganbayan or the courts as the case may be, cannot be
divested of jurisdiction over cases filed before them by reason ofR.A. No. 7975.

In criminal cases, the court must examine the complaint for the purpose of
ascertaining whether or not the facts set out and the punishment provided
by law for such act, fall within the jurisdiction of the court.
If the criminal act charged is punished by law with a penalty which pertains
to the jurisdiction of the court, it falls under the original jurisdiction thereof,
although the penalty it may have to impose in accordance with the evidence
is below that which falls under its jurisdiction.

They retain their jurisdiction until the end of the litigation.

EXCEPTION TO PRINCIPLE OF ADHERENCE
Where, however, the subsequent statute expressly provides, or is construed to
the effect that it is applicable to operate as to actions pending before its
enactment.

b.

Where a complaint is presented in court charging the defendant with

murder, at the close of the trial, the court finds that the crime committed
was assault and battery only.

Where a statute changing the jurisdiction of a court has no retroactive effect, it

cannot be applied to a case that was pending prior to the enactment of the
statute.

Justices of the peace have original jurisdiction over the offense of assault
and battery, the complaint, however, gave the Court of First Instance jurisdiction over the alleged crime.

R.A. No. 7975 by virtue of Section 7 belongs to the exception rather than a rule.

It retains jurisdiction for the purpose of imposing the penalty provided for by
law for the crime proved to have been committed.

The provision is transitory in nature and expresses the legislature's intention to

apply its provisions on jurisdiction to criminal cases in which trial has not began
in the Sandiganbayan. To this extent R.A. No. 7975 is retroactive.
In another case, the court held that although the Sandiganbayan has jurisdiction
at the time the charge was filed, it lost jurisdiction upon the enactment of R.A.
No. 7975 because he falls below the rank of full colonel, and trial has not yet
begun.

c.

Where the court has jurisdiction of the subject matter and the person of the
accused, it is not necessary, in order to maintain that jurisdiction, to decide
the case correctly.
The Court has jurisdiction to decide wrongly as well as rightly.

d.
In Lacson v. Executive Secretary, the amendment in R.A. No. 8249 that in cases
where none of the accused are occupying positions corresponding to Salary
Grade "27" or higher, as prescribed in the said Republic Act No. 6758, or military
and PNP officers mentioned above, exclusive original jurisdiction thereof shall be
vested in the proper regional trial court, metropolitan trial court, municipal trial
court, and municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Big. 129, as amended,
was applied to the pending criminal case in the Sandiganbayan.

It is not a jurisdictional defect and one which deprives the court of its
authority to try, convict and pass sentence, that a criminal action is brought
in the name of the City of Manila instead of the united States.
The fact constitutes a mere defect or error curable at any stage of the
action, it does not deprive the court of the power to pronounce a valid
judgment and impose a valid sentence, and it cannot be made the basis of a
writ of habeas corpus

e.
The previous law vests jurisdiction in the RTC where none of the principal
accused are occupying positions corresponding to Salary Grade 27.
4

The court having jurisdiction of the offense has also jurisdiction to determine
the disposition of the instrument used in the commission of the crime.

As an accessory penalty, the instrument used in the commission of the

offense shall be forfeited unless it belongs to a third person who is not liable
for the offense which the instrument was used to commit.

information.

Thus, it may be that after trial, a penalty lesser than the maximum
imposable under the statute is proper under the specific facts and
circumstances proven at the trial.

It is the duty of the court therefore to dispose of the same upon the
application of any person interested.

In such a case, that lesser penalty may be imposed by the trial court
(provided it has subject-matter jurisdiction under the rule above referred to)
even if the reduced penalty otherwise falls within the exclusive jurisdiction of
an inferior court.

The person to whom the instrument belongs has a right to take his
proceeding to the court having jurisdiction of the offense for the purpose of
having his rights in the premises determined.
f.

g.

TERRITORIAL JURISDICTION

Where a court is given jurisdiction over a specific class of crimes, that

jurisdiction will continue whether that class be enlarged or diminished or
whether the penalty for a violation be increased or diminished.

It is a fundamental rule that for jurisdiction to be acquired by courts in criminal

cases, the offense should have been committed or any one of its essential
ingredients took place within the territorial jurisdiction of the court.

Where the military authorities had jurisdiction over the person of a military
officer at the time of the alleged offenses, the jurisdiction having been
vested, it is retained up to the end of the proceedings.

Territorial jurisdiction in criminal cases is the territory where the court has
jurisdiction to take cognizance or to try the offense allegedly committed by the
accused.

Jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated.
h.

Thus, it cannot take jurisdiction over a person charged with an offense allegedly
committed outside of that limited territory.

Subject matter of jurisdiction in criminal cases is determined by the

authority of the court to impose the penalty imposable under the applicable
statute given the allegation of a criminal information.

Furthermore, the jurisdiction of a court over the criminal case is determined by

the allegations in the complaint or information.

In People v. Purisima, the Court stressed that:

And once it is so shown, the court may validly take cognizance of the case.

"x x x. In criminal prosecutions, it is settled that the jurisdiction of the court is not
determined by what may be meted out to the offender after trial, or even by the result
of the evidence that would be presented at the trial, but by the extent of the penalty
which the law imposes for the misdemeanor, crime or violation charged in the
complaint.

However, if the evidence adduced during the trial show that the offense was
committed somewhere else, the court should dismiss the action for want of
jurisdiction.
In criminal proceedings, the rule is that one can not be held to answer for any
crime committed by him except in the jurisdiction where it was committed.

If the facts recited in the complaint and the punishment provided for by law are sufficient to show that the court in which the complaint is presented has jurisdiction, that
court must assume jurisdiction

Said rule is- based on the legal provision which prescribes the essential
requisites of a good complaint or information, one of which is the allegation that
the crime was committed within the jurisdiction of the court where the complaint
or information is filed and that said court has authority to try it.
As was said in the case of United States v. Cunanan, the jurisdiction of the
Courts of First Instance of the Philippine Islands, in criminal cases is limited to
certain well-defined territory, so that they can not take jurisdiction of persons
charged with an offense alleged to have been committed outside of that limited
territory.

The same rule was set forth and amplified in People v. Buissan in the
following terms:
xxx [i]n criminal prosecutions, jurisdiction of the court is not determined by what may
be meted out to the offender after trialor even by the result of the evidence that
would be presented during the trial but by the extent of the penalty which the law
imposes, together with other legal obligations, on the basis of the facts as recited in
the complaint or information constitutive of the offense charged, for once jurisdiction
is acquired by the court in which the information is filed, it is retained regardless of
whether or not the evidence proves a lesser offense than that charged in the

Jurisdiction of the Courts in criminal cases rests upon a different footing from
that in civil cases.

arrested in that province and defendant had not fled therefrom, the Court of First
Instance of that province has no jurisdiction to impose sentence.

In criminal cases, the people of the State is a party.

In such cases, if the court has reasonable ground to believe that the crime has
been committed, the accused should be remanded to the court of proper
jurisdiction for trial.
It has been held that where the court has no jurisdiction at the time of the filing
of the complaint, instead of ordering the transfer, the court should dismiss the
case.

The interests of the public require that, to secure the best results and effects in
the punishment of crime, it is necessary to prosecute and punish the criminal in
the very place, as near as may be, where he committed his crime.
As a result, it has been the uniform legislation, both in statutes and in
constitution, that the venue of a criminal action must be laid in the place where
the crime was committed.

However, in Republic v. Asuncion, and Cunanan v. Arcco, the Court sanctioned

the transfer of the cases from the RTC for lack of jurisdiction to the
Sandiganbayan, while in Lacson v. The Executive Secretary, the Court (en bane)
ordered the transfer of the cases from the Sandiganbayan for lack of jurisdiction
to the Regional Trial Court of Quezon City which has exclusive original
jurisdiction over said cases.

While the laws here do not specifically and in terms require it, it is the
established custom and the uniform holding that criminal prosecutions must be
brought and conducted, except in cases especially provided by law, in the
province where the crime is committed.

In Cuyco u. Sandiganbayan, the court ordered the Sandiganbayan to dismiss the

case for lack of jurisdiction, but informed the Ombudsman that it may re-file the
cases with the court of proper jurisdiction, the RTC of Zamboanga City.

Judicial divisions or districts (now regions) are always fixed by law so that any
changes or alterations of the same can only be effected by express legislation
and not by mere inference or deduction.

In his concurring opinion, Chief Justice Davide, Jr., asked to REFER the case to
the RTC instead of dismissing the cases.

Proceedings in a criminal case before a judge acting without jurisdiction are void,
but this fact will not preclude the filing of a new complaint upon the dismissal of
the former proceeding.

It is believed that under its supervisory authority, the Supreme Court and even
the Court of Appeals may properly refer the case to the court of proper
jurisdiction.

WHEN PLACE OF CRIME NOT ALLEGED

Where the place of the commission of the offense was not specifically charged,
the place may be shown by the evidence.

Courts of the first and second level is without authority to order the transfer.
If the said courts believe that it has no jurisdiction over the subject matter, its
jurisdiction is limited to simply dismissing the case.

Thus, the insufficiency of the complaint charging adultery without stating the
place where the acts of adultery were committed, or that the accused knew the
woman was married at the time of cohabitation, assigned as error as the
conviction thereon amounted to a conviction without informing the defendants
of the nature and character of the offense, and besides equivalent to a
conviction without due process of law.

JURISDICTION OF MUNICIPAL TRIAL COURTS IN CRIMINAL CASES

Republic Act No. 7691 which took effect on April 15, 1994 amended B.P. Big.
129, otherwise known as "The Judiciary Reorganization Act of 1980" by
Expanding the Jurisdiction of the aforementioned courts as follows:

No such question having been raised before final judgment in the trial court, but
every ingredient of the crime having been established in the evidence, there
was no error committed upon which to base a reversal of conviction.

Exclusive Original Jurisdiction

xxx SEC. 2. Section 32 of the same law is hereby amended to read as follows:

ACTION BY COURT WHERE IT HAS NO JURISDICTION

"SEC. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the
exclusive original jurisdiction of the Regional Trial Court and of the Sandiganbayan, the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall

When the record discloses that the crime as alleged in the complaint was not
committed in the province wherein the trial was had, and the accused was not
6

exercise:

fine of not more than Four thousand pesos.

(1) Exclusive original jurisdiction over all violations of city or municipal ordinances
committed within their respective territorial jurisdiction; and

If the amount of the fine exceeds Four thousand pesos, the Regional Trial
Courts shall have jurisdiction, including offenses committed by public
officers and employees in relation to their office, where the amount of the
fine does not exceed Six thousand pesos.

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of fine, and regardless of other
imposable accessory or other penalties, including the civil liability arising from such
offenses or predicated thereon, irrespective of kind, nature, value or amount thereof:

However, this rule does not apply to offenses involving damage to property
through criminal negligence which are under the exclusive original
jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts, irrespective of the amount of the imposable
fine."

Provided, however. That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof."

Interpreting the foregoing law, the Supreme Court issued Administrative Circular
09-94 as follows:

The opening Paragraph of Section 32 excepts cases falling within the

exclusive original jurisdiction of Regional Trial Court and of the
Sandiganbayan from the expanded jurisdiction of the aforementioned
courts even if the offense is punishable with imprisonment not exceeding six
(6) years.

Subject: Guidelines in the implementation of Republic Act No. 7691, Entitled "An Act
Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts, Amending For the Purpose Batas Pambansa Big. 129,
otherwise known as the Judiciary Reorganization Act of 1980."

For the guidance of the Bench and the Bar, the following guidelines are to be
followed in the implementation of Republic Act No. 7691, entitled "An Act
Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa
Big. 129, otherwise known as the 'Judiciary Reorganization Act of 1980'":

In other words, where jurisdiction is determined by the nature of the offense

and not by the penalty, jurisdiction should remain in the Regional Trial Court
or the Sandiganbayan.

(3) The criminal jurisdiction of the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts under Section 32(2) ofB.P. Big. 129,
as amended by R.A. No. 7691, has been increased to cover offenses
punishable with imprisonment not exceeding six (6) years irrespective of the
amount of the fine.

1) Libel is punishable by prision corrreccional in its minimum and maximum

period or fine or bail. (Article 354, R.P.C.) Article 360, however, of the
same code as amended, provides that the criminal and civil action for
damages in cases of written defamation shall be filed in the Court of
First Instance, etc."

For example:

2) Jurisdiction over Election Offenses

As a consequence, the Regional Trial Courts have no more original

jurisdiction over offenses committed by public officers and employees in
relation to their office, where the offense is punishable by more than four (4)
years and two (2) months up to six (6) years.

SEC. 268. Jurisdiction of courts. The regional trial court shall have the exclusive original
jurisdiction to try and decide any criminal action or proceedings for violation of this Code,
except those relating to the offense of failure to register or failure to vote which shall be
under the jurisdiction of the metropolitan or municipal trial courts.

(4) The provisions of Section 32(2) of B.P. Big. 129, as amended by R.A. No.
7691, apply only to offenses punishable by imprisonment or fine, or both, in
which cases the amount of the fine is disregarded in determining the
jurisdiction of the court.

From the decision of the courts, appeal will lie as in other criminal cases.

3) ARTICLE X Jurisdiction Over Dangerous Drugs Cases

SEC. 39. Jurisdiction. The Court of First Instance, Circuit Criminal Court, and Juvenile
and Domestic Relations Court shall have concurrent original jurisdiction over all cases
involving offenses punishable under this Act:

However, in cases where the only penalty provided by law is a fine, the
amount thereof shall determine the jurisdiction of the court in accordance
with the original provisions of Section 32(2) of B.P. Big. 129 which fixed the
original exclusive jurisdiction of the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts over offenses punishable with a

Provided, That in cities or provinces where there are .Juvenile and Domestic Relations
Courts, the said courts shall take exclusive cognizance of cases where the offenders are

injured by the commission of said crime.

Thus, an inferior court has jurisdiction over a case of simple seduction defined
and penalized under Article 338 of the Revised Penal Code, as amended, with
arresto mayor, regardless of the civil liability that may be imposed under Article
345 of the same code. This supersedes U.S. v. Barredo.

under sixteen years of age.

4) Cases which falls under the original and exclusive jurisdiction of the
Sandiganbayan regardless of the imposable penalty.
Thus, the aforementioned exception refers not only to Section 20 ofB.P. Big.
129 providing for the jurisdiction of Regional Trial Courts in criminal cases,
but also to other laws which specifically lodged in Regional Trial Courts'
exclusive jurisdiction over specific criminal cases, e.g.,

Other Imposable Penalties The additional penalty for habitual delinquency

is not considered in determining which court shall have jurisdiction over a
criminal case because such delinquency is not a crime.

(a) Article 360 of the Revised Penal Code, as amended by R.A. Nos. 1289
and 4363 on written defamation or libel;
(b) Decree on Intellectual Property (P.D. No. 49, as amended), which vests
upon Courts of First Instance exclusive jurisdiction over the cases therein
mentioned regardless of the imposable penalty; and
(c) more appropriately, Section 39 of R.A. No. 6425, as amended by P.D. No.
44, which vests on Courts of First Instance, Circuit Criminal Courts, and
the Juvenile and Domestic Relations Courts concurrent exclusive original
jurisdiction over all cases involving violations of said Act.

SPECIAL JURISDICTION IN CERTAIN CASES

In the absence of all the Regional Trial Judges in a province or city, any
Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may
hear and decide petitions for a writ of habeas corpus or application for bail in
criminal cases in the province or city where the absent Regional Trial Judges sit.
CRIMINAL JURISDICTION OF REGIONAL TRIAL COURTS
Regional Trial Courts shall exercise exclusive original jurisdiction in all criminal
cases not within the exclusive jurisdiction of any court, tribunal or body, except
those now falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken cognizance by the
latter.

5) Cases which fall under the original and exclusive jurisdiction of Family Courts
under Republic Act No. 8369 known as the Family Courts Act of 1997.
CIVIL LIABILITY IRRESPECTIVE OF KIND OR NATURE
Where the offense charged is within its exclusive competence by reason of the
penalty prescribed therefor, an inferior court shall have jurisdiction to try and
decide the case irrespective of the kind and nature of the civil liability arising
from the said offense.

JURISDICTION OVER COMPLEX CRIMES

Jurisdiction over the whole complex crime must logically be lodged with the trial
court having jurisdiction to impose the maximum and most serious penalty
imposable on an offense forming part of the complex crime.

The jurisdiction of the court is also determined by the amount of the fine and
imprisonment.

A complex crime must be prosecuted integrally, as it were, and not split into its
component offenses and the latter made the subject of multiple informations
possibly brought in different courts.

But an indemnification or a reparation or a restitution is merely an incident of

the crime.

ORIGINAL AND EXCLUSIVE JURISDICTION OF FAMILY COURTS

The jurisdiction of the courts is not fixed by the incident but by the nature of the
crime itself.

Republic Act No. 8369 established Family Courts granting them exclusive original
jurisdiction over child and family cases namely:

Legally speaking, the nature of the crime is determined by the punishment

imposed.

a. Criminal case where one or more of the accused is below eighteen (18) years of age
but not less than nine (9) years of age, or where one or more of the victim is a minor at the
time of the commission of the offense;

Thus, it has been held that the jurisdiction of courts of justice of the peace over
crimes is determined exclusively by the amount of the fine and imprisonment
imposed by the law, that is by the legal nature of the crime, and in no matter
and to no extent whatever by the civil incidents which accrue to the person

Provided, That if the minor is found guilty, the court shall promulgate sentence and
ascertain any civil liability which the accused may have incurred.

other provincial department heads;

The sentence, however, shall be suspended without need of application pursuant to

Presidential Decree No. 603, otherwise known as the "Child and Youth Welfare Code."
i.

Cases against minors cognizable under the Dangerous Drugs Acts, as amended;

j.

Violations of Republic Act No. 7610, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act," as amended by
Republic Act No. 7658; and

k)

"(b) City mayors, vice-mayors, members of the sangguniang panlungsod,

city treasurers, assessors, engineers, and other city department
heads;
"(c) Officials of the diplomatic service occupying the position of consul
and higher;

Cases of domestic violence against:

1)

2)

"(d) Philippine army and air force colonels, naval captains, and all officers
of higher rank;

Women which are acts of gender based violence that result, or are likely to
result in physical, sexual or psychological harm or suffering to women; and other
forms of physical abuses battering or threats and coercion which violates a
woman's personhood, integrity and freedom of movement; and

"(e) Officers of the Philippine National Police while occupying the position
of provincial director and those holding the rank of senior
superintendent or higher;

Children which include the commission of all forms of abuse, neglect, cruelty,
exploitation, violence, and discrimination and all other conditions prejudicial to
their development.

"(f) City and provincial prosecutors and their assistants, and official and
prosecutors in the Office of the Ombudsman and special prosecutor;
and

If an act constitutes a criminal offense, the accused or batterer shall be subject to

criminal proceedings and the corresponding penalties.

"(g) Presidents, directors or trustees, or managers of government-owned

or -controlled corporations, state universities or educational
institutions or foundations;

JURISDICTION OF THE SANDIGANBAYAN CHANGED BY REPUBLIC ACT NO.

8249
The jurisdiction of the Sandiganbayan under Presidential Decree No. 1606, as
amended by Executive Order No. 184, has been changed by REPUBLIC ACT NO.
8249 "AN ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THAT PURPOSE
PRESIDENTIAL DECREE NO. 1606."

"(2) Members of Congress and officials thereof classified as Grade '2' and up
under the Compensation and Position Classification Act of 1989;

Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in

all cases involving:

"(4) Chairmen and members of Constitutional Commissions,

prejudice to the provisions of the Constitution; and

"a. Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time
of the commission of the offense:

"(5) All other national and local officials classified as Grade '27' and higher
under the Compensation and Position Classification Act of 1989.

"(3) Members of the judiciary without prejudice to the provisions of the

Constitution;
without

"b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection (a)
of this section in relation to their office.

(I) Official of the executive branch occupying the positions of regional

director and higher, otherwise classified as Grade '27' and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:

"c. Civil and criminal case filed pursuant to and in connection with Executive
Order Nos. 1, 2, 14 and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding
to Salary Grade '27' or higher, as prescribed in the said Republic Act No.
6758, or military and PNP officers mentioned above, exclusive original

"(a) Provincial governors, vice-governors, members of the sangguniang

panlalawigan, and provincial treasurers, assessors, engineers, and
9

jurisdiction thereof shall be vested in the proper regional trial court,

metropolitan trial court, municipal trial court, and municipal circuit trial
court, as the case may be, pursuant to their respective jurisdictions as
provided in Batas Pambansa Big. 129, as amended.

Section 4 above.

"The Sandiganbayan shall exercise exclusive appellate jurisdiction over final

judgments, resolutions or orders of regional trial courts whether in the
exercise of their own original jurisdiction or of their appellate jurisdiction as
herein provided.

JURISDICTION OF SANDIGANBAYAN OVER PUBLIC OFFICERS

However, it retains its exclusive original jurisdiction over civil and criminal cases
filed pursuant to or in connection with E.O. No. I.

Prior to the amendment (R.A. No. 7975), jurisdiction of the Sandiganbayan for
felonies other than violation of R.A. No. 3019 as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code, embrace all other offenses
provided, the offense was committed in relation to public office and the
prescribed penalty is more than six years.

"The Sandiganbayan shall have exclusive original jurisdiction over petitions

for the issuance of the writs of mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and processes in aid of its
appellate jurisdiction and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which be filed under
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986:

Under the present law, both the nature of the offense and the positions occupied
by the accused are the conditions sine qua non before the Sandiganbayan can
validly take cognizance of the case.

Provided, That the jurisdiction over these petitions shall not be exclusive of
the Supreme Court.

DETERMINATION OF JURISDICTION

"In case private individuals are charged as co-principals, accomplices or

accessories with the public officers or employees including those employed
in government-owned or -controlled corporations, they shall be tried jointly
with said public officers and employees in the proper courts which shall
exercise exclusive jurisdiction over them."

Republic Act No. 8249 collated the provisions on the exclusive jurisdiction of the
Sandiganbayan.
Its original jurisdiction as a trial court was made to depend not on the penalty
imposed by the law on crimes and offenses within its jurisdiction but on the rank
and salary grade of the acused government officials and employees.
To determine the jurisdiction of the Sandiganbayan in cases involving violations
of Rep. Act No. 3019, the reckoning period is the time of the commission if the
offense.

CONSEQUENCE OF AMENDMENTS
As a consequence of these amendments, the Sandiganbayan partly lost its
exclusive original jurisdiction in cases involving:

Includes officials specifically mentioned even if below Grade 27

a.
b.
c.

Violations of R.A. No. 3019;

R.A. No. 1379; and
Chapter II, Section 2, Title VII of the Revised Penal Code. (Article 210, Direct
Bribery; Article 211, Indirect Bribery; andArticle 212, Corruption of Public
Officials).

The specific inclusion of the officials from (a) to (g) constitutes an exception to
the general qualification relating to officials of the executive branch as
"occupying the positions of regional director and higher, otherwise classified as
grade 27 and higher, of the Compensation and Classification Act of 1989.

The Sandiganbayan retains jurisdiction only in cases where the accused are
those enumerated in subsection (a) Section 4 above and, generally, national and
local officials classified as Grade "27" and higher under the Compensation and
Position Classification Act of 1989.
Moreover, its jurisdiction over other offenses or felonies committed by public
officials and employees in relation to their office is no longer determined by the
prescribed penalty, viz., that which is higher than prision correccional or
imprisonment for six years or a fine ofP6,000.00; it is enough that they are
committed by those public officials and employees enumerated in subsection a,

In other words, violation of Rep. Act No. 3019 committed by officials specifically
enumerated in (a) to (g) regardless of their salary grade.
All other officials below grade 27 shall be under the jurisdiction of the proper
trial courts.
PURPOSES OF DETERMINING THE GOVERNMENT OFFICIALS THAT FALL
WITHIN THE ORIGINAL JURISDICTION OF THE SANDIGANBAYAN IN CASES
INVOLVING VIOLATIONS OF REP. ACT NO. 3019 AND CHAPTER II,
10

SECTION 2, TITLE VII OF THE REVISED PENAL CODE BRIBERY (ART.

210), INDIRECT BRIBERY (ART. 211) AND CORRUPTION OF PUBLIC
OFFICIALS (ART. 212)

(10)

Art. 212, Corruption of public officials.

which does not include the crime of Rebellion or coup d'etat. With respect to
other offenses or felonies whether simple or complexed with other crimes
committed by public officials and employees mentioned in subsection (a) in
relation to their office.

Rep. Act No. 7975 has grouped them into five categories, to wit:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as grade 27 and higher;

In other words, the case would fall under the Sandiganbayan if the crime is
committed "in relation to public office except the crimes of rebellion and
coup d'etat.

(2) Members of Congress and officials thereof classified as Grade "27" and up
under the Compensation and Position Classification Act of 1989;

Sandiganbayan has jurisdiction even if Co-Accused in Malversation

below Grade 27

(3) Members of the judiciary without prejudice to the provisions of the

Constitution;
(4) Chairmen and members of Constitutional Commissions, without prejudice to
the provisions of the Constitution; and

Two of the felonies that belong to the first classification are malversation defined
and penalized by Article 217 of the Revised Penal Code, and the illegal use of
public funds or property defined and penalized by Article 220 of the same Code.

(5) All other national and local officials classified as Grade "27" and higher
under the Compensation and Position Classification Act of 1989.

The public office of the accused Municipal Mayor Virginio E. Villamor is a

constituent element of malversation and illegal use of public funds or property.

The Sandiganbayan has original jurisdiction over criminal cases involving crimes
and felonies under the first classification:

Accused mayor's position is classified as SG 27. Since the Amended Informations

alleged that the petitioner conspired with her co-accused, the municipal mayor,
in committing the said felonies, the fact that her position as municipal
accountant is classified as SG 24 and as such is not an accountable officer is of
no moment; the Sandiganbayan still has exclusive original jurisdiction over the
cases lodged against her.

"a. Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time
of the commission of the offense.

It must be stressed that a public officer who is not in charge of public funds or
property by virtue of her official position, or even a private individual, may be
liable for malversation or illegal use of public funds or property if such public
officer or private individual conspires with an accountable public officer to
commit malversation or illegal use of public funds or property.

The exclusive jurisdiction of the Sandiganbayan over those public officers

holding positions classified as Grade 27 refers to Violations ofR.A. No. 3019,
Act No. 1379 and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code referring to Malfeasance and Misfeasance in office

The determinative fact is that the position of her co-accused, the municipal
mayor, is classified as SG 27, and under the last paragraph of Section 2 of Rep.
Act No. 7975, if the position of one of the principal accused is classified as SG
27, the Sandiganbayan has original and exclusive jurisdiction over the offense.

(1)
(2)
(3)
(4)
(5)
(6)

Art. 204, knowingly rendering an unjust judgment;

Art. 205, Judgment rendered thru negligence;
Art. 206, Unjust Interlocutory Order;
Art. 207, Malicious Delay in the administration of justice;
Art. 208, Prosecution of offenses; negligence and tolerance;
Art. 209, Betrayal of trust by an attorney or solicitor Revelation of
secrets;
(7) Art. 210, Direct Bribery;
(8) Art. 211, Indirect Bribery;
(9) Art. 211-A, Qualified Bribery;

WHEN IS AN OFFENSE DEEMED COMMITTED IN RELATION TO PUBLIC

OFFICE
The office must be a constituent element of the crime as defined in the statute.
The test is whether the offense cannot exist without the office.

11

DETERMINATION OF WHEN CRIME IS IN RELATION TO PUBLIC OFFICE

hear and decide the case.

Thus, for jurisdiction over crimes committed by public officers in relation to
public office to fall within jurisdiction of the Sandiganbayan the intimate
relation between the offense charged and the discharge of official duties must
be alleged in the information.

How to Determine whether information sufficiently alleges that the

crime was committed in relation to public office
There are two ways of determining whether or not the information charges that
the offense was committed in relation to public office.

There must be specific factual averments of this relation, except when the office
is a constituent element of the offense charged.

The statement that the "committed in relation to public office" is not sufficient.
a.

For instance, although public office is not an element of the crime of murder in
abstract, where the offense therein charged in the information is intimately
connected with the respective offices of the accused and was perpetuated while
they were in the performance, though irregular or improper, of their officials
functions and had no personal motive to commit the crime and would not have
committed it had they not held their public office and merely obeyed the
instruc-don of their superior officer, the offense may be said to have been committed in relation to their office.
As explained by the Court

Where the public office of the accused is by statute a constituent element of

the crime charged, there is no need for the Prosecutor to state in the
Information specific factual allegations of the intimacy between the office
and the crime charged, or that the accused committed the crime in the
performance of his duties.
Thus, the public office of the accused Municipal Mayor Virginio E. Villamor is
a constituent element of malversation and illegal use of public funds or
property.

"In People v. Montejo, where the amended information alleged

b.

When specific factual allegations of crime committed in relation to public

office required

Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police patrol
and civilian commandos consisting of regular policemen and x x x special policemen,
appointed and provided by him with pistols and high power guns and then established a
camp x x x at Tipo-tipo which is under his command x x x supervision and control where
his co-defendants were stationed, entertained criminal complaints and conducted the
corresponding investigations, as well as assumed the authority to arrest and detain
persons without due process of law and without bringing them to the proper court, and
that in line with this set-up established by said Mayor of Basilan City as such, and acting
upon his orders his co-defendants arrested and maltreated Awalin Tebag who died in
consequence thereof.

These are offenses or felonies which are intimately connected with the
public office and are perpetrated by the public officer or employee while in
the performance of his official functions, through improper or irregular
conduct.
Where the office is not a constituent element of the offense charged there must
be specific allegation of facts that it was intimately related to the discharge of
their official duties.

The court held that the offense charged was committed in relation to the office
of the accused because it was perpetrated while they were in the performance,
though improper or irregular of their official functions and would not have been
committed had they not held their office, besides, the accused had no personal
motive in committing the crime, thus, there was an intimate connection between
the offense and the office of the accused.

The Sandiganbayan likewise has original jurisdiction over criminal cases

involving crimes or felonies committed by the public officers and employees
enumerated in Section (a)(l) to (5) under the second classification if the
Information contains specific factual allegations showing the intimate connection
between the offense charged and the public office of the accused, and the
discharge of his official duties or functions whether improper or irregular.

In the afore-cited case of People v. Montejo, it is noteworthy that the phrase

committed in relation to public office does not appear in the information, which
only signifies that the said phrase is not what determines the jurisdiction of the
Sandiganbayan.

The requirement is not complied with if the Information merely alleges that the
accused committed the crime charged in relation to his office because such
allegation is merely a conclusion of law.

What is controlling is the specific factual allegations in the information that

would indicate the close intimacy between the discharge of the accused's official
duties and the commission of the offense charged, in order to qualify the crime
as having been committed in relation to public office.

In the absence of any allegation that the offense was committed in relation to
the office of the accused or was necessarily connected with the discharge of
their functions, the regional court, not the Sandiganbayan, has jurisdiction to
12

Where however, from the allegations of the information, it does not appear that
the official positions of the accused were connected with the offenses charged, it
cannot be said that they are charged of an offense committed in relation to their
official position.
The difference between Montilla and Montejo is that, whereas in the former
(Montilla), the murder was committed outside office hours and for personal or
political motives, the victim in the latter case (Montejo) was killed while he was
undergoing custodial investigation in the police substation.

Thus, in the case of Bartolome, there is no showing that the alleged

falsification was committed by the accused, if at all, as a consequence of,
and while they were discharging official functions.

The crime in Montejo would not have been committed were it not for the fact
that the accused were actually discharging official functions at the time.

For purposes, however, of acquisition of jurisdiction by the Sandiganbayan,

the requirement imposed by R.A. No. 8249 that the offense be "committed in
relation" to the offender's office is entirely distinct from the concept of
taking advantage of one's position as provided under Articles 171 and 172 of
the Revised Penal Code.

The information does not allege that there was an intimate connection
between the discharge of official duties and of the offense.
The case did not come under the jurisdiction of the Sandiganbayan.

Thus, the offense charged in Montejo was committed in relation to the office of
the accused because it was perpetrated while they were in the performance,
though improper or irregular of their official functions and would not have been
committed had they not held their office; besides, the accused had no personal
motive in committing the crime; thus, there was an intimate connection between
the offense and the office of the accused.

2.

In Montilla v. Hilario, this Court, described the "offense committed in relation

to the office" as follows:

Upon the otherhand, although the information alleged that the principal accused
committed the crime in relation to their public office, but there is no specific
allegation of facts that the shooting of the victim by the said principal accused
was intimately related to the discharge of their official duties as police officers,
or does not indicate that the said accused arrested and investigated the victim
and then killed the latter while in their custody, the offense charged in the
subject criminal cases is plain murder and therefore, within the exclusive original
jurisdiction of the Regional Trial Court, and not the Sandiganbayan.

"The taking of human life is either murder or homicide whether done by a private
citizen or public servant, and the penalty is the same except when the perpetrator,
being a public functionary, took advantage of his office, as alleged in this case, in
which event the penalty is increased.
But the use or abuse of office does not adhere to the crime as an element; and even
as an aggravating circumstance, its materiality arises, not from the allegations but on
the proof; not from the fact that the criminals are public officials but from the manner
of the cornmission of the crime.

"Thus, the informations do not indicate that the accused arrested and investigated the
victims and then killed the latter in the course of the investigation but merely allege that
the accused, for the purpose of extracting or extorting the sum of P353,000.00 abducted,
kidnapped and detained the two victims, and failing in their common purpose, they shot
and killed the said victims.

There is no direct relation between the commission of the crime of rape with homicide
and the petitioner's office as municipal mayor because public office is not an essential
element of the crime charged.

For the purpose of determining jurisdiction, it is these allegations that shall control, and
not the evidence presented by the prosecution at the trial.

The offense can stand independently of the office.

Moreover, it is not even alleged in the information that the commission of the crime
charged was intimately connected with the performance of the petitioner's official
functions to make it fall under the exception laid down in People v. Montejo."

Consequently, for failure to show in the amended informations that the charge of
murder was intimately connected with the dis-charge of official functions of the
accused PNP officers, the offense charged in the subject criminal cases is plain
murder and, therefore, within the exclusive original jurisdiction of the Regional
Trial Court, not the Sandiganbayan.
1.

The crime of rape with homicide is not an offense committed in relation to

the office of the petitioner.

3.

Falsification of an official document is not within the jurisdiction of the

Sandiganbayan unless committed in relation to the public office of the public
officer.
13

Acts of Lasciviousness filed against an MTC Judge committed against Court

personnel whom he is authorized to recommend appointment under
Supreme Court circular and used his official position in committing the act
complained of, the crime was held as having been committed in relation to
his office.

While public office is not an element of the crime of lasciviousness he

could not have committed the crime charged were it not for the fact that as
Presiding Judge of the MTCC branch, he has authority to recommend her
appointment as bookbinder.

offense was committed in relation to public office, the court found that the
preparation of police and autopsy reports and the presentation and
gathering of evidence in the investigation of criminal cases are not among
the duties and functions and the broad responsibility to maintain peace and
order cannot be basis for construing that that the criminal acts imputed to
the mayor.

The crime committed as alleged in the amended information are intimately

connected with his office.

Of tampering and falsifying the autopsy reports, were committed in relation

to his office.

A mere allegation that the crime was committed in relation to public office is
not what determines the jurisdiction of the Sandiganbayan.
7.
What is controlling is the specific factual allegation in the information that
would indicate the close intimacy between the discharge of the accuser's
official duties and the commission of the of the offense charged, in order to
qualify the crime as having been committed in relation to public office.
4.

5.

6.

Where the Informations allege that petitioner, then a "public officer,"

committed the crimes of murder and frustrated murder "in relation to his
office," i.e., as "Community Environment and Natural Resources Officer" of
the DENR.
It is apparent from this allegation that the offenses charged are intimately
connected with petitioner's office and were perpetrated while he was in the
performance of his official functions.

Where the killing committed by a PNP officer was committed while in the
course of trying to restore local public order which had been breached by a
fistfight between the victim and two other individuals, the killing was
committed in relation to the accused's public office.

In its Resolution dated August 25,1992, the Sandiganbayan held that

petitioner was "on duty up in order to prevent incursions into the forest and
wooded area," and that petitioner, as a guard, was "precisely furnished with
a firearm in order to resist entry by force or intimidation."

Where the amended information contained allegations that the accused,

petitioner took advantage of his official functions as municipal mayor
ofMeycauayan, Bulacan when he committed the crime of grave threats as
defined in Article 282 of the Revised Penal Code against complainant Simeon
G. Legaspi, a municipal councilor; and. The Office of the Special Prosecutor
charged petitioner with aiming a gun at and threatening to kill Legaspi
during a public hearing, after the latter had rendered a privilege speech
critical of petitioner's administration.

Indeed, if petitioner was not on duty at the DENR checkpoint on January 14,
1990, he would not have had the bloody encounter with Mayor Cortez and
his men.
Thus, based on the allegations in the Informations, the Sandiganbayan correctly assumed jurisdiction over the cases.

Clearly, based on such allegations, the crime charged is intimately

connected with the discharge of petitioner's official functions.

JURISDICTION NOT DETERMINED BY ALLEGATIONS EXPLAINED

If he was not the mayor, he would not have been irritated or angered by
whatever private complainant might have said during said privilege speech."

In Republic u. Asuncion, the Court stressed that the foregoing requisites must be
alleged in the information for the Sandiganbayan to have jurisdiction.

Thus, based on the allegations in the information, the Sandiganbayan

correctly assumed jurisdiction over the case.

It was, however, held in one case that under Section 4, P.D. No. 1606, when the
penalty prescribed by law is higher than Prision Correccional, the Sandiganbayan
has jurisdiction, without stating that the offense was committed in relation to the
offender's office.

The same principles were stressed in Soller v. Sandiganbayan, where the

Municipal Mayor and others were charged in the Sandiganbayan with
Obstruction of Apprehension and Prosecution of Criminal Offenses as denned
and penalized under P.D. No. 1829 for tampering with the autopsy and police
reports to mislead the investigation of the fatal shootout of the victim.

This was a mistake that misled the prosecution in subsequent cases.

Thus, in Republic v. Asuncion, the information did not disclose that the offense of
homicide charged against the accused who was a member of the PNP was
committed in relation to the office of the accused, but the trial court, during the

But aside from noting the absence of specific factual allegations, that the
14

progress of the trial dismissed the case without prejudice for refiling in the
Sandiganbayan.

In other words, the absence in the old information filed before the RTC af an allegation that
petitioner Cunanan has committed the offense in relation to his office is immaterial insofar
as determination of the locus of jurisdiction is concerned.

The Supreme Court en bane speaking thru Justice Davide, Jr., surmised that the
absence of an allegation that the crime was committed "in relation to his office"
was because of the erroneous doctrine in Deloso u. Domingo which conveyed
the impression that this was not necessary.

Indeed, it may be recalled that bhe Asuncion ruling involved a situation where the
information similarly did not contain an averment that the accused public officer had
committed the offense charged while carrying out his official duties.
It was precisely to address the situation that the Supreme Court in Asuncion fashioned the
rule directing the conduct of a preliminary ar separate hearing by a trial court to determine
the presence or absence of that jurisdictional element.

Hence, the court a quo was directed to conduct a preliminary hearing to

determine whether the crime charged was committed by the respondents in
relation to his office.

The RTC's initial assumption of jurisdiction over the offense charged in this case
did not, therefore, prevent it from subsequently declaring itself to be without
jurisdiction, lack of jurisdiction having become apparent from subsequent
proceedings in that case.

If it be determined in the affirmative, then it shall order the transfer of the case
to the Sandiganbayan which shall forthwith docket and proceed with the case as
if the same were originally filed with it.
Otherwise, the court a quo shall proceed with the case.

JURISDICTION
COMPLAINT

In Cunanan u. Arceo, the information for murder against a PNP contained no

averment that the offense charged was in relation to his public office, hence, the
court proceeded to trial and after ooth parties have presented their evidence
declared the case submitted for decision.

The foregoing pronouncements is not in accord with the well-settled rule that
jurisdiction is determined by the allegations of the complaint and not by the
finding of the court after trial.

The trial court applied Republic v. Asuncion, and conducted a hearing solely to
ascertain if accused had committed the offense charged in relation to his office,
and found that he did.

The Asuncion case did not hold that the absence of an allegation of the offense
having been committed "in relation to his office" as immaterial, but justified the
absence thereof as having been caused by the erroneous ruling in the case of
Deloso v. Domingo.

The trial court accordingly dismissed the case for lack of jurisdiction for refiling
with the Sandiganbayan pursuant to the "Asuncion Ruling."

MUST

BE

DETERMINED

BY

ALLEGATIONS

IN

THE

The court did not fashion the rule directing the conduct of a preliminary or
separate hearing to determine the absence or presence of that jurisdictional
element.

In a further order, the trial judge modified the dismissal by ordering instead the
transfer of the case to the Sandiganbayan.

It did so only because of the peculiar circumstance that the omission may have
been due to inadvertence in view of the misleading pronouncement in Deloso.

The Supreme Court speaking thru the Third Division did not consider the
absence of an allegation in the information that the offense was committed in
relation to his office.

Asuncion has not, however, departed from the rule that jurisdiction is to be
determined by the allegations of the complaint.

The Court stated:

On the contrary, Asuncion stressed that the public officers or employees

committed the crime in relation to their office must, however be alleged in the
information for the Sandiganbayan to have jurisdiction over a case under
Section 4(a)(2).

It is firmly settled that jurisdiction over the offense charged is a matter that is conferred by
law. Whenever the above two (2) requisites are present, jurisdiction over the offense is
vested in the Sandiganbayan.
This is true even though the information originally Sled before the RTC did not aver that
the accused public officer public had committed the offense charged in relation to his
office.

This allegation is necessary because of the unbending rule that jurisdiction is

determined by the allegations of the information.
In the subsequent case of People v. Magallanes, where the accused were
15

charged with kidnapping for ransom with murder wherein some of the accused
were members of the PNP, the information does not indicate that the accused
arrested and investigated the victims and then killed the latter in the course of
the investigation.

that jurisdiction by courts other than the Sandiganbayan is to be determined by

the penalty prescribed by law.

The informations merely alleged that the accused, for the purpose of extracting
and extorting money, abducted, kidnapped and detained the two victims, and
failing in their common purpose, they shot and killed the said victims.

a. PCGG

EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER

Under Section 2 of Executive Order No. 14, the Sandiganbayan has exclusive
and original jurisdiction over all cases regarding the "funds, moneys, assets
and properties illegally acquired by former President Ferdinand E. Marcos x x
x civil or criminal, including incidents arising from such cases.

The Supreme Court thru the First Division speaking thru Justice Davide, Jr., also
the ponente in the Asuncion case stated: "For the purpose of determining
jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial." (Italics Supplied)

The decision of the Sandiganbayan is subject to review on certiorari

exclusively by the Supreme Court."

The court held that the allegations of "taking advantage of his position or their
respective positions" incorporated in the informations is not sufficient to bring
the offenses within the definition of "offenses commited in relation to public
office."

In the exercise of its functions, the PCGG is a co-equal body with the
Regional Trial Courts and co-equal bodies have no power to control the other.

In Montilla u. Hilario, such an allegation was merely considered as an allegation

of an aggravating circumstance and not as one that qualifies the crime as
having been committed in relation to public office.

The Regional Trial Courts and the Court of Appeals have no jurisdiction over
the PCGG in the exercise of its powers under the applicable Executive Orders
and Section 26, Article XVIII of the 1987 Constitution and, therefore, may not
interfere with and restrain or set aside the orders and actions of the PCGG
acting for and in behalf of said Commission.

Also, in Bartolome u. People of the Philippines, despite the allegations that the
accused public official committed the crime of falsification of official document
by "taking advantage of their official positions," the court held that the
Sandiganbayan had no jurisdiction over the case, because "the information (did)
not allege that there was an intimate connection between the discharge of
official duties and the commissison of the offense."

b. Exclusive Jurisdiction over Cases Filed by PCGG

The exclusive jurisdiction of the Sandiganbayan over civil and criminal cases
filed by PCGG, as well as incidents arising from, incidental or related to such
cases is subject to review on certiorari exclusively by the Supreme Court.

Accordingly, for lack of an allegation in the informations that the offenses were
committed in relation to the office of the accused.

The fact of sequestration alone does not, however, automatically oust the
RTC of jurisdiction to decide upon the question of ownership (of the subject
gaming and office equipment of the Philippine Casino Operators
Corporation).

PNP officer or were intimately connected with the discharge of the functions of
the accused, the subject cases come within the jurisdiction of the Regional Trial
Court and not of the Sandiganbayan.

The PCGG must be a party to the suit in order that the Sandiganbayan's
exclusive jurisdiction may be correctly invoked.

This was also the ruling in Lacson v. Executive Secretary.

It should, however, be noted that under Republic Act No. 7975, jurisdiction of the
Sandiganbayan over other offenses or felonies committed by public officials and
employees in relation to their office is no longer determined by the prescribed
penalty.

But where the PCGG is not a party to the case, and the complaint is solely
between PAGCOR and PCOC, the RTC has jurisdiction under Sec. 19 ofB.P.
Big. 129 over PAGCOR's action for recovery of personal property, even if said
property was under sequestration by the PCGG.

It is enough that theyare committed by those public officials and employees

enumerated in subsection a, Section 4, R.A. No. 8249.
It is when the erring public official is not among the enumerated functionaries,
16

c.

Sandiganbayan jurisdiction includes all incidents from, incidental to

or related to principal causes of action

The Sandiganbayan has jurisdiction to annul a judgment of partition by the

RTC involving a sequestration related property.

In subsequent cases jointly decided on August 10, 1988, the Court pointed
out that: "(the) exclusive jurisdiction conferred on the Sandiganbayan would
evidently extend not only to the principal causes of action, i.e., the recovery
of alleged ill-gotten wealth, but also to 'all incidents arising from, incidental
to, or related to, such cases,' such as the dispute over the sale of shares, the
propriety of the issuance of ancillary writs or provisional remedies relative
thereto, the sequestration thereof, which may not be made the subject of
separate actions or proceedings in another forum."

d. Jurisdiction Does Not Include Questions of Business Judgment

The Court, however, ruled that Sandiganbayan is without jurisdiction where
the matter does not really seek to question the propriety of the
sequestration by the PCGG or any matter incidental to or arising out of such
sequestration but deals mainly with what is a business judgment.
The Court pointed to Holiday Inn (Phils.), Inc. u. Sandiganbayan, where the
issue related to a management agreement terminated by the Board of
Directors of a sequestered corporation, 2/3 of the members of such board
being composed by PCGG nominees.

Likewise, in the case of Republic v. Sandiganbayan, the Court ruled that

while the PCGG is ordinarily allowed a free hand in the exercise of its
administrative or executive function, the Sandiganbayan is empowered to
determine in an appropriate case, if in the exercise of such functions, the
PCGG has gravely abused its discretion or has overstepped the boundaries
of the power conferred upon it by law.

The action for intervention was lodged with the Sandiganbayan in the main
sequestration case.

The Court stated:

The petitioners in that case averred that the Sandiganbayan has jurisdiction
over the action since the action to terminate the management agreement
bears the imprimatur of the PCGG nominees sitting at the Board, making
PCGG the real party-in-interest.

Any act or order transgressing the parameter of the objectives for which the PCGG
was created, if tainted with abuse of discretion, is subject to a remedial action by the
Sandiganbayan, the court vested with exclusive and original jurisdiction over cases
involving the PCGG including cases filed by those who challenge PCGG's acts or
orders

The Resolution of the Sandiganbayan, which was upheld by the Supreme

Court, ruled on the contrary, thus:

Settled is the rule that when a law confers jurisdiction upon a court, it is deemed to
have all the incidental powers necessary to render the exercise of such jurisdiction
effective

This Court is of the view that its jurisdiction refers to acts of the PCGG acting as such
whether alone or with other persons, natural or juridical, and not generally where
PCGG representatives act as part of another juridical person or entity.

In PCGG v. Sandiganbayan, the Court stated that there is a need to

vigorously guard sequestered assets and preserve them pending resolution
of the sequestration case before the Sandiganbayan, considering the
paramount public policy for the recovery of ill-gotten wealth.

A rule of thumb might be thus: if the PCGG can be properly impleaded on a cause of
action asserted before this Court as a distinct entity, then this Court would generally
exercise jurisdiction; otherwise, it would not, because, then the 'PCGG character' of
the act or omission in question may, at best, be only incidental.

The Court ruled that sequestered assets and corporations are legally and
technically in custodia legis, under the administration of the PCGG.
Executive Order No. 2 specifically prohibits the transfer, conveyance,
encumbrance, or otherwise depletion or concealment of such assets and
properties, under pain of penalties prescribed by law.

After all, the presence of PCGG representatives in sequestered companies does not
automatically tear down the corporate veil that distinguishes the corporation from its
officers, directors or stockholders.
Corporate officers whether nominated by the PCGG or not act, insofar as third parties
are concerned, are (sic) corporate officers. Contracts entered into by the San Miguel
Corporation, for example, in connection with its poultry operations and the
cancellations thereof, are not PCGG activities which would justify the invocation of this
Court's jurisdiction, even if the contract or suit were unanimously approved by its
board of directors where PCGG representatives sit.

Thus, an action which can result in the deterioration and disappearance of

the sequestered assets cannot be allowed, unless there is a final
adjudication and disposition of the issue as to whether these assets are illgotten or not, since it may result in damage or prejudice to the Republic of
the Philippines.

This Court added:

17

Money Laundering Offense. Money laundering is a crime whereby the

proceeds of an unlawful activity are transacted, thereby making them
appear to have originated from legitimate sources. It is committed by the
following:

The subject matter of petitioner's proposed complaint-in-intervention involves

basically, an interpretation of contract, i.e., whether or not the right of first refusal
could and/or should have been observed.
The question of whether or not the sequestered property was lawfully acquired by
Roberto S. Benedicto has no bearing on the legality of the termination of the
management contract by NRHDC's Board of Directors.

(a) Any person knowing that any monetary instrument or property

represents, involves, or relates to the proceeds of any unlawful activity,
transacts or attempts to transact said monetary instrument or property.

The two are independent and unrelated issues and resolution of which may proceed
independently of each other.

(b) Any person knowing that any monetary instrument or property involves
the proceeds of any unlawful activity, performs or fails to perform any
act as a result of which he facilitates the offense of money laundering
referred to in paragraph (a) above.

. . . (T)he Sandiganbayan correctly denied jurisdiction over the proposed complaint-inintervention.

The original and exclusive jurisdiction given to the Sandiganbayan over PCGG cases
pertains to (a) cases filed by the PCGG, pursuant to the exercise of its power under
Executive Order Nos. 1, 2 and 14, as amended by the Office of the President, and
Article XVIII, Section 26 of the Constitution, i.e., where the principal cause of action is
the recovery of ill-gotten wealth, as well as all incidents arising from, incidental to or
related to such cases and (b) cases filed by those who wish to question or challenge
the commission's acts or orders in such cases.

(c) Any person knowing that any monetary instrument or property is

required under this Act to be disclosed and filed with the Anti-Money
Laundering Council (AMLC), fails to do so.
JURISDICTION OF MONEY LAUNDERING CASES

JURISDICTION OVER FORFEITURE CASES

The regional trial courts shall have jurisdiction to try all cases on money
laundering.

After reviewing the legislative history of the Sandiganbayan and the Office of the
Ombudsman, the Court declared that

Those committed by public officers and private persons who are in conspiracy
with such public officers shall be under the jurisdiction of the Sandiganbayan.

"Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original jurisdiction in all
cases involving violations of R.A. No. 3019, R.A. No. 1379, and Chapter II, Sec. 2, Title VII,
Book II of the Revised Penal Code, where one or more of the accused are officials
occupying the following positions whether in a permanent, acting or interim capacity, at
the time of the commission of the offense.
It is a civil procreedings in rem but criminal in nature

The foregoing section apparently refers to the criminal offense of anti-money

laundering as defined in Section 4 of the law.
a. The Civil Forfeiture Proceedings
The law provided that in petitions for civil forfeiture the Revised Rules of
Court shall apply.

JURISDICTION OVER MONEY LAUNDERING CASES

In consequence thereof, the Supreme Court issued the

The Anti money-laundering law provides for two kinds of cases which are
independent of each other.

RULE OF PROCEDURE IN CASES OF CIVIL FORFEITURE, ASSET

PRESERVATION, AND FREEZING OF MONETARY INSTRUMENT, PROPERTY, OR
PROCEEDS REPRESENTING, INVOLVING, OR RELATING TO AN UNLAWFUL
ACTIVITY OR MONEY LAUNDERING OFFENSE UNDER REPUBLIC ACT NO.
9160, AS AMENDED.

The criminal action for anti-money laundering offense (Sec. 4) and the civil
forfeiture proceedings (Sec. 12) which may be filed separately and proceed
independently of the criminal prosecution.
a. The Criminal Action

The Rule expressly provided that

Republic Act No. 9160 as amended (The Anti-Money Laundering Act

of 2001) defines

The Rule shall govern all proceedings for civil forfeiture, asset preservation
and freezing of monetary instrument, property, or proceeds representing,
18

involving, or relating to an unlawful activity or a money laundering offense

under Republic Act No. 9160, as amended.

Forfeiture is concerned it is the AMLC that is authorized to institute civil

forfeiture proceedings and all other remedial proceedings through the Office of
the Solicitor General with the Regional Trial Court.

The Revised Rules of Court shall apply suppletorily when not inconsistent
with the provisions of this special Rule.

There is no similar authority to file such cases with the Sandiganbayan.

Title II of the Rule provided only for Civil Forfeiture in the Regional Trial
Court. Thus

It is only in criminal cases that the AMLC is authorized to cause the filing of
complaints with the Department of Justice or the Ombudsman for the
prosecution of money laundering offenses.

SEC.

2. Party to Institute Proceedings. The Republic of the Philippines,

through the Anti-Money Laundering Council, represented by the Office of the
Solicitor General, may institute actions for civil forfeiture and all other
remedial proceedings in favor of the State of any monetary instrument,
property, or proceeds representing, involving, or relating to an unlawful
activity or a money laundering offense.

But unlike Civil Forfeiture under R.A. No. 1379 which specifically authorized its
filing by the Ombudsman or thru the Office of Special Prosecutor in the
Sandiganbayan.
No similar authority have been granted the Ombudsman with respect to civil
forfeiture under the Anti-money Laundering Law.

SEC.

3. Venue of Cases Cognizable by the Regional Trial Court. A petition

for civil forfeiture shall be filed in any regional trial court of the judicial
region where the monetary instrument, property, or proceeds representing,
involving, or relating to an unlawful activity or to a money laundering
offense are located;

JURISDICTION OF SANDIGANBAYAN TO BE DISTINGUISHED

JURISDICTION OF OMBUDSMAN OVER PUBLIC OFFICERS

provided, however, that where all or any portion of the monetary instrument,
property, or proceeds is located outside the Philippines, the petition may be
filed in the regional trial court in Manila or of the judicial region where any
portion of the monetary instrument, property, or proceeds is located, at the
option of the petitioner.
b. The Rule Does
Sandiganbayan

Not

Provide

for

Civil

Forfeiture

Before

FROM

a.

The Jurisdiction of the Ombudsman to investigate and prosecute Public

Officers for any illegal act or omission is not exclusive but a shared
concurrent authority in respect of the offense charged.

b.

The Ombudsman's primary power to investigate is dependent on the cases

cognizable by Sandiganbayan.
The Ombudsman's primary jurisdiction is dependent on the cases cognizable
by the former.

the
But the authority is concurrent with other similarly authorized agencies.

The law created an Anti-Money Laundering Council (AMLC) tasked with

implementing the law, was empowered x x x

However, the Ombudsman may take over the investigation of such case at
any stage from any investigative agency of the Government.

(3) to institute civil forfeiture proceedings and all other

proceedings through the Office of the Solicitor General;

This is only directory.

remedial

SANDIGANBAYAN NOW WITH CERTIORARI JURISDICTION

(4) to cause the filing of complaints with the Department of Justice or the
Ombudsman for the prosecution of money laundering offenses;

R.A. No. 7975 expressly conferred certiorari jurisdiction in the Sandiganbayan, in

aid of its appellate jurisdiction.

(5) to initiate investigations of covered transactions, money laundering

activities and other violations of this Act.

WHERE PUBLIC OFFICIAL CHARGED AS MERE ACCOMPLICE OF PRIVATE

INDIVIDUAL

CIVIL AND CRIMINAL FORFEITURE DISTINGUISHED

Section 4 of Presidential Decree No. 1606, as amended by Presidential Decree
No. 1861, provides in part "that in case private individuals are charged as co-

It is to be noted that under the Anti-Money Laundering Act, so far as Civil

19

principals, accomplices, or accessories with the public officers or employees,

including those employed in government-owned or -controlled corporations, they
shall be tried jointly with said public officers and employees."

JURISDICTION TO ANNUL JUDGMENTS

The Sandiganbayan has jurisdiction to annul judgments of the Regional Trial
Court in a sequestration related case, such as a judgment of the Regional Trial
Court for the enforcement of a foreign judgment involving property that has
been lawfully sequestered.

The rule that "accessory follows the principal" appears to underlie the provision
of Presidential Decree No. 1606, for when private individuals are charged as coprincipals, accomplices or accessories with the public officers or employees, the
implication is that the latter was charged as principal.
Hence, if a public officer or employee is charged as a mere accomplice or
accessory with a private individual, as principal, the corollary implication is that
the former shall be tried jointly with the latter in the ordinary courts.

JURISDICTION OVER MILITARY AND PNP

Republic Act No. 7055 AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER
THE MILITARY BY RETURNING TO THE CIVIL COURTS THE JURISDICTION OVER
CERTAIN OFFENSES INVOLVING MEMBERS OF THE ARMED FORCES OF THE
PHILIPPINES, OTHER PERSONS SUBJECT TO MILITARY LAW, AND THE MEMBERS
OF THE PHILIPPINE NATIONAL POLICE, REPEALING FOR THE PURPOSE CERTAIN
PRESIDENTIAL DECREES.

The rationale is justified by the total absence of a provision in Presidential

Decree No. 1606 directing that all criminal cases involving public officers and
employees, without distinction, be tried by the Sandiganbayan, even if the
criminal involvement of the public officer is minor or subordinate and inferior to
that of the private individuals charged as principals in the case.

SECTION 1. Members of the Armed Forces of the Philippines and other persons
subject to military law, including members of the Citizens Armed Forces
Geographical Units, who commit crimes or offenses penalized under the Revised
Penal Code, other special penal laws, or local government ordinance, regardless
of whether or not civilians are co-accused, victims, or offended parties which
may be natural or juridical persons, shall be tried by the proper civil court,
except when the offense, as determined before arraignment by the civil court, is
service-connected, in which case the offense shall be tried by court-martial:

The jurisdiction of the Sandiganbayan is not meant to be so broad and allencompassing.

EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER PCGG
Under Section 2 of Executive Order No. 14, the Sandiganbayan has exclusive
and original jurisdiction over all cases regarding the "funds, moneys, assets and
properties illegally acquired by former President Ferdinant E. Marcos x x x" civil
or criminal, including incidents arising from such cases.

Provided, That the President of the Philippines may, in the interest of justice,
order or direct at any time before arraignment that any such crimes or offenses
be tried by the proper civil courts.

The decision of the Sandiganbayan is subject to review on certiorari exclusively

by the Supreme Court.
In the exercise of its functions, the PCGG is a co-equal body with the Regional
Trial Courts and co-equal bodies have no power to control the other.

As used in this Section, service-connected crimes or offenses shall be limited to

those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of
Commonwealth Act No. 408, as amended.

The Regional Trial Courts and the Court of Appeals have no jurisdiction over the
PCGG in the exercise of its powers under the applicable Executive Orders and
Section 26, Article XVIII of the 1987 Constitution and, therefore, may not
interfere with and restrain or set aside the orders and actions of the PCGG acting
for and in behalf of said Commission.

In imposing the penalty for such crimes or offenses, the court-martial may take
into consideration the penalty prescribed therefor in the Revised Penal Code,
other special penal laws, or local government ordinances.
SEC. 2. Subject to the provisions of Section 1 hereof, all cases filed or pending
for filing with court-martial or other similar bodies except those where the
accused had already been arraigned, shall, within thirty (30) days following the
effectivity of this Act, be transferred to the proper civil courts:

EXCLUSIVE JURISDICTION OVER CASES FILED BY PCGG

The exclusive jurisdiction of Sandiganbayan over civil and criminal cases filed by
PCGG, as well as incidents arising from, incidental or related to such cases is
subject to review on certiorari exclusively by the Supreme Court.

Provided, That the Chief of the Armed Forces of the Philippines shall, upon
petition before commencement of trial and with the written consent of the
accused, order the transfer of such expected case or cases to the proper civil
courts for trial and resolution.
20

JURISDICTION OF MILITARY COURT

SEC. 3. Presidential Decree Nos. 1822, 1822-A, 1850 and 1952, and all acts
general orders, executive orders, and other presidential issuances, rules and
regulations inconsistent with this Act are hereby repealed or amended
accordingly.

A military officer being dropped from the roll amounts to a dishonorable

discharge which does not terminate his amenability for the trial in a court
martial for the offense he had committed while an officer of the military.
The fact that Colonel Abadilla was dropped from the rolls should not lead to the
conclusion that he is now beyond the jurisdiction of the military authorities.

The law does not include violations of Republic Act 3019 otherwise known as the
Anti-Graft Law even if service-connected. Violation of this law falls under the
jurisdiction of the Sandiganbayan or the Regional Trial Court depending on the
nature of the position of the offender.

If such a conclusion were to prevail, his very own refusal to clear his name and
protect his honor before his superior officers in the manner prescribed for and
expected from a ranking military officer would be his shield against prosecution.

JURISDICTION OVER THE PNP BY REGULAR COURTS

His refusal to report for duty or to surrender when ordered arrested, which led to
his name being dropped from the roll of regular officers of the military cannot
thereby render him beyond the jurisdiction of the military courts for offenses he
committed while still in the military service.

SEC. 46. Jurisdiction in Criminal Cases. Any provision of law to the contrary
notwithstanding, criminal cases involving PNP members shall be within the
exclusive jurisdiction of the regular courts;
Provided, That the courts-martial appointed pursuant to Presidential Decree No.
1850 shall continue to try PC-INP members who have already been arraigned, to
include appropriate actions thereon by the reviewing authorities pursuant to
Commonwealth Act No. 408, otherwise known as the Articles of War, as
amended and Executive Order No. 178, otherwise known as the Manual for
Courts-Martial;

MILITARY COURTS HAVE NO JURISDICTION OVER CIVILIANS

A military commission or tribunal cannot try and exercise jurisdiction over
civilians for offenses allegedly committed by them as long as civil courts are
open and functioning.
Any judgment rendered by such body relating to a civilian is null and void for
lack of jurisdiction.
The Supreme Court clarified in Tan u. Barrios that "Olaguer should, in principle,
be applied prospectively only to future cases and cases still ongoing or not yet
final when that decision was promulgated.

Provided, further, That criminal cases against PC-INP members who may have
not yet been arraigned upon the effectivity of this Act shall be transferred to the
proper city or provincial prosecutor or municipal trial court judge. 143
MEANING OF REGULAR COURTS

Hence, there should be no retroactive nullification of final judgments, whether of

conviction or acquittal, rendered by military courts against civilians before the
promulgation of the Olaguer decision.

It has been held that the term regular courts in Section 46 of R.A. No. 6975
means civil courts.

Such final sentences should not be disturbed by the State."

There could have been no other meaning intended since the primary purpose of
the law is to remove from courts martial the jurisdiction over criminal cases
involving members of the PNP and to vest it in the courts within the judicial
system, i.e., the civil courts which as contradistinguished from courts martial,
are the regular courts.

The Supreme Court went on to state:

"Only in particular cases where the convicted person or the State shows that there was a
serious denial of the Constitutional rights of the accused, should the nullity of the sentence
be declared and retrial be ordered based on the violation of the constitutional rights of the
accused, and not on Olaguer doctrine.

Courts martial are not courts within the Philippine judicial system; they pertain
to the executive department of the government and are simply instrumentalities
of the executive power.

If a retrial is no longer possible, the accused should be released since the judgment
against him is null on account of the violation of his constitutional rights and denial of due
process."

Otherwise stated, courts martial are not regular courts.

The Sandiganbayan are regular courts within the law's contemplation.

JURISDICTION OVER THE PERSON WHEN ACQUIRED

21

Jurisdiction over the person of the accused is acquired upon his arrest or upon
his voluntary appearance.

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued thereof, or from
assailing the regularity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his plea.

RULE IN MILITARY PROCEEDINGS

The rule that jurisdiction over a person is acquired by his arrest applies only to
criminal proceedings instituted before the regular courts.

The court shall resolve the matter as early as practicable but not later than the start of the
trial of the case.

It does not apply to proceedings under military law.

In applications for bail, however, the ACCUSED MUST BE IN CUSTODY OF LAW to

be entitled to bail.
If the accused is charged with a capital offense or an offense punishable by
reclusion perpetua or life imprisonment, the Judge must have jurisdiction over
the person of accused and over the case.
The rationale behind the rule is that it discourages and prevents resort to the
former pernicious practice whereby the accused could just send another in his
stead to post his bail, without recognizing the jurisdiction of the court by his
personal appearance therein and compliance with the requirements therefor.
Thus, in Feliciano v. Pasicolan, where the petitioner who had been charged with
kidnapping with murder went into hiding without surrendering himself, and
shortly thereafter, filed a motion asking the court to fix the amount of bail bond
for his release pending trial, the Supreme Court categorically pronounced that
said petitioner was not eligible for admission to bail.

WAIVER
Any objection to the procedure leading to the arrest must be opportunely raised
before the accused enters his plea.
The accused is also barred from raising the question of jurisdiction over his person if he enters his plea instead of objecting to the irregularity of the issuance of
the warrant of arrest.
VOLUNTARY APPEARANCE
In a prosecution under Republic Act No. 3019, the Anti-Graft and Corrupt
Practices Act, the appearance of a counsel for an accused who has not been
arrested, in the pre-suspension hearing required under said law, is a voluntary
appearance.

The person seeking his provisional release under the auspices of bail need not
even wait for a formal complaint or information to be filed against him as it is
available to "all persons" where the offense is bailable.

The filing of a motion to dismiss presupposes that the accused is within

Philippine territory; otherwise, the "voluntary appearance" is an exercise in
futility.

This rule is, of course, subject to the condition or limitation that the applicant is
in the custody of the law.

Physical control is indispensable.

If the accused is outside of the Philippines, he cannot be said to be under the
physical control of the Court.
Voluntary appearance is accomplished by appearing for arraignment.
Such jurisdiction once acquired is not lost upon the instance of the parties, such
as when the accused escapes from the custody of the law, but continues until
the case is terminated.

The Court should not even allow a motion for bail to be set for hearing unless it
has acquired jurisdiction over the person of the accused and the case by its
filing in Court.
Custody How Acquired: The accused must be in custody of the law, either:
a) By virtue of a warrant or warrantless arrest; or
b) When he voluntarily submitted himself to the jurisdiction of the Court by
surrendering to the proper authorities.

In such case, the Court may proceed with the trial in absentia of the accused,
provided that there has been an arraignment.
The cases holding that where the accused, after his arrest, filed a petition for
bail, it is too late for him to object thereafter to the regularity of the issuance of
the warrant of arrest are no longer true.

The mere filing of an application for bail is not sufficient.

Under Section 26, Rule 114 of the 2000 Rules on Criminal Procedure:

In other cases, the filing of motion or other papers invoking affirmative relief is a

This principle is, however, only for purposes of bail.

22

submission to court's jurisdiction.

Hence, an application for admission to bail of a person against whom a criminal
action has been filed, but who is still at large is premature.
As a matter of course, upon voluntary appearance of the accused, the judge
should require another motion for bail and set the same for hearing, with the
prosecution notified thereof.
Unless the accused is in the custody of the law, the court may not even set his
application for bail for hearing.

submission of one's person to the jurisdiction of the court.

This is in the case of pleadings whose prayer is precisely for the avoidance of
the jurisdiction of the court, which only leads to a special appearance.
These pleadings are:
(1) in civil cases, motions to dismiss on the ground of lack of jurisdiction over
the person of the defendant, whether or not other grounds for dismissal are
included;

EXCEPTIONS WHEN MERE FILING OF MOTION SUFFICIENT

In Paderanga v. Court of Appeals (supra), the accused having filed his motion for
admission to bail before he was actually and physically placed under arrest, as
he was then confined at the hospital, and his counsel manifested before the
court at the hearing of the motion that he was submitting custody of the person
of the accused to the local chapter president of the Integrated Bar of the Philip pines, and for purposes of said hearing on his bail application, he be considered
as being in the custody of the law, the Supreme Court held that he may at that
point and in the factual ambiance thereof, be considered as being constructively
and legally under custody.

(2) in criminal cases, motions to quash a complaint on the ground of lack of

jurisdiction over the person of the accused; and
(3) motions to quash a warrant of arrest. The first two are consequences of the
fact that failure to file them would constitute a waiver of the defense of lack
of jurisdiction over the person.
The third is a consequence of the fact that it is the very legality of the court
process forcing the submission of the person of the accused that is the very
issue in a motion to quash a warrant of arrest.

Thus, in the likewise peculiar circumstances which attended the filing of his bail
application with the trial court, for purposes of the hearing thereof he should be
deemed to have voluntarily submitted his person to the custody of the law and
necessarily, to the jurisdiction of the trial court which thereafter granted bail as
prayed for.

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over

the person of the accused is deemed waived by the accused when he files any
pleading seeking an affirmative relief, except in cases when he invokes the
special jurisdiction of the court by impugning such jurisdiction over his person.

In fact, an arrest is made either by an actual restraint of the arrestee or merely

by his submission to the custody of the person making the arrest.

Therefore, in narrow cases involving special appearances, an accused can invoke

the processes of the court even though there is neither jurisdiction over the
person nor custody of the law.

The latter mode may be exemplified by the so-called "house arrest" or, in case
of military offenders, by being "confined to quarters" or restricted to the military
camp area.

However, if a person invoking the special jurisdiction of the court applies for bail,
he must first submit himself to the custody of the law.

The accused who desires to question the jurisdiction of a court over his person
must appear in court only for the specific purpose, and if he raises other
questions, he waived the objection to question the jurisdiction over her person.
Failure to quash the information on the ground that, by the defective arrest, the
court did not acquire jurisdiction over the person of the accused is a waiver to
question jurisdiction over his person.
Under Section 20, Rule 14 of the 1997 Rules on Civil Procedure: "The inclusion in
a motion to dismiss of other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary appearance."

In cases not involving the so-called special appearance, the general rule applies,
i.e., the accused is deemed to have submitted himself to the jurisdiction of the
court upon seeking affirmative relief
Notwithstanding this, there is no requirement for him to be in the custody of the
law.

There is, however, an exception to the rule that filing pleadings seeking
affirmative relief constitutes voluntary appearance, and the consequent

JURISDICTION OVER THE PERSON OF THE ACCUSED BY ARREST OR

23

VOLUNTARY SURRENDER
AFFIRMATIVE RELIEF

NOT CONDITION FOR COURT

TO GRANT
This phrase was ane of the basis of the ruling of the Supreme Court in the
case of Zaidivia v. Reye1 excluding offenses subject to summary procedure from
the general rule on the interruption of the period of prescription.

Except in applications for bail, it is not necessary for the court to first acquire
jurisdiction over the person of the accused to dismiss the case or grant other
relief.

Under the amendment, the institution of all criminal actions shall be the
same.

The outright dismissal of the case even aefore the court acquires jurisdiction
over the person of the accused s authorized under Section 6(a), Rule 112 of the
Revised Rules of criminal Procedure and the Revised Rules on Summary
Procedure.
In Allado v. Diokno, the case was dismissed on motion of the iccused for lack of
probable cause without the accused having been arrested.

Second: Under the former rule, the commencement of actions by filing the
complaint with the appropriate officer for preliminary investigation were limited
to cases falling under the jurisdiction of the Regional Trial Court.
This is no longer true.

In Paul Roberts v. Court of Appeals, the Court was ordered to hold the issuance
of a warrant of arrest in abeyance pending review by the Secretary of Justice.

Under Section 1 of Rule 112, except as provided in Section 7 of said rule,

referring to lawful arrests without a warrant, preliminary investigation is required
for an offense punishable by imprisonment of at least four (4) years, two (2)
months and one (1) day.

And in Lacson v. Executive Secretary, the Court ordered the case transferred
from the Sandiganbayan to the RTC which eventually ordered the dismissal of
the case for lack of probable cause.

The reason why originally there was no preliminary investigation in cases

triable by justice of the peace or municipal courts was because they involved
only minor offenses or misdemeanors.
The criminal cases then exclusively triable by municipal courts were those
where the penalty provided by law did not exceed six months imprisonment
and/or a P200.00 fine.

It was held in People v. Chun, that where the accused believed that the order of
the holding that bail for the crime charged against him is not a matter of right is
null and void, he need not wait to be arrested before filing the corresponding
petition in an appropriate proceeding assailing the order.

Subsequently, however, the offenses exclusively triable by municipal courts

were increased to those punishable with imprisonment of not exceeding four
years and two months and/or a fine ofP4.000.00 and were further increased to
those punishable with imprisonment not exceeding six (6) years irrespective of
the amount of the fine.

THE REVISED RULES OF CRIMINAL PROCEDURE

(A.M. No. 00-5-03-SC)
EFFECTIVE DECEMBER 1, 2000
RULE 110
PROSECUTION OF OFFENSES

Clearly, therefore, these offenses were not minor or misdemeanors and yet
no preliminary investigation was required.
Since, the type of offenses that requires preliminary investigation have been expanded by
amendment to Section 1, Rule 112 to offenses punishable by imprisonment of at least four
(4) years, two (2) months and one (1) day, Section 1 required such cases to first be filed
for preliminary investigation.

SECTION 1.
Institution of Criminal Actions
There are three (3) amendments in this rule:

Section 1 has accordingly been amended by removing therefrom the

limitation to offenses commenced by complaint before the appropriate officer for
preliminary investigation only to those offenses cognizable by the Regional Trial
Court, but included to a limited extent cases cognizable by the municipal trial
courts.

First: The removal of cases governed by the Rule on Summary Procedure in

special cases from the manner of institution of criminal actions above provided
for.
The opening phrase in the former Rule "For offenses not subject to the
rule on summary procedure in special cases" was deleted.

It should also be noted section 5, Rule II of Administrative No. 8 of the

24

Office of the Ombudsman provides that: "Cases falling under the jurisdiction of
the Office of the Ombudsman which are cognizable by municipal trial courts,
including those subject to the Rule on Summary Procedure may only be filed in
court by Information approved by the Ombudsman, or the proper Deputy
Ombudsman in all other cases."

Hence, the phrase "unless otherwise provided in special laws" was inserted
as an exception to the general rule that such institution shall interrupt the period
of prescription of the offense charged.
Act No. 3326, as amended is entitled: "An Act To Establish Periods of
Prescription for Violations Penalized By Special Laws and Municipal Ordinances
and to Provide When Prescription Shall Begin To Run."

Third: Under the former rule, prescription is interrupted in all cases upon
the institution of the criminal action.
The 1988 Amendments abandoned the ruling of the Supreme Court in
People u. Olarte and adopts the ruling in Francisco u. Court of Appeals, to the
effect that the filing of the complaint with the fiscal's office also interrupts the
period of prescription of the offense charged.
This includes cases filed with the ombudsman for preliminary investigation.

It provides among others that "violations

ordinances shall prescribe after two months."

penalized

by

municipal

The exception therefore, includes violations of municipal ordinances.

A distinction is made between the "institution" and the "commencement"
of a criminal action.

The Rule does not apply to violations of municipal ordinances and special
laws.

For offenses which require a preliminary investigation, the criminal action is

instituted by filing the complaint with the appropriate officer for preliminary
investigation.

In Zaidivia u. Reyes, the court held that the interruption of the prescriptive
period upon the institution of the complaint under Section 1 of Rule 110, does
not apply to cases for violation of special acts and municipal ordinances.

The appropriate officer may be the fiscal or the municipal circuit trial court.
This is governed by Act No. 3326 and is interrupted only by the institution
of judicial proceedings for its investigation and punishment.

The criminal action is commenced when the complaint or information is

filed in court.

The Court clarified in Reodica u. Court of Appeals, that even if the case is
governed by the Revised Rule on Summary Procedure (which is not a violation of
a municipal ordinance or special law), such as reckless imprudence resulting in
slight physical injuries, prescription is interrupted with the filing of the complaint
in the Fiscal's office.
In view, however, of the ruling in Zaidivia v. Reyes, that the rules cannot
amend special laws, and under Act No. 3326, the period of prescription for
offenses punishable by special laws, prescription shall only be interrupted upon
the institution of judicial proceedings for its investigation and punishment, the
rule has accordingly been amended to except therefrom offenses punishable by
special laws so far as prescription is concerned.

In offenses cognizable by inferior courts, the complaint or information is

filed directly with said courts, or the complaint is filed with the fiscal. However,
in Metro Manila and other chartered cities, the complaint may be filed only with
the fiscal.
It may, however also be noted that under the Katarungan Pambarangay
Law while the dispute is under mediation conciliation, or arbitration, the
prescriptive periods for offenses and cause of action under existing laws shall be
interrupted upon filing of the complaint with punong barangay.
The prescriptive periods shall resume upon receipt by the complainant of
the complaint or the certificate or repudiation or of the certification to file action
issued by the lupon or pangkat secretary:

The main basis of the said ruling of the Supreme Court was that under Act
No. 3326 as amended, the prescriptive period for violation of special laws and
municipal ordinances was interrupted only upon the filing of the complaint or
information in court.

Provided, however, That such interruption shall not exceed sixty (60) days
from the filing of the complaint with the punong barangay

This ruling was confirmed in the case of Reodica v. Court ofAppeals 11 as an

exception to the general rule under Article 91 of the Revised Penal Code that the
filing of the complaint, whether for preliminary investigation or for action on the
merits, interrupts prescription.

And is interrupted even if the case filed is not within the jurisdiction of the
court.

25

PRESCRIPTION INTERRUPTED EVEN IF COURT IS WITHOUT JURISDICTION

expressly repealed Presidential Decree No. 1508, otherwise known as the

Katarungang Pambarangay Law.

Prescription is interrupted with the filing of the case even if the court is
without jurisdiction.
The Court, citing Olarte and the subsequent cases of Francisco v. Court of
Appeals and People v. Cuaresma.
Thus, even if preliminary investigation is not required, "the prescriptive
period for the quasi offenses was interrupted by the filing of complaint with the
fiscal's office three days after the vehicular mishap and remained tolled pending
the termination of the case."

In lieu thereof, Chapter 7, Title I, Book III provides for the Katarungang
Pambarangay.
Pertinent provisions of the law are as follows:
SEC. 412. Conciliation.
(a) Pre-condition to filing of complaint in court. No complaint, petition, action,
or proceeding involving any matter within the authority of the lupon shall be
filed or instituted directly in court or any other government office for
adjudication, unless there has been a confrontation between the parties
before the Lupon chairman or the pangkat, and that no conciliation or
settlement has been reached as certified by the Lupon secretary or pangkat
secretary as attested to by the Lupon chairman or pangkat chairman or
unless the settlement has been repudiated by the parties thereto.

Exceptions: Unless otherwise provided by special laws (Act 3326) includes

violations of municipal ordinance) Prescription Commences from commission or
discovery until institution of judicial proceedings.
For Violation of Special Laws
It has been settled that Section 2 of Act No. 3326 governs the computation
of prescription of offenses defined and penalized by special laws.

(b) Where parties may go directly to court. The parties may go directly to
court in the following instances:

Section 2 of Act No. 3326 was correctly applied by the anti-graft court in
determining the reckoning period for prescription in a case involving the crime of
violation of Republic Act No. 3019, as amended.

(1) Where the accused is under detention;

(2) Where a person has otherwise been deprived of personal liberty calling
for habeas corpus proceedings;
(3) Where actions are coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal property, and
support pendente life; and
(4) Where the action, may otherwise, be barred by the statute of
limitations.

Since the law alleged to have been violated, i.e., paragraphs (e) and (g) of
Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule in the
computation of the prescriptive period is Section 2 of Act No. 3326, as amended,
which provides:
Sec. 2. Prescription should begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the
discovery thereof and institution of judicial proceedings for its investigation and
punishment.

(c) Conciliation among members of indigenous cultural communities. The

customs and traditions of indigenous cultural communities shall be applied
in settling disputes between members of the cultural communities.

The prescription shall be interrupted when the proceedings are instituted

against the guilty person and shall begin to run again if the proceedings are
dismissed for reasons not constituting double jeopardy

However, under Republic Act No. 837, the ICCs/Ps shall have the right to
use their own commonly accepted justice systems, conflict resolution
institutions, peace building processes or mechanisms and other customary laws
and practices within their respective communities and as may be compatible
with the national legal system and with internationally recognized human rights.

This simply means that if the commission of the crime is known, the
prescriptive period shall commence to run on the day it was committed.
The Civil Law rules on prescription is applicable to criminal

When disputes involve ICCs/Ps, customary laws and practices shall be used
to resolve the dispute.

Condition Precedent to Filing of Case

The National Commission on ICCs/Ps NCIP through its regional offices shall
have jurisdiction over all claims and disputes involving ICCs/Ps, provided,

The Local Government Code of 1991 which took effect on January 1, 1992,
26

however, that no such dispute shall be brought to the NCIP unless the parties
have exhausted all remedies provided under their customary laws to settle the
dispute as certified to by the Council of Elders/Leaders who participated in the
attempt at such settlement.

SEC. 3.
Complaint Defined
Who May File Complaint

Decisions of the NCIP shall be appealable to the Court of Appeals by way of a petition for
review.

SEC. 408. Subject Matter for Amicable Settlement; Exception Thereto.

The lupon of each barangay shall have the authority to bring together the
parties actually residing in the same city or municipality for amicable settlement
of all disputes except:

a.

The offended party.

b.

Any peace officer.

c.

Other public officer charged with the enforcement or execution of the law
violated.

(a) Where one party is the government or any subdivision or instrumentality

thereof;

The provincial fiscal is not among the three.

(b) Where one party is a public officer or employee, and the dispute relates to
the performance of his official functions;

The information filed by him which instituted the proceeding cannot be

considered as a complaint.

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine

exceeding Five thousand pesos (P5,000.00);

1)

Meaning of the term "offended party." The person actually injured and
whose feeling is offended.

(d) Offenses where there is no private offended party;

2)

A widow, however, maybe considered an offended party within the

meaning of the applicable rules of court entitled to file a complaint for
the murder of her husband.2

(e) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;

Justice Davide, Jr., citing Section 12, Rule 110 refers to an "offended party" in the
commission of a crime, public or private, as the party to whom the offender is
civilly liable in light of Article 100 of the Revised Penal Code that "every person
criminally liable is also civilly liable.

(f) Disputes involving parties who actually reside in barangays of different cities
or municipalities, except where such barangay units adjoin each other and
the parties thereto agree to submit their differences to amicable settlement
by an appropriate lupon;and

Invariably then, the private individual to whom the offender is civilly

liable is the offended party.
In bigamy both the first and second spouses may be the offended
parties depending on the circumstances

(g) Such other classes of disputes which the President may determine in the
interest of justice or upon the recommendation of the Secretary of Justice.
3)

The court in which non-criminal cases not falling within the authority of the
lupon under this Code are filed may, at any time before trial, motu proprio refer
the case to the lupon concerned for amicable settlement.
d.
SEC. 2.
The Complaint or Information

The right to commence criminal prosecution is confined to

representatives of the government and persons injured; otherwise, it
shall be dismissed.

But One who is not the offended party file a complaint for preliminary
investigation.
Unless the offense subject of the complaint is one that cannot be
prosecuted de oficio, any competent person may file a complaint for
preliminary investigation.

Criminal actions must be commenced in the name of the People of the

Philippines. But the defect is merely of form and curable at any stage of the
trial.
27

As a general rule, a criminal action is commenced by a complaint or

information, or both of which are filed in court.
If a complaint is filed directly in court, the same must be filed by the
offended party and in case of an information, the same may be filed by the
fiscal. However, a "complaint" filed with the fiscal prior to judicial action may
be filed by any person.
e. Private persons may denounce a violation of banking laws.
A complaint with the fiscal prior to a judicial action may be filed by any
person.
f.

A criminal action cannot be instituted against a juridical person.

g.

To subscribe and swear to criminal complaint is not ministerial.

But the absence of an oath does not invalidate the complaint.
Unless the complaint charged is a private offense.

h.

The right to file complaint is personal and abated upon death.

MAY INJUNCTION ISSUE TO RESTRAIN CRIMINAL PROSECUTION

The general rule is that criminal prosecution may not be restrained or
stayed by injunction, preliminary or final.
Public interest requires that criminal acts be immediately investigated and
prosecuted for the protection of society.
There are, however, exceptions, among which are:
a.

To afford adequate protection to the constitutional rights of the accused;

b.

When necessary for the orderly administration of justice or to avoid

oppression or multiplicity of actions;

c.

When there is a prejudicial question;

d.

When the acts of the officer are without or in excess of authority;

e.

Where the prosecution is under an invalid law, ordinance or regulation;

f.

When double jeopardy is clearly apparent;

g.

Where the court has no jurisdiction over the offense;

28

h.

Where it is a case of persecution rather than prosecution;

i.

Where the charges are manifestly false and motivated by the lust for
vengeance;

j.

When there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied; and

k.

Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners.

SEC. 4.
Information defined

amendment to Sec. 5, Rule L10 of the Revised Rules of Criminal Procedure, the Court
Resolved to APPROVE the amendment to Sec. 5, Rule 110 so as to read as follows:
"Section 5. Who must prosecute criminal actions. All criminal actions either
commenced by complaint or by information shall be prosecuted under the direction and
control of a public prosecutor.

Distinguish Information from Complaint

As distinguished from information, a complaint is:

a.
b.
c.

In case of heavy work schedule of the public prosecutor or in the event of lack of
public prosecutors, the private prosecutor may be authorized in writing by the Chief of the
Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the
approval of the court.

Executed by a private party, etc.;

Supported by oath of the complainant; and
Need not necessarily be filed with the court.

An information not properly signed

acquiescence or even by express consent.

cannot

be

cured

by

Once so authorized to prosecute the criminal action, the private prosecutor shall
continue to prosecute the case up to the end of the trial even in the absence of a public
prosecutor, unless the authority is revoked or otherwise withdrawn.

silence,

It must be filed with the court, otherwise it is not an information.

This amendment to Rule 110 shall take effect on the first day of May 2002 following
its publication in two newspapers of general circulation on or before 30 April, 2002.

SEC. 5.
Who must prosecute criminal actions

The amendment inadvertently failed to reproduce the statement that:

Under the 1985 amendments, the following sentences were added to the first paragraph of
Sec. 4 of the old Rule 110, to wit:

However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the
prosecutor assigned thereto or to the case is not available, the offended party, any peace
officer, or public officer charged with the enforcement of the law violated may prosecute
the case.

"However, in the Municipal Court or Municipal Trial Courts when there is no fiscal
available, the offended party, any peace officer or public officer charged with the
enforcement of the law violated may prosecute the case.

This authority shall cease upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court.
This does not, however, mean that the persons mentioned therein may no longer
prosecute the case under the conditions mentioned in the old rule.

This authority ceases upon actual intervention of the fiscal or upon elevation of the
case to the Regional Trial Court. This is based on the Resolution of the Supreme Court in
People v. Beriales."

The amendment was merely intended to regulate the appearance of the private
prosecutor and stress the direction and control of the public prosecutor in the prosecution
of criminal cases.

In the third paragraph of Section 4 of the old Rule 110, the fol-owing was
added:

EFFECT OF LACK OF INTERVENTION BY FISCAL IN TRIAL OF A CRIMINAL

CASE

"In case the offended party dies or becomes incapacitated before she could file the
complaint and has no known parents, grandparents or guardian, the State shall initiate the
criminal action in her behalf. This is based on the doctrine of parens patriae."

Before the 1985 amendment, the Supreme Court, in Garcia v. Domingo,

citing Cariaga v. Justo, held that the absence of the Assistant Fiscal is not a
jurisdictional defect but the court should have cited the public prosecutor to
intervene.

Rape is now a crime against person and consequently can be prosecuted

even without a complaint filed by the offended party.
[A.M. No. 02-2-07-SC. April 10, 2002]

The rule was modified in People v. Beriales where it was held that although
the Fiscal turns over the active conduct of the trial to the private prosecutor, he
should be present during the proceedings

RE: PROPOSED AMENDMENTS TO SECTION 5, RULE 110 OF THE REVISED

RULES OF CRIMINAL PROCEDURE

Thus, in the case of People v. Munar, the Court upheld the right of the
private prosecutor therein to conduct the examination of the witnesses because

Acting on the Memorandum dated 2 February 2002 of Court administrator Presbitero

J. Velasco, Jr. submitting for this Court's consideration and approval the proposed

29

the government prosecutors were present at the hearing; hence, the prosecution
of the case remained under their supervision and control.

The Court noted in a subsequent case that the public prosecutor may turn
over the actual prosecution of the criminal case, in the exercise of his discretion,
but he may, at any time, take over the actual conduct of the trial.

In the present case, although the private prosecutor had previously been
authorized by the special counsel Rosario R. Polines to present the evidence for
the prosecution, nevertheless, in view of the absence of the City Fiscal at the
hearing on December 13, 1974, it cannot be said that the prosecution of the
case was under the control of the City Fiscal.

However, it is necessary that the public prosecutor be present at the trial

until the final termination of the case; otherwise, if he is absent, it cannot be
gainsaid that the trial is under his supervision and control.

It follows that the evidence presented by the private prosecutor at said

hearing could not be considered as evidence for the plaintiff, the People of the
Philippines.

The absence, however, of a prosecutor cannot be raised by an accused to

invalidate the testimony of a state witness if he cannot prove personal prejudice.
Necessity of Service to Government Counsel

There was, therefore, no evidence at all to speak of which could have been
the basis of the decision of the trial court.

Failure to serve pleadings and orders upon government counsel renders the
court orders issued uponsuch petitions or motions of an accused as void.
Notice, however, given to the fiscal is notice to the private prosecutor.
The authority, however, of the provincial prosecutor to appeal for the
People of the Philippines is confined only to the proceedings before the trial
court.

Moreover, as aptly observed by the Solicitor General, "to permit such

prosecution of a criminal case by the private prosecutor with the fiscal in
absentia can set an obnoxious precedent that can be taken advantage of by
some indolent members of the prosecuting arm of the government as well as
those who are oblivious of their bounden duty to see to it not only that the guilty
should be convicted, but that the innocent should be acquitted a duty that
can only be effectively and sincerely performed if they actively participated in
the conduct of the case, especially in the examination of the witnesses and the
presentation of documentary evidence for both parties.

In appeals before the Court of Appeals or to the Supreme Court either by

petition for review or certiorari, the Solicitor General is the sole representative of
the People.
Service thru the Provincial Prosecutor is inefficacious and shall be sufficient
ground for dismissal on the petition as provided in section 3, Rule 46.

The decision appealed from was set aside and the case remanded to the
trial court for another arraignment and trial.

Fiscal's Discretion in Prosecution

The same principle was not, however, observed in People v. Malinao, where
the Supreme Court did not consider the absence of the fiscal prejudicial to the
accused "for only Dr. Nicanor L. Tansingco was presented to testify on his
autopsy report on the deceased Manang.

Prior to the filing of a case in court:

Since no objection was interposed by appellant's counsel, either to Dr.

Tansingco's competency or his post mortem findings, the doctor's testimony was
dispensed with.
The defense likewise waived the fiscal's presence on that date."
In Bravo v. Court of Appeals The proceedings was held to be valid even
without the physical presence of Fiscal as distinguished from Beriales case,
where no Fiscal appeared to prosecute.

a.

A prosecuting attorney cannot be compelled to file a particular criminal

information.

b.

The Court cannot interfere with the Fiscal's discretion and control of criminal
prosecution.

c.

The Court cannot compel the fiscal to prosecute or file information within a
certain period of time.

It is the rule that a fiscal by the nature of his office is under no compulsion
to file a particular criminal information where he is not convinced that he has
evidence to support the allegations thereof.

Here, the Fiscal appeared but left the prosecution to the private prosecutor
under his supervision and control.

Although this power and prerogative of the Fiscal to determine whether or

30

not the evidence at hand is sufficient to form a reasonable belief that a person
committed an offense, is not absolute and subject to judicial review, it would be
embarrassing for the prosecuting attorney to be compelled to prosecute a case
when he is in no position to do so, because in his opinion, he does not have the
necessary evidence to secure a conviction, or he is not convinced of the merits
of the case.

Moreover, before resorting to this relief, the party seeking the inclusion of
another person as a co-accused in the same case must first avail itself of other
adequate remedies such as the filing of a motion for such inclusion.
A case dismissed before arraignment maybe refiled.

The better procedure would be to appeal the Fiscal's decision to the

Ministry of Justice and/or ask for a special prosecutor.

FULL CONTROL BY THE COURT ONCE INFORMATION FILED IN COURT

However, in cases where the information had already been filed in court,
the latter acquires jurisdiction over them.

The failure of the Fiscal to include the other public officials who appear to
be responsible for the offense charged as co-accused in the information does not
vitiate the validity of the information since the matter of prosecuting witnesses
for the People is a prerogative of bhe prosecuting fiscal.

Otherwise stated, the jurisdiction of the court become vested upon the
filing of the information and, once acquired, its jurisdiction continues until the
termination of the case.

The manner by which the prosecution of a case is handled is within the

sound discretion of the prosecutor and the non-inclusion if other guilty persons is
irrelevant to the case against the accused.

Where the information had already been filed in court, it should therefore
dispose of them, one way or the other, resolving all motions brought before it
including motions to dismiss, filed by the Fiscal, or deciding the cases on the
merit.

The prosecutor cannot be compelled to include in the information, a person

against whom he believes no sufficient evidence of guilt exists.

The prosecuting fiscal has no more control over said cases, the same
having been transferred to the court.

While the prosecuting officer is required by law to charge all those who, in
his opinion, appear to be guilty, he nevertheless cannot be compelled to include
in the information a person against whom he believes no sufficient evidence of
guilt exists.

The situation is akin to the pronouncement made in Lansang u. Garcia, that

whenever a formal complaint is presented in court against an individual, the
court steps in and takes control thereof until the same is finally disposed of.

The appreciation of the evidence involves the use of discretion on the part
of the prosecutor.

However, the matter of instituting an information should be distinguished

from a motion by the fiscal for the dismissal of a case already filed in court.

The decision of the prosecutor may be reversed or modified by the

Secretary of Justice or in special cases by the President of the Philippines.

The judge may properly deny the motion where, judging from the record of
the preliminary investigation, there appears to be sufficient evidence to sustain
the prosecution.

But even the Supreme Court cannot order the prosecution of a person
against whom the prosecutor does not find sufficient evidence to support at
least aprima facie case.

This is, as it should be, because the case is already in court and, therefore,
within its discretion and control.

The courts try and/or convict the accused but as a rule have no part in the
initial decision to prosecute him.

In the landmark case ofCrespo u. Mogul, the Supreme Court, sifter a review
of past precedents held:

The possible exception is where there is an unmistakable showing of a

grave abuse of discretion that will justify judicial intrusion into the precincts of
the executive.

"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.

But in such a case, the proper remedy to call for such exception is a
petition for mandamus, not certiorari or prohibition.

Although the fiscal retains the direction and control of the prosecution of criminal
cases even while the case is already in Court, he cannot impose his opinion on the trial

31

court.

The Court found the Fiscal and Judges concerned to have gravely abused
their discretion in not deferring the arraignment pending disposition of the
appeal to the Secretary of Justice.

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.

The Court should have suspended the arraignment of this information for
homicide and await resolution on the petition for review to DOJ on the ground
that the crime is for murder.

A motion to dismiss the case filed by the Fiscal should be addressed to the Court
who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the accused or
that the motion was filed after a reinvestigation or upon instructions of the Secretary of
Justice who reviewed the records of the investigation.

Otherwise, the arraignment may be set aside, and information amended if

DOJ finds that the proper information should be murder.

Thus, it is now settled that once a complaint or information is filed in court any
disposition of the case as to its dismissal or the conviction or the acquittal of the accused
rests in the sound discretion of the court.

MOTION FOR REINVESTIGATION TO BE ADDRESSED TO COURT

In Velasquez v. Tuquero, it was held that a motion for reinvestigation
should, after the court had acquired jurisdiction over the case, be addressed to
the trial judge and to him alone.

A motion to dismiss the case filed by the fiscal should be addressed to the court,
who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the accused or
that the motion was filed after a reinvestigation or upon instruction of the Secretary of
Justice who reviewed the records of the investigation."

Neither the Secretary of Justice, the State Prosecutor, nor the fiscal may interfere with the judge's disposition of the case, much less impose upon the court
their opinion regarding the guilt or innocence of the accused, for the Court is the
sole judge of that.

THE PRINCIPLE WAS FURTHER STRESSED IN DIMATULAC V. VILLON

Thus, should the fiscal find it proper to conduct a reinvestigation of the

case, the permission of the court must be secured.

In this case, the accused were charged with murder before the Municipal
Court which found a probable cause for murder and issued warrants for the
arrest of the accused without bond, after which the records were forwarded to
the Provincial Fiscal.

After such reinvestigation, the finding and recommendations of the fiscal

should be submitted to the court for appropriate action.

Without the accused having been arrested, the Fiscal conducted a

reinvestigation and received the evidence of the accused, found the case to be
homicide.

The Supreme Court clarified that while the fiscal has the quasi-judicial
discretion to determine whether or not a criminal case should be filed in court,
once the case had already been brought to the Court whatever disposition the
fiscal may feel should be proper in the case thereafter should be addressed for
the consideration of the court.

The offended party appealed to the Secretary of Justice.

In the meantime, despite the appeal, the prosecutor filed the information
for homicide, and despite the objections of the offended party on the ground
that they have appealed the resolution of the Fiscal to the Secretary of Justice,
on the ground that the crime committed was murder, the RTC refused to defer
the arraignment, and allowed the accused to post bail in the sum of P20,000
each.

The only qualification is that the action of the court must not impair the
substantial rights of the accused or the right of the people to due process.
The Court has the final say on any subsequent disposition or action, since
the case is brought before it which will not be disturbed by the appellate court
unless it is shown that the trial court acted without jurisdiction or in excess of its
jurisdiction or otherwise committed a grave abuse of discretion amounting to
such lack or excess of jurisdiction.

The accused were arraigned and entered a plea of not guilty.

The Secretary of Justice found the case to be murder, but withdrew its
recommendation to amend the information to murder upon learning the accused
have already been arraigned.

COMPLAINT CANNOT BE WITHDRAWN BY FISCAL WITHOUT COURT'S

CONSENT
32

Thus, where the judge granted the motion for reinvestigation and directed
the Office of the Provincial Prosecutor to conduct the reinvestigation, the former
was deemed to have deferred to the authority of the prosecution arm of the
Government to consider the so-called new relevant and material evidence and
determine whether the information it had filed should stand.

The complaint cannot be withdrawn by the Fiscal without the court's

consent.
The provincial fiscals are not clothed with power, without the consent of
the court, to dismiss or nolle prosequi criminal actions actually instituted and
pending further proceedings.

Having done so, it behooved the judge to wait for a final resolution of the
incident.

The power to dismiss is vested solely in the court, i.e., the presiding judge.
See however, Galvez v. Court of Appeals, upholding the right of the
prosecution to withdraw the information for homicide, the evident purpose was
to refile a case of murder against the same accused before arraignment even
without notice and hearing.

VALID BASIS OF JUDGE'S FINAL ACTION WHERE FISCAL STANDS ON

INFORMATION

Fiscal Entitled to be Heard on Motion to Dismiss

The findings and conclusion of the Provincial Prosecutor, being the final
disposition on the reinvestigation, should be the sole and only valid basis of the
judge's final action (not that of the Assistant Provincial Prosecutor).

However, while the trial court is the sole judge on whether a criminal case
should be dismissed (after the complaint or information has been filed in court)
still, any move on the part of the complainant or offended party to dismiss the
criminal case, even if without objection of the accused should first be referred to
the prosecuting fiscal for his own view on the matter.

Where the Provincial Prosecutor to which the judge had deferred the matter
for reinvestigation, had finally resolved to stand on the information and to
present evidence to prove the guilt of the accused for the crime charged, the
judge did not have the option to dismiss the case on the basis of the
disapproved resolution of the Assistant Provincial Prosecutor.

He is, after all, in control of the prosecution of the case and he may have
his own reasons why the case should not be dismissed.

The only option of the judge was to proceed with the arraignment of the
accused and, thereafter, conduct a pre-trial and trial on the merits, should he
enter a plea of not guilty.
It does not, however, necessarily follow that the court should merely adopt
the recommendation of the Prosecutor.

It is only after hearing the prosecuting fiscal's view that the Court should
exercise its exclusive authority to continue or dismiss the case.
The Parameters of the Court's Control

In Montesa, the stand of the prosecution is to maintain the information, in

which case there is nothing more for the court to do but to proceed with the
case.

The Supreme Court, clarified in Marcelo v. Court of Appeals, that there is

nothing in Crespo v. Mogul, which bars the DOJ from taking cognizance of an
appeal, by way of petition for review, by an accused in a criminal case from an
unfavorable ruling of the investigating prosecutor.

The situation is different if the motion of the fiscal is for the dismissal or
withdrawal of the information.

It merely advised the DOJ to, "as far as practicable, refrain from
entertaining a petition for review or appeal from the action of the fiscal, when
the complaint or information has already been filed in court."

ULTIMATE TEST OF TRIAL COURT'S INDEPENDENCE IS WHERE FISCAL

FILES A MOTION TO DISMISS
The Supreme Court stressed that the real and ultimate test of the
independence and integrity of the trial court is not the filing of the motions to
suspend proceedings and defer arraignment at that stage of the proceedings but
the filing of a motion to dismiss or to withdraw the information on the basis of a
resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor.

Moreover, where the DOJ had already given due course to the petitioner's
petition for review, it was premature for respondent judge to deny the motions
to suspend proceedings and to defer arraignment on the ground that "since the
case is already pending for trial, to follow whatever opinion the Secretary of
Justice may have on the matter would undermine the independence and
integrity of this court.

Before that time, the pronouncement in Crespo u. Mogul, that "once a

33

complaint or information is filed in Court, any disposition of the case as its

dismissal or the conviction of the accused or acquittal of the accused rests in the
sound discretion of the court," did not yet become relevant or applicable.

refuse to prosecute the same.

He is obliged by law to proceed and prosecute the criminal action.

However, once a motion to dismiss or withdraw the information is filed, the

trial judge may grant or deny it, not out of subservience to the Secretary of
Justice, but in faithful exercise of judicial prerogative.
The trial judge must himself be convinced that there was indeed no
sufficient evidence against the accused, and this conclusion can be arrived at
only after an assessment of the evidence in the possession of the prosecution.

He cannot impose his opinion on the trial court.

At least what he can do is to continue appearing for the prosecution and
then turn over the presentation of evidence to another fiscal or a private
prosecutor subject to his direction and control.
Where there is no other prosecutor available, he should proceed to
discharge his duty and present the evidence to the best of his ability and let the
court decide the merits of the case on the basis of the evidence adduced by
both parties.

What is imperatively required is the trial judge's own assessment of such

evidence, it not being sufficient for the valid and proper exercise of judicial
discretion merely to accept or reject the prosecution's word for its supposed
insufficiency or to simply rely on Crespo v. Mogul.

The supervision and control of the prosecutor extends to the civil liability
instituted with the criminal action if it was not filed separately, reserved or there
is no private prosecutor who intervened.

In the absence of a finding of grave abuse of discretion, the court's bare

denial of a motion to withdraw information pursuant tc the Secretary's resolution
is void.

DEVELOPMENTS FROM CRESPO TO DIMATULAC:

a.

FISCAL MAY BE COMPELLED TO PROSECUTE CASES ALREADY FILED

Notwithstanding his personal convictions or opinions, the fiscal must

proceed with his duty of presenting evidence to the court to enable the court to
arrive at its own independent judgment as to the culpability of the accused.

Distinction between control of prosecution and control of court

I.

Control by Prosecution
1.
2.
3.
4.

The fiscal should not shirk from his responsibility much less leave the
prosecution of the case at the hands of a private prosecutor.
At all times, the criminal action shall be prosecuted under his direction and
control.
Otherwise, the entire proceedings will be null and void.

II.

In the trial of criminal cases, it is the duty of the public prosecutor to

appear for the government "since an offense is an outrage to the sovereignty of
the State."
This is so because "the prosecuting officer is the representative not of an
ordinary party to a controversy but of a sovereignty where the obligation to
govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in criminal prosecution is not that it shall win a case, but that
justice shall be done.

What case to file;

Whom to prosecute;
Manner of prosecution; and
Right of Prosecution to Withdraw information before arraignment
even without notice and hearing. There must be leave of court after
prior notice and hearing.

Control by Court Once Case is Filed

1.
2.
3.
4.
5.

Suspension of Arraignment;
Reinvestigation;
Prosecution by Fiscal;
Dismissal; and
Downgrading offense or dropping of accused even before plea.

III. Limitations on Control by Court

As such, he is in a peculiar and very definite sense, the servant of the law,
the two-fold aim of which is that guilt shall not escape or innocence suffers.
Accordingly, if the fiscal is not at all convinced that a prima facie case
exists, he simply cannot move for the dismissal of the case and, when denied,
34

1.

Prosecution entitled to notice of hearing;

2.

Court must await result of petition for review;

3.

Prosecution's stand to maintain prosecution should be respected by

court;
4.
5.

Every violation of penal laws results in the disturbance of public order and
safety which the State is committed to uphold and protect.

Ultimate test of court's independence is where fiscal files motion to

dismiss or to withdraw information;

If the law imposes the condition that private crimes like adultery shall not
be prosecuted except upon complaint filed by the offended party, it is, "out of
consideration for the aggrieved party who might prefer to suffer the outrage in
silence rather than go through the scandal of a public trial."

Court has authority to review (power of Judicial Review)

Secretary's recommendation and reject it if there is grave
abuse of discretion.

Once a complaint is filed, the will of the offended party is ascertained and
the action proceeds just as in any other crime.

*See, however, Sec. ll(c), Rule 116, Suspension of arraignment

does not exceed sixty (60) days.

This is shown by the fact that after filing a complaint, any pardon given by
the complainant to the offender would be unavailing.

The Resolution of the Secretary of Justice may be appealed to

the Office of the President in offenses punishable by death or
reclusion perpetua.
6.

To reject or grant motion to dismiss court must make own

independent assessment of evidence.

7.

Judgment is void if there is no independent assessment and finding

of grave abuse of discretion.

It is true, the institution of the action in so-called private crimes is at the

option of the aggrieved party.
But it is equally true that once the choice is made manifest, the law will be
applied in full force beyond the control of, and in spite of the complainant, his
death notwithstanding.
Purpose of Rule

CRIMES PROSECUTED UPON COMPLAINT OF OFFENDED PARTY

The rule on crimes that must be prosecuted upon complaint filed by the
offended party may be classified into three categories:

The complaint required (in Article 344 of the Revised Penal Code) was not
enacted for the specific purpose of benefitting the accused, but is a condition
precedent to the exercise by the proper authorities of the power to prosecute
the guilty parties.

a.
b.
c.

Such condition has been imposed out of consideration for the offended
women and her family who might prefer to suffer the outrage in silence rather
than go through with the scandal of a public trial.

In crimes of adultery and concubinage;

In offenses of seduction, abduction, or acts of lascivious-ness;
Criminal actions for defamation which consist in the imputation of an offense
mentioned above.

Thus, while the complaint filed by a mental retardate may have been
technically defective in the sense that complainant was incompetent, this defect
has been cured when complainant's brother Pernando Alcala took the witness
stand for the prosecution.

Rape was excluded as a private crime in view of R.A. No. 8353, the AntiRape Law of 1997 which took effect on October 22, 1997, reclassifying rape as a
crime against person and is now a "public crime."

The brother's testimony shows that consent and willingness of the family of
the complainant, who can not give her consent obviously, to have the private
offense committed against the latter publicly tried.

Concept of Private Crimes

The term "private crimes" in reference to felonies which cannot be
prosecuted except upon complaint filed by the aggrieved party, is misleading.

Substantially, this is what is required by the rules.

Far from what it implies, it is not only the aggrieved party who is offended
in such crimes but also the State.

Evidently, by undergoing trial, the family of complainant chose to

denounce the injustice committed against the latter in public and thus agreed to
bear the personal effects of said exposure.
35

SPOUSE, AND NOBODY ELSE

Undoubtedly, therefore, the trial court had jurisdiction to try the case.
Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of adultery
and concubinage by the parents, grandparents or guardian of the offended
party.

Compliance with Rule Is Jurisdictional

While the complaint required in said Art. 344 is merely a condition
precedent to the exercise by the proper authorities of the power to prosecute
the guilty parties, and such condition has been imposed out of consideration for
the offended woman and her family who might prefer to suffer the outrage in
silence rather than go through with the scandal of a public trial.
Compliance with Rule 110, Section 5, is Jurisdictional and not merely a
formal requirement.

The so-called exclusive and successive rule in the prosecution of the first
four offenses above mentioned do not apply to adultery and concubinage.
It is significant that while the State, as parens patriae, was added and
vested by the 1985 Rules on Criminal Procedure with the power to initiate the
criminal action for a deceased or incapacitated victim in the aforesaid offenses
of seduction, abduction, [rape] and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes
of adultery and concubinage.

Under Article 344 of the Revised Penal Code, the crime of adultery, as well
as four other crimes against chastity, cannot be prosecuted except upon a sworn
written complaint filed by the offended spouse.
It has since long been established, with unwavering consistency, that
compliance with this rule is a Jurisdictional, and not merely a formal
requirement.
While in point of strict law, the jurisdiction of the court over the offense is
vested in it by the Judiciary Law, the requirement for a sworn written complaint
is just as Jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding and without which the Court cannot exercise its jurisdiction to try the case.

In other words, only the offended spouse, and no other, is authorized by

law to initiate the action therefor.
OFFENDED PARTY IN ADULTERY MUST HAVE THE STATUS, CAPACITY AND
LEGAL REPRESENTATION AT THE TIME OF FILING OF ACTION FOR
ADULTERY
Where the complainant had already been divorced, he can no longer file
the complaint. Said the Supreme Court:

MEANING OF TERM "JURISDICTIONAL"

Corollary to such exclusive grant of power to the offended spouse to institute the
action, it necessarily follows that such initiator must have the status, capacity or
legal representation to do so at the time of the filing of the criminal action.

It was explained in People v. Tanada (supra), that this provision does not
determine, however, the jurisdiction of our courts over the offenses therein
enumerated.

This is a familiar and express rule in civil actions; in fact, lack of legal capacity to
sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition.

It could not affect said jurisdiction, because the same is governed by the
Judiciary Act of 1948, not by the Revised Penal Code, which deals primarily with
the definition of crimes and the factors pertinent to the punishment of the
culprit.

The absence of an equivalent explicit rule in the prosecution of criminal cases does
not mean that the same requirement and rationale would not apply.

When it is said that the requirement in Article 344 that there should be a
complaint of the offended party or his relative is Jurisdictional, what is meant is
that it is the complaint that starts the prosecutory proceeding.

Understandably, it may not have been found necessary since criminal actions are
generally and fundamentally commenced by the State, through the People of the
Philippines, the offended party, being merely the complaining witness therein.

It is not the complaint which confers jurisdiction in the court to try the case.

However, in the so-called "private crimes," or those which cannot be prosecuted de

oficio, and the present prosecution for adultery is of such genre, the offended spouse
assumes a more predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.

The Court's jurisdiction is vested in it by the Judiciary Law.

IN PROSECUTIONS FOR ADULTERY AND CONCUBINAGE, THE PERSON
WHO CAN LEGALLY FILE THE COMPLAINT SHOULD BE THE OFFENDED

In these cases, therefore, it is indispensable that the status and capacity of the

36

Bravo did not subscribe to the complaint, the Supreme Court held that the trial
court had no jurisdiction over the case.

complainant to commence the action be definitely established and, as already

demonstrated, such status or capacity must indubitably exist at the time he initiates the
action.

It ruled that since the accused imputed to Fausta Bravo the commission of
adultery, a crime which cannot be prosecuted de officio, the Information filed by
the Fiscal cannot confer jurisdiction upon the court of origin.

It would be absurd if his capacity to bring the action would be determined by his
status before or subsequent to the commencement thereof, where such capacity or status
existed prior to but ceased before, or was acquired subsequent to but did not exist at the
time of, the institution of the case. We would thereby have the anomalous spectacle of a
party bringing suit at the very time when he is without the legal capacity to do

If the offended party is of age, the right to file the complaint is exclusive
and successive. None of these persons has authority to proceed if there is any
other person previously mentioned therein with legal capacity to appear and
institute an action.
Where, however, the victim who was also of age is incapacitated by reason
of insanity or physical incapacity, the complaint filed by the father is valid.

It must be noted, however, that this error could be corrected without

sustaining the motion to quash and dismissing the case. Pursuant to Section 1 of
paragraph (a) of P.D. No. 77, under which the Assistant City Fiscal conducted the
preliminary investigation, the statement of the complainant was sworn to before
the aforesaid Investigating Fiscal. Assuming that the recitals in said sworn state ment contain all those required of a complaint under the rules, a copy of said
verified statement of the complainant under the rules should be filed with
respondent court in order to comply with the requirements of Article 360 of the
Revised Penal Code; otherwise, the respondent Fiscal should file with said court,
a verified complaint of the offended party.

OVERRIDING CONSIDERATION IN DETERMINATION OF COMPLIANCE WITH

RULE

COMPLAINT FILED BY OFFENDED PARTY IN INFERIOR COURT

SUFFICIENT; OFFENDED PARTY NEED NOT SUBSCRIBE INFORMATION

The overriding consideration in determining the issue of whether or not the

condition prescribed in Article 344 of the Revised Penal Code has been complied
with is the interest of the aggrieved party to seek judicial redress for the affront
committed.

In this case, the complaint for abduction with rape 'against Bulaong was filed in
the city court by the offended girl and her father. That complaint was sworn to
before the city judge. It was the basis of the preliminary examination. The judge
examined the witnesses under oath. The examination was reduced to writing in
the form of searching questions and answers. On the basis of that examination,
a warrant of arrest was issued.

Exclusive Right of Offended Party When of Age

DEATH OF COMPLAINANT DURING PENDENCY OF CASE DOES NOT

EXTINGUISH CRIMINAL LIABILITY

In his appeal, Bulaong contends through his counsel de officio that the lower court
did not acquire jurisdiction over the case because the information filed by the city fiscal is
fatally defective for not containing the verification required in Form 24 of the Appendix to
the Rules of Court.

The death of the complainant during the pendency of the case is not a
ground for extinguishment of criminal liability whether total or partial.

The contention has no merit.

DEATH OF COMPLAINANT BEFORE FILING OF CASE IN COURT

The forms prescribed in the Rules of Court "serve as mere illustrations."

The fact that before a criminal information for adultery could be filed, the
offended party who had already filed a sworn complaint with the fiscal died, is
not sufficient justification for dismissal of the information, the desire of the
offended party to bring his wife and the alleged paramour to justice being too
evident.

Jurisdiction over the crime charged in this case is conferred by law, not by the
complaint or information which is merely the means by which jurisdiction is invoked or
which gives the court the occasion for exercising its jurisdiction.

INITIATION OF
COMPLIANCE

FILING OF VERIFIED STATEMENT BEFORE COURT SUFFICIENT

COMPLAINT

IN

FISCAL'S

OFFICE

IS

SUFFICIENT

A "Salaysay" or sworn statement of the offended party, which prompted

the Fiscal to con-duct a preliminary investigation and then to file an information
in court, is not the complaint contemplated/required by Article 344 of the
Revised Penal Code.

In a case where the Fiscal filed an Information charging the accused with
'telling some people in the neighborhood that said Fausta Bravo (a married
woman) was a paramour of one Sangalang, a man not her husband,' and Fausta
37

The Rule was modified in Valdepenas u. People, which held that the
complaint filed by the offended woman and her mother before the Justice of the
Peace Court and forwarded to the CFI of Cagayan, in which the corresponding
information for forcible abduction with rape was filed and was considered as
sufficient compliance with the law.

EFFECT OF VARIANCE BETWEEN COMPLAINT AND INFORMATION AND

THE EVIDENCE
A distinction should be made where there is a variance in the allegations in
the complaint of the manner the crime was committed and the allegations in the
information; and a variance between the allegations in the information and the
evidence adduced by the prosecution.

It is not necessary for the complainant to sign and verify the information
filed by the Fiscal.
The complaint adopted by the Fiscal and attached to and made part of the
corresponding information filed after investigation is sufficient.
In People v. Sunpongco, the failure of the prosecution to formally offer in
evidence the sworn complaint of the offended party or the failure to adhere to
the rules is not fatal and does not oust the court of its jurisdiction to hear and
decide the case.

a.

Where the complaint filed was for forcible abduction, while the information
filed by the Fiscal was for rape inasmuch as the crime if rape is different
from the crime of forcible abduction alleged in the complaint, said complaint
could not serve as a basis for the court to acquire jurisdiction over the crime
actually committed.

b.

Where, however, the complaint was for rape, a change in the manner of
committing the crime of rape from that as alleged in the complaint does not
divest the court of its jurisdiction.

If the complaint is forwarded to the Court as part of the record of the

preliminary investigation of the case, the court can take judicial notice of the
same without the necessity of its formal introduction as evidence of the
prosecution.

The power of jurisdiction of the court is not over the crime of rape
when committed on a minor and demented girl, but over rape, irrespective
of the manner in which the same may have been committed.

Seduction, Abduction, Act of Lasciviousness

The court, therefore, erred in holding that it had no jurisdiction to try
the crime charged in the information simply because it charges the accused
with having committed the crime on a demented girl, instead of through the
use offeree and intimidation.

The right is exclusively and successively reposed in the offended party, her
parents or guardian in the order in which they are named.
This is out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through the scandal of a public trial.

The right and power of the court to try the accused for the crime of
rape attaches upon the filing of the complaint, and a change in the
allegations thereof as the manner of committing the crime should not
operate to divest the court of the jurisdiction it has already acquired.

NO NEED TO FILE INFORMATION; FILING OF COMPLAINT IS SUFFICIENT

In a case involving crimes against chastity, the prosecution may be
conducted by the fiscal on the basis of the complaint filed in the inferior court.
There is no need to file an information.

The right or power to try the case should be distinguished from the
right of the accused to demand an acquittal unless it is shown that he has
committed the offense charged in the information even if he be found guilty
of another offense; in the latter case, however, even if the court has no right
to find the accused guilty because the crime alleged is different from that
proved, it cannot be stated that the court has no jurisdiction over the case.

Hence, the other contention of the accused that the information should
have been signed by the offended girl is wrong.
Article 344 of the Revised Penal Code, reproduced in Section 4, Rule 110 of
the Rules of Court, does not require that the offended girl in a crime against
chastity should sign the information filed by the fiscal.
Since the filing of a complaint for any of the offenses enumerated in Article
344 of the Revised Penal Code, by the person or persons mentioned therein is
jurisdictional, the filing thereof is sufficient to initiate a valid prosecution, and no
information need be Sled any longer by the Fiscal.

c.

38

Where the complaint signed by the complainant charged the accused with
abduction with rape detailed in her sworn statement which form part of the
records of the preliminary investigation, even if the body of the complaint
does not specify the elements of forcible abduction, if the information
sufficiently charged the complex crime forcible abduction with rape, the
court validly acquired jurisdiction.

d.

The error may, however, be corrected without sustaining the motion to

quash and dismiss the case.

Where the information, however, charged the accused of rape by force and
intimidation, he cannot be convicted of rape on the ground that the victim
was raped while she was unconscious or otherwise deprived of reason as it
would violate his right to be informed of the nature and cause of the
accusation against him, except when there is a failure to object thereto
during the trial in which case the accused may be convicted of the rape
proved even if committed in a manner different from that alleged in the
information.

Where the statement of the complaint was sworn to before the

investigating fiscal; and the recitals in the sworn statement contain all those
required of a complaint under the rules, a copy of the verified statement of the
offended party may be filed in court
Thus, where the information was based on the criminal complaint filed with
the fiscal's office which conducted the corresponding preliminary investigation
and the records conformably with the procedure then in force was transmitted to
the trial court, such circumstance does not deprive the court of its jurisdiction.

Other Cases
a.

The father has no preferential right over the mother to file the complaint.

b.

A complaint must be filed by the legal guardian. An oath that he is the

guardian was held as sufficient.

c.

Where the complaint is for attempted rape, the city court has jurisdiction to
try the case for acts of lasciviousness, the crime allegedly committed as per
inquest fiscal's findings, though the complainant did not sign a complaint for
acts of lasciviousness, attempted rape includes acts of lasciviousness.

Imputing prostitution, does not indicate an adulterous act and can be

prosecuted de officio.
Where, however, in addition to allegedly calling the complainant a whore,
the private respondent is also charged in one information with having described
the former as a "paramour of my husband," this is a clear imputation of adultery.
A paramour is "one who loves or is loved illicitly."
One taking the place without legal rights of a husband or wife.

While the Fiscal should have prepared another complaint for acts of
lasciviousness, this is not jurisdictional the complaint started the criminal
action because a private crime can not be prosecuted de officio.
d.

e.

A mistress, also called a lover, accordingly, that imputation is covered by

Rule 110.

Where the accused is charged with rape committed thru force and
intimidation, he cannot be convicted of rape committed under paragraph 2
of Article 335 when the woman is deprived of reason or is otherwise
unconscious.

DEATH OF OFFENDED PARTY IN CASES OF LIBEL OR DEFAMATION

The death of offended party in a criminal case for libel or defamation does
not extinguish criminal liability of accused.

In robbery with rape or rape with homicide, the complaint of offended party
is not essential.

SEC. 6.
Sufficiency of complaint or information

Defamation
Time of the offense under the former rule was changed to DATE of the
offense.

A published letter stating that a woman employee had "illicit relationship

with another who is the former's paramour" imputes adulterous relationship
between the two.

All Elements of Crime Must be Alleged

A prosecution for libel based thereon cannot be made without the sworn
complaint of the offended party.
Since the accused imputed the commission of adultery, a crime which
cannot be prosecuted de officio, the Information filed by the Fiscal cannot confer
jurisdiction upon the Court of origin.

It is fundamental that every element of which the offense is composed

must be alleged in the complaint or information.
What facts and circumstances are necessary to be stated must be
determined by reference to the definitions and the essentials of the specific
crimes.
39

firearms and ammunitions outside of his residence. The contention is without

merit.

The main purpose of requiring the various elements of a crime to be set

out in an information is to enable the accused to suitably prepare his defense.
He is presumed to have no independent knowledge of the facts that constitute
the ofiense.

As the court had stated in People v. Austria, the presentation of evidence

"cannot have the effect of validating a void information, or proving an offense
which does not legally exist.

Matter of Evidence; Need Not be Averred

The information was not merely defective but it does not charge any
offense at all.

However, it is often difficult to say what is a matter of evidence, as

distinguished from facts necessary to be stated in order to render the
information sufficiently certain to identify the offense.

Technically speaking, that information does not exist in contemplation of

law."

As a general rule, matters of evidence, as distinguished from facts

essential to the description of the offense, need not be averred.

In an information for rape (committed before R.A. No. 7659) without

alleging the age or complainant, the accused was convicted of statutory rape
there being no objection to evidence or minority.

For instance, it is not necessary to show on the face of an information for

forgery in what manner a person is to be defrauded, as that is a matter of
evidence at the trial.

The information was not void but merely defective which is curable by
evidence admitted without objection.

Reasonable Certainty is Sufficient

The Substantial Compliance Rule
Moreover, reasonable certainty in the statement of the crime suffices.
It has been held that a complaint is under the Rules one of the two
charging instruments for the offense of which the accused was tried and
convicted here.

All that is required is that the charge be set forth with such particularity as
will reasonably indicate the exact offense which the accused is alleged to have
committed and will enable him intelligently to prepare his defense, and if found
guilty to plead her conviction, in a subsequent prosecution for the same offense.

While the criminal action was instituted by the complaint of the offended
party, the information signed only by the fiscal ushered in the formal trial
process.

Effects of Fatally Defective Information

Conviction or acquittal under a fatally defective information for want of
certain essential allegation is not necessarily void when no objection appears to
have been raised at the trial and the fatal defect could have been supplied by
competent proof.

But both are accusations in writing against the accused and serve the
purpose of enabling him to take the necessary legal steps for his defense.
What is important is that the information states that the accused is being
charged of an offense under R.A. No. 7610 based on the complaint of the
offended party, to which the accused had adequately responded.

It was, however, held in Ilo, et al. v. Court of Appeals, that a substantial

defect in the information cannot be cured by evidence, for that would jeopardize
their right to be informed of, the true nature of the offense they are charged.

Under these conditions, the accused was fully apprised of the accusation
against him.

The Supreme Court applied the case of People u. Austria, holding that an
information which does not charge an offense at all cannot be validated by the
presentation of evidence. Said the Supreme Court: "(t)he petitioner contends
that under the allegation in the information that the accused without authority
of law, did then and there willfully, unlawfully and feloniously have in his
possession and under his custody and control the firearms and ammunitions
enumerated therein," the prosecution may prove that the accused carried the

The purpose and objective of the constitutional mandate are discharged

and satisfied.
The accused may not be said to be taken by surprise by the failure of the
information to state the age of the offended party, when he had received the
initiatory complaint where he was told how old the offended party was.
40

Thus, even if the information did not allege that the victim was a mental
retardate which is an essential element of the crime of statutory rape, or the
element of force and intimidation or the age of the complainant or the
information merely states that petitioner was being charged for the crime of
"violation of R.A. No. 7610" without citing the specific sections alleged to have
been violated the Court treated the informations as merely defective and that
the deficiency was cured either because the complaint supplied the omission or
by the failure of the accused to assail the insufficiency of the allega tions in the
Information and by competent evidence presented during trial, and the accused
cannot successfully invoke the defense that his right to be informed is violated.

Following the stream of our own jurisprudence, it is enough to allege

conspiracy as a mode in the commission of the crime in either of the following
manner:

The Court did not consider the omissions sufficient to invalidate the
information, holding that the character of the crime is not determined by the
caption or preamble of the information nor from the specification of the provision
of law alleged to have been violated, as they may be conclusions of law, but by
the recital of the ultimate facts and circumstances in the complaint or
information.

(1)

by the use of the word "conspire" or its derivatives or synonyms, such as

confederate, connive, collude, etc. or

(2)

by allegations of basic facts constituting the conspiracy in a manner that

a person of common understanding would know what is intended, and with
such precision as would enable the accused to competently enter a plea to a
subsequent indictment based on the same facts
When Charged as a Mode of Committing the Crime

The requirements of the sufficiency of the information are different when

conspiracy is not charged as a crime in itself but only as a mode of committing
the crime as in the case of Plunder consisting of several predicate crimes.

The sufficiency of an information is not negated by an incomplete or

defective designation of the crime in the caption or other parts of the information but by the narration of facts and circumstances which adequately depicts a
crime and sufficiently apprise the accused of the nature and cause of.the
accusation against him.

There is less necessity of reciting its particularities in the information

because conspiracy is not the gravamen of the offense charged.
The conspiracy is significant only because it changes the criminal liability
of all the accused in the conpsiracy and make them responsible as co-principals
regardless of the degree of their participation in the crime.

The information may not refer to specific section/s of R.A. No. 7610 alleged
to have been violated by the petitioner, but it is all to evident that the body of
the information contains an averment of the'acts alleged to have been
performed by petitioner which unmistakably refers to acts punishable under
Section 5 of R.A. No. 7610.

The liability of the conspirators is collective and each participant will be

equally responsible for the acts of the others.
The information must state that the accused have confederated to commit
the crime or that there has been a community of design, a unity of purpose or
an agreement to commit the felony among the accused.

As to which section of R.A. No. 7610 is being violated by petitioner is

inconsequential.

Such an allegation, in the absence of the usual usage of the words

"conspired" or the phrase "acting in conspiracy," must aptly appear in the
information in the form of definitive acts constituting conspiracy.

What is determinative of the offense is the recital of the ultimate facts and
circumstances in the complaint or information.
Sufficiency of Allegations of Conspiracy

In fine, the agreement to commit the crime, the unity of purpose or the
community of design among the accused must be conveyed such as either by
the use of the term "conspire" or its derivatives and synonyms or by allegations
of basic facts constituting the conspiracy.

In our jurisdiction, * * * conspiracy can be alleged in the Information as a

mode of committing a crime or it may be alleged as constitutive of the crime
itself.

Conspiracy must be alleged, not just inferred, in the information on which

basis an accused can aptly enter his plea, a matter that is not to be confused
with or likened to the adequacy of evidence that may be required to prove it.

When conspiracy is alleged as a crime in itself, the sufficiency of the

allegations in the Information charging the offense is governed by Section 6,
Rule 110 of the Revised Rules of Criminal Procedure.
41

In establishing conspiracy when properly alleged, the evidence to support it

need not necessarily be shown by direct proof but may be inferred from shown
acts and conduct of the accused.
An allegation of conspiracy, or one that would impute criminal liability to an
accused for the act of another or others, is indispensable in order to hold such
person, regardless of the nature and extent of his own participation, equally
guilty with the other or others in the commission of the crime.
Where conspiracy exists and can rightly be appreciated, the individual acts
done to perpetrate the felony becomes of secondary importance, the act of one
being imputable to all the others.
Verily, an accused must know from the information whether he faces a
criminal responsibility not only for his acts but also for the acts of his co-accused
as well.
In the absence of conspiracy, so averred and proved an accused can only
be made liable for the acts committed by him alone and this criminal
responsibility is individual and not collective

42

WHEN CONSPIRACY CHARGED AS A CRIME

It is the actual facts recited in the information that determines the
nature of the crime.
The real nature of offense is to be determined not by its designation or
title given by the Fiscal but the facts alleged in the body of the Information.

When conspiracy is charged as a crime, the act of conspiring and all the
elements of said crime must be set forth in the complaint or information.
For example, the crime of "conspiracy to commit treason" is committed
when, in time of war, two or more persons come to an agreement to levy war
against the Government or to adhere to the enemies and to give them aid or
comfort, and decide to commit it.

d.

It is the province of the Court alone to say what the crime is or what it is
named.
Even the justice of the peace, during the preliminary investigation of a
case, is without authority to determine the character of the crime
committed. His declaration upon the point is merely an opinion which in no
wise binds the trial court.

In embodying the essential elements of the crime charged, the information

must set forth the facts and circumstances that have a bearing on the
culpability and liability of the accused so that the accused can properly prepare
for and undertake his defense.
e.
One such fact or circumstance in a complaint against two or more accused
persons is that of conspiracy.
Quite unlike the omission of an ordinary recital of fact which, if not
excepted from or objected to during trial, may be corrected or supplied by
competent proof

Allegations prevail over designation of the offense in the information for

conviction of accused who may therefore be convicted of a crime more
serious than that named in the title or preliminary part if such crime is
covered by the facts alleged in the body of the information and its
commission is established by the evidence.
SEC. 7.
Name of the accused

Need to Designate Statute Violated

a.

It is a constitutional right of any person who stands charged in a criminal

prosecution to be informed of the nature and cause of the accusation
against him.

The word
"ascertained."

"discovered"

under

the

former

rule

was

changed

to

Error in the name or identity should be raised on arraignment.

Pursuant to the above, Section 6, Rule 110 of the Rules of Court,
expressly requires that for a complaint or information to be sufficient, it
must, inter alia, state the designation of the offense by the statute, and the
acts or omissions complained of as constituting the offense.

Purpose of Rule
To enable the court to acquire jurisdiction over his person and to inform
him of the facts.

This is essential to avoid surprise on the accused and to afford him the
opportunity to prepare his defense accordingly.

Where the accused has been sued as John Doe in an information filed in
due form, and after due investigation by the Fiscal, his identity became known,
his true name may be inserted without further need of preliminary investigation
where one had already been properly conducted pursuant to the charter of
Quezon City and the nature of the crime is not changed.

To comply with these fundamental requirements of the Constitution

and the Rules on Criminal Procedure, it is imperative for the specific statute
violated to be designated or mentioned in the charge.
b.

c.

The failure, however, to designate the offense by statute or to mention the

specific provision penalizing the act or an erroneous speficication of the law
violated does not vitiate the information if the facts alleged clearly recites
the facts constituting the crime charged.

Verbal motion to correct spelling is sufficient.

Where the accused Roberto Cultura was indicted in the information as
"Jose" Cultura (his father's name), but it was clearly proven that he was part of
the group that killed the victim and did not raise the question of his identity at
the arraignment and acquiesced to be tried under that name, he is deemed to

The title of information or designation of offense is not controlling.

43

have waived to raise the question of his identity for the first time on appeal.
SEC. 8.
Designation of the offense
SEC. 9.
Cause of the accusation

When committed by any member of the Armed Forces of the Philippines or

the Philippine National Police or any law enforcement agency.

g.

When by reason on the occasion of the rape, the victim has suffered
permanent physical mutilation.

The concurrence of the minority of the victim and her relationship of the
offender is a special qualifying circumstance which should both be alleged and
proved with certainty in order to warrant the imposition of the death penalty.

Amendment
The former rule did not require qualifying and aggravating circumstances
to be alleged in the complaint or information.

In these eight (8) cases, complainant never said she was below 18 years of
age when she was allegedly raped by her father on any of the dates stated in
the complaint.

According to jurisprudence, aggravating circumstances proven by the

evidence, although not alleged in the information, may be taken into account as
such aggravating circumstances.

R.A. No. 7659 (Death Penalty Law) Relationships which includes stepdaughter and minority in incestuous rape are in the nature of qualifying
circumstances, must be specifically alleged and proved to warrant imposition of
death penalty.

Qualifying circumstances not alleged but proven are considered as

aggravating.

Omission cannot be cured by evidence.

Hence, penalty should only be reclusion perpetual

This is no longer true.

HISTORY OF AMENDMENT.

The twin circumstances of minority and relationship under Article 335 of

the Revised Penal Code, as amended by R.A. No. 7659, are in the nature of
qualifying circumstances because they alter the nature of the crime of rape and
increase the penalty.

Allegations to Warrant Death Penalty

Pursuant to Section 11 of the amendatory statute (The Death Penalty Law),
the death penalty may be imposed in rape cases under the last paragraph of
Article 335 of the Revised Penal Code, when the rape is committed with any of
the following attendant circumstances:
a.

f.

As special qualifying circumstances they must be specifically pleaded or

alleged with certainty in the information; otherwise, the death penalty cannot be
imposed.

When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-law spouse of the parent
of the victim.

b.

When the victim is under the custody of the police or military authorities.

c.

When the rape is committed in full view of the husband, parent, any of the
children or other relatives within the third degree of consangguinity.

d.

When the victim is a religious or a child below seven (7) years old.

e.

When the offender knows that he is afflicted with Acquired Immune

Deficiency Syndrome (AIDS) disease.

The allegation that Irma is Nelson's niece is not specific enough to satisfy
the special qualifying circumstance of relationship.
If the offender is merely a relation not a parent, ascendant, stepparent,
guardian, or common law spouse of the mother of the victim the specific
relationship must be alleged in the information, i.e., that he is "a relative by
consanguinity or affinity [as the case may be] within the third civil degree."
The informations in these cases merely allege that Irma is the "niece" of
Nelson.
She could be a niece beyond the third civil degree either of consanguinity
or affinity.

44

Hence, the informations are fatally defective in this respect.

informed of the nature and cause of the accusation against him.

The life and liberty of the accused should not be left to the ability or
inability of his counsel to promptly object against the admissibility of what the
law or rule requires to be specifically alleged.

In People u. Nunez, the Court stressed: Strict application of the rule requiring the
allegation of the qualifying circumstances mentioned in Section 11 of R.A. No. 7659 was
further enunciated in People v. Dimapilis. While the Information there alleged that the
victim was the stepdaughter of the accused, it was not accepted as a proper allegation of
the qualifying circumstance that the accused was the "common law spouse of the parent
of the victim" and the death penalty imposed by the trial court was once again reduced to
reclusion perpetua.

This was explained in U.S. v. Karelsen:

"The object of this written accusations was,

Taking into account the growing number of cases where qualified rape under Section
11 of R.A. No. 7659, although proven during trial, could still not be properly penalized
because of defects in the Information,

First: To furnish the accused with such a description of the charge against him as will
enable him to make his defense; and
Second, to avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause, and

We urge the prosecuting fiscals who are charged with the responsibility of preparing
Informations to state with particularity the attendant circumstances provided for under
Section 11 of R.A. No. 7659.

Third to inform the court of the facts alleged so that it may decide whether they are
sufficient in law to support a conviction if one should be had in order that this requirement
may be satisfied, facts must be stated, not conclusions of law.

More specifically, in qualified rape, both the fact of minority of the victim and the
actual relationship between the parties, as worded in R.A. No. 7659, must be alleged in the
Information.
Otherwise, We shall continue to fail both the law and the victims whom the law have
sought to protect.

Every crime is made up of certain acts and intent these must be set forth in the
complaint with reasonable particularity of time, place, names (plaintiff and defendant) and
circumstances.

Hence, the formulation of the foregoing rules that mandate not only the qualifying
but also the aggravating circumstances to be specified in the information

In short, the complaint must contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged."

The Rule now requires aggravating circumstances must not only be proven but it
must also be alleged, otherwise, it should not be considered.

It is essential therefore, that the accused be informed of the facts that are
imputed to them as "as he is presumed to have no independent knowledge of
the facts that constitute the offense."
It imperative that the Information filed with the trial court be complete to
the end that the accused may suitably prepare his defense.

Retroactive Application of Rule

The rule being remedial and favorable to the accused may be applied
retroactively to pending cases.

Corollary to this, an indictment must fully state the elements of the specific
offense alleged to have been committed as it is the recital of the essentials of a
crime which delineates the nature and cause of accusation against the accused.

Purpose of Rule
The factor that characterizes the charge is the actual recital of facts.

The Court in People u. Mendez, cited the 1935 case of People v. Oso, that
the allegation of the complaint that the accused had carnal intercourse with the
offended woman "against her will" or "without her consent" is insufficient to
warrant a conviction for rape, although the evidence proves the commission of
the crime and reiterated the importance of duly informing the accused of the
accusation against him as a constitutional right that cannot be taken lightly,
more so, if the penalty to be imposed is grave, such as the forfeiture of his life.

The real nature of the criminal charge is determined not from the caption
or preamble of the information nor from the specification of the provision of law
alleged to have been violated they being conclusions of law but by the actual
recital of facts in the complaint or information.
The purpose of the rule is to fully apprise the accused of the true charge
against him.

The essence of the constitutional right of the accused to be informed of the

nature and cause of the accusation against him is that "every element of the
offense must be alleged in the complaint or information" so as to "enable the

The rule broadens the concept and scope of the right of the accused to be
45

accused to suitably prepare his defense. He is presumed to have no independent

knowledge of the facts that constitute the offense."

who is the stepfather of complainant, succeeded in having carnal knowledge of

the latter who was then below eighteen years of age, but the evidence shows
that the accused is not the complainant's stepfather because he and
complainant's mother were not really married but only lived in common-law
relationship or where the charge is that the victim is the daughter of the accused
when the evidence shows that she is a mere stepdaughter or whether the
relationship is by affinity or consanguinity in the third degree the death penalty
cannot be imposed because the relationship alleged in the information is
different from that actually proven

In setting out the elements of a crime in the information or complaint, the

pertinent provisions of the Rules on Criminal Procedure, specifically, Section 9 of
Rule 110, provides the following guideline the cited provision is one of the many
provisions in the Rules of Court that serves to implement the constitutional right
of the accused to be informed of the charges against him.
Relevant to this case is the phrase "a person of common understanding,"
which has its origin in this jurisdiction in the phrase "a person of ordinary
intelligence.""

Where the informations alleged:

"[A]nd taking advantage of his superior strength over the person of his own daughter
who is only thirteen years old.. ."

The test is whether the crime is described in intelligible terms with such
particularity as to apprise the accused, with reasonable certainty, of the offense
charged.

[T]aking advantage of his superior strength over the person of his thirteen (13) year
old (sic) daughter. . ."

The raison d'etre of the rule is to enable the accused to suitably prepare his
defense.

the Court spared the life of the accused, despite the mention of the age of the victim
and the word "daughter" in said informations, on the ground that the quoted informations
failed to duly allege the special qualifying circumstances of the victim's minority and the
relationship between the victim and the accused because as phrased, they unduly lay
stress on the generic aggravating circumstance of "taking advantage of superior strength."

Without allegation of relationship in cases of statutory rape, proof alone of

relationship unless specifically alleged in the information would not warrant
imposition of the death penalty.

The Court further explained that:

Under existing jurisprudence, in the absence of proof of aggravating

circumstance, the penalty should be reclusion perpetua and not death.
Where there are two indivisible penalties if there is no aggravating
circumstance the lesser penalty should be imposed.

"Be it in terms of syntax or composition, the wording of the informations is unable to

sufficiently notify the accused, a person of common understanding or ordinary intelligence,
of the gravity or nature of the crime he had been charged with, especially considering that
the generic aggravating circumstance of taking advantage of superior strength is not even
an element of the attendant circumstances treated under number 1 of the last paragraph
of Article 335.

The court may appreciate as an aggravating circumstance the victim's

minority, which was pleaded in the informations and proved by her birth
certificate.

The afore-quoted clauses in the informations can thus not be read nor understood as
constituting a specific allegation of the special circumstances of relationship of father and
daughter and that the daughter was less than 18 years of age at the time the crime of
rape was committed."

In those cases, when either one of the twin special qualifying

circumstances of relationship and minority is omitted or lacking, that which is
pleaded in the information and proved by the evidence, like the complainant's
minority, may be considered as an aggravating.

Specific Allegation of Relationship and Minority

Even if the information alleged that the victim is the natural daughter of
the accused, where there is a difference in their surname, the mere testimony of
the victim that the accused is his father is not sufficient to establish the
qualifying circumstance of relationship, even if such relationship was not denied
by the accused.

Exact Relationship to be Alleged

For rape to be qualified as heinous, warranting the imposition of the death
penalty, the circumstances of the minority of the victim and her relationship with
the offender must be both alleged in the information for rape.

Granting that the relationship within the third civil degree either of
consanguinity or affinity was duly proved during the trial, still such proof cannot
be appreciated to justify the imposition of the death penalty because he would

Although a husband is subject to punishment by death in case he commits

rape against his wife's daughter, where the information alleged the accused,
46

thereby be denied of his constitutional and statutory right to be informed of the

nature and cause of the accusation against him.

Thus, the use of deadly weapon is a qualifying circumstance or when the

crime is committed by two or more persons, the penalty is reclusion perpetua to
death if the commission of the crime was attended by an aggravating
circumstance.

Accused cannot be charged with committing the crime of rape in its simple
form and then be tried and convicted of rape in its qualified form.
Exact Age of Victim must be Alleged

The use of a deadly weapon was considered as qualifying and not

aggravating for purposes of imposing the death penalty which was, however,
considered as aggravating to award exemplary damages.
In People v. Caniezo the circumstance of deadly weapon was not alleged
but proven and was considered as generic aggravating but did not make any
difference in the imposition of the penalty since under Article 63 where the
penalty involved are two indivisible penalties of reclusion perpetua and there are
no qualifying circumstances, the single indivisible penalty of reclusion perpetua
shall be imposed regardless of the aggravating circumstance.

The allegation in the information that complainant is the "minor daughter"

of accused-appellant is insufficient.
As held in People v. Puertollano, the information must state the exact age
of the victim at the time of the commission of the crime.
To warrant the imposition of the death penalty, the qualifying circumstance
of the rape victim being below seven years of age should be aptly alleged in the
information.

Exemplary damages was, however, awarded.

Otherwise, the death penalty imposed by the trial court should be reduced
to reclusion perpetua as provided for in the second paragraph of Art. 335 of the
Revised Penal Code, as amended.

Thus an aggravating circumstance, whether ordinary or qualifying, should

entitle the offended party to an award of exemplary damages within the context
of Article 2230 of the New Civil Code, even if the information or criminal
complaint has not alleged said circumstances as required by the rule.
In People v. Cachopero, the award of exemplary damages was deleted
since the aggravating circumstances to justify the ward were not alleged and
proved.

COMPARE:
It has, however, been held that where the information state that the
offense was committed with the aggravating circumstances of insult or in
disregard of the respect due the offended party on account of the fact the
accused is the father of the complainant, properly plead the special
circumstance of relationship of father and daughter that would enable a "person
of sufficient understanding" to know what offense is intended to be charged.

THE MODIFYING CIRCUMSTANCES MUST BE ALLEGED NOT ONLY IN

PREAMBLE BUT IN ACCUSATORY PORTION
The fact of filiation and minority must be alleged in the accusatory portion
of the information.

The accused could not have been misled by the wording of the
informations.

The real nature of the criminal charge is determined not from the caption
or the preamble of the information, nor from the specification of the provision of
law alleged to have been violated x x x, but from the actual recital of the facts
as alleged in the body of the information."

A person of ordinary intelligence could not plead with logic that he had no
notice that he is being charged with the repeated rape of his fifteen-year-old
daughter.
Rule on Exemplary Damages

Where relationship is not stated in the "cause of the accusation," or in the

narration of the act or omission constituting the offense, but only in the
preamble or opening statement of the complaint and the complaint upon which
the appellant was arraigned does not state in the accusatory portion the
specifications of the acts constitutive of the offense, that he is charged as the
father of the victim.

In line with the ruling in People v. Catubig, the qualifying circumstances of

minority and relationship, though not specified in the complaint, can serve as
basis for awarding exemplary damages.
Although the rape was committed in 1997, before the Revised Rules on
Criminal Procedure took effect, the court held that the retroactive application of
the rules does not absolve accused from civil liability

Such omission is prejudicial to the right of the accused to be informed of

the nature of the accusations against him.
47

PLEA OF GUILTY TO ALLEGATIONS IN BODY OF INFORMATION

Thus, where the aggravating circumstance of dwelling and abuse of

confidence or obvious ungratefulnnes, nocturnity or nighttime or treachery or
abuse of superior strength not alleged in the information cannot be appreciated.

Thus, the plea of guilty is not on the offense alleged in the preamble but for
the crime alleged in the accusatory portion of the information.

Although the information does not specifically allege treachery as a

qualifying circumstance in the commission of the crime, the allegation in the
information that the victim was four years old at the time of the killing is
sufficient compliance with section 6, Rule 110 of the Revised Rules of Criminal
Procedure, as amended. Killing a child by an adult constitutes treachery even if
the mode of attack by the assailant is not proved by the prosecution because a
child of tender years could not be expected to put up a defense and hence at
the mercy of his or her assailant.

Thus accused did not, in fact, plead guilty to a capital offense designated in
the preamble but only to that part of the complaint that charges only simple
rape under Art. 335, for which the penalty is only reclusion perpetua, and not for
rape under R.A. No. 7659, qualified by the circumstance that the offender is the
father of the victim who is a minor, for which the penalty is death.
He cannot therefore properly invoke Sec. 3, Rule 116, which requires
reception of evidence on a plea to a capital offense.

THE JUDGMENT MUST MAKE AN EXPRESS FINDING OF THE QUALIFYING

CIRCUMSTANCES

APPLICATION TO ALL CRIMES NOT INVOLVING IMPOSITION OF DEATH

PENALTY

The decision of the trial court must contain an express and categorical
finding that the complainant was below 18 years old when the crime of rape was
committed to justify the imposition of the death penalty.

Before the amendment the retroactive effect of non-allegation of

aggravating circumstance even if proved is inapplicable for the crime of robbery,
the same not involving the imposition of the death penalty.

The fact that accused-appellant has not denied the allegation in the
complaints that Mylene was below 18 years of age when any of the crimes was
committed cannot make up for the failure of the prosecution to discharge its
burden.

For said crime, what remains applicable is the old rule that generic
aggravating circumstances if duly proven in the course of the trial could be
taken into account by the trial court in determining the proper imposable
penalty, even if such circumstances is not alleged in the information.

Because of its failure to discharge this burden and the corresponding

failure of the trial court to make a categorical finding as to the minority of the
victim, the qualifying circumstance of minority and relationship cannot be
appreciated in these cases.

The court clarified that with the amendment, the principle is now applicable
in all criminal cases, not only in cases where the aggravating circumstances
would increase the penalty to death.
The court, therefore gave fair warning to prosecutors that henceforth, they
must prepare well-crafted informations that allege the circumstances qualifying
and aggravating the crimes charged, otherwise the same will not be considered
by the court in determining the proper penalty.

It is different with regard to the relationship of the offended party and

accused-appellant, because the latter admitted that complainant is his daughter.
Perforce, the death penalty imposed by the trial court in each of the eight
(8) cases should be reduced to reclusion perpetua as provided in the second
paragraph of Art. 335 of the Revised Penal Code, as amended.

The failure to allege the fact of filiation and minority in the information for
rape is fatal and consequently bars conviction of its qualified form which is
punishable with death.

There must not only be proof of minority but also of the relationship
between the accused and the victim.

Any circumstance that would qualify or aggravate the crime charged must
be specified in the information.

MODIFYING CIRCUMSTANCES NEED NOT ALLEGE WITH SPECIFICITY

WHETHER IT IS QUALIFYING OR AGGRAVATING

Following the established rule that a penal statute, whether substantive or

procedural, shall be given a retroactive effect if favorable to the accused, aggravating circumstances not alleged cannot be appreciated.

It was earlier held that where the information, did not allege with specificity
as qualifying the killing to murder (it merely alleged "with intent to kill, treachery
48

and evident premeditation) although established by the evidence, under the

present Revised Rules of Criminal Procedure, treachery has to be considered a
generic aggravating circumstance only.
This was reiterated in an en bane decision of the Court in People v.
Manlansing, holding that where none of aggravating circumstances were alleged
in the informations with specificity as a qualifying circumstance elevating the
killing to murder, ascused should only be convicted of homicide.

COMPLIANCE RULE
The information must state that the accused have confederated to commit
the crime or that there has been a community of design, a unity of purpose or
an agreement to commit the felony among the accused.
Such an allegation, in the absence of the usual usage of the words
"conspired" or "confederated" or the phrase "acting in conspiracy," must aptly
appear in the information in the form of definitive acts constituting conspiracy.

This is no longer true.

In a per curiam Resolution, the Court in People v. Aquino declared:

In fine, the agreement to commit the crime, the unity of purpose or the
community of design among the accused must be conveyed such as either by
the use of the term "conspire" or its derivatives and synonyms or by allegations
of basic facts constituting the conspiracy.

We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that the
Information allege, specify or enumerate the attendant circumstances mentioned in the
law to qualify the offense.

Conspiracy must be alleged, not just inferred, in the information on which

basis an accused can aptly enter his plea, a matter that is not to be confused
with or likened to the adequacy of evidence that may be required to prove it.

These circumstances need not be preceded by the words 'aggravating/qualifying,'

'qualifying,' or 'qualified by' to be considered as qualifying circumstances.
It is sufficient that these circumstances be specified in the Information to apprise the
accused of the charges against him to enable him to prepare fully for his defense, thus
precluding surprises during the trial.

In establishing conspiracy when properly alleged, the evidence to support it

need not necessarily be shown by direct proof but may be inferred from shown
acts and conduct of the accused.

When the prosecution specifically alleges in the Information the circumstances

mentioned in the law as qualifying the crime, and succeeds in proving them beyond
reasonable doubt, the Court is constrained to impose the higher penalty mandated by law.
This includes the death penalty in proper cases."

Following the stream of our own jurisprudence, it is enough to allege

conspiracy as a mode in the commission of the crime in either of the following
manner:

Unfortunately, this is one of those cases.

(1)

by the use of the word "conspire" or its derivatives or synonyms, such as

confederate, connive, collude, etc. or

(2)

by allegations of basic facts constituting the conspiracy in a manner that

a person of common understanding would know what is intended, and with
such precision as would enable the accused to competently enter a plea to a
subsequent indictment based on the same facts.

The allegation of the twin circumstances of minority and relationship in the

Information, which were proven beyond reasonable doubt during the trial, compels the Court to impose the death penalty.
To guide the bench and the bar, this Resolution clarifies and resolves the
issue of how to allege or specify qualifying or aggravating circumstances in the
Information.

In the absence of conspiracy, so averred and proved an accused can only

be made liable for the acts committed by him alone and this criminal
responsibility is individual and not collective.

The
words
"aggravating/qualifying,"
"qualifying,"
"qualified
by,"
"aggravating," or "aggravated by" need not be expressly stated as long as the
particular attendant circumstances are specified in the Information."

Conspiracy Charged as a Crime

Thus, when conspiracy is charged as a crime, the act of conspiring and all
the elements of said crime must be set forth in the complaint or information.

The ruling was reiterated in People v. Paulina and People v. Garin3 holding
that the appellant may no longer rely on the rulings Alba and Manalansing
because of the ruling in People v. Aquino and People v. Paulino.
WHEN

DEFECT

IN

INFORMATION

CURED:

THE

For example, the crime of "conspiracy to commit treason" is committed

when, in time of war, two or more persons come to an agreement to levy war

SUBSTANTIAL
49

against the Government or to adhere to the enemies and to give them aid or
comfort, and decide to commit it. * * *

The real nature of offense is to be determined not by its designation or

title given by the Fiscal but the facts alleged in the body of the Information.

CONSPIRACY CHARGED AS MODE OF COMMITTING A CRIME

d.

The requirements of the sufficiency of the information are different when

conspiracy is not charged as a crime in itself but only as the mode of committing
the crime as in the case of Plunder consisting of several crimes.

Even the justice of the peace, during the preliminary investigation of a

case, is without authority to determine the character of the crime
committed.

There is less necessity of reciting its particularities in the information

because conspiracy is not the gravamen of the offense charged.

His declaration upon the point is merely an opinion which in no wise

binds the trial court.

The conspiracy is significant only because it changes the criminal liability

of all the accused in the conspiracy and make them responsible as co-principals
regardless of the degree of their participation in the crime.

e.

The liability of the conspirators is collective and each participant will be

equally responsible for the acts of the others.
a.

It is the province of the Court alone to say what the crime is or what it is
named.

Allegations prevail over designation of the offense in the information for

conviction of accused who may therefore be convicted of a crime more
serious than that named in the title or preliminary part if such crime is
covered by the facts alleged in the body of the information and its
commission is established by the evidence.

Need to Designate Statute Violated.

EFFECTS OF VARIANCE IN MODE OF COMMISSION OF CRIME

It is a constitutional right of any person who stands charged in a

criminal prosecution to be informed of the nature and cause of the
accusation against him.

The foregoing doctrines refer to the special qualifying circumstances that

are required to be specifically alleged in the information.
It would seem to be different when there is a mere variance in the mode of
the commission of the crime.

Pursuant to the above, Section 6, Rule 110 of the Rules of Court,

expressly requires that for a complaint or information to be sufficient, it
must, inter alia, state the designation of the offense by the statute, and the
acts or omissions complained of as constituting the offense.

A.

This is essential to avoid surprise on the accused and to afford him the
opportunity to prepare his defense accordingly.

Real Nature of Crime Determined by Facts Alleged in Complaint or

Information and Not by Title
a.

To comply with these fundamental requirements of the Constitution

and the Rules on Criminal Procedure, it is imperative for the specific statute
violated to be designated or mentioned in the charge.
b.

If the killing was committed with the attendance of any of the

circumstances mentioned in Article 248 of the Revised Penal Code, then
the offense committed is murder although they are mistakenly called
aggravating in the information.

The failure, however, to designate the offense by statute or to mention the

specific provision penalizing the act or an erroneous specification of the law
violated does not vitiate the information if the facts alleged clearly recites
the facts constituting the crime charged.

They are qualifying circumstances nonetheless.

b.

c.

What controls is not the designation of the offense but its description,
and in the case of attending circumstances, not their denomination but
their function.

The title of information or designation of offense is not controlling.

It is the actual facts recited in the information that determines the
nature of the crime.
50

Thus, where the information characterized the killing as having been

committed by taking advantage of superior strength, a circumstance
which qualifies a killing to murder, the information sufficiently charged
the commission of murder.

c.

In a prosecution for robbery with rape, the fact that the information did
not mention Art. 335 of the Revised Penal Code but Arts. 293 and 294 of
that Code will not prevent conviction of an accused under Art. 335.

It is settled that what controls is not the designation of the offense but
the description thereof as alleged in the information
5.

The constitutional right of the accused to be informed of the nature of

the accusation against him is not violated thereby.

B.P. Big. 22 cannot be deemed necessarily included in the crime of

estafa under RPC, Article 315, 2(d).
The offense of fraud denned under the Revised Penal Code is malum in
se, whereas B.P. Big. 22, also known as Bouncing Checks Law, is a
special law which punishes the issuance of bouncing checks, a malum
prohibitum.

As former Chief Justice Moran pointed out: "If the above requirement is
not complied with and no name has been given to the offense alleged to
have been committed, the defect is merely of form which does not
prejudice the substantial rights of the defendant.

Fraud or estafa under the Revised Penal Code is a distinct offense from
the violation of the Bouncing Checks Law.

This is especially so where the facts pleaded are clearly constitutive of a

specific offense.

They are different offenses, having different elements.

In such cases, the real nature of the crime charged is determined not by
the title of the complaint, nor by the specification of the provision of the
law alleged to have been violated, but by the facts recited in the
complaint or information.

Where appellant is accused of violating a particular provision of the

Revised Penal Code on estafa, she may not be convicted for violation of
B.P. Big. 22 without trenching on fundamental fairness.

This is so because from a legal point of view, and in a very real sense, it
is of no concern to the accused what is the technical name of the crime
of which he stands charged.

B.

While the general rule is that an inference in the complaint and

conclusions such as "Grave abuse of confidence" are not allowed the
following terms were interpreted by the Supreme Court is follows:

It in no way aids him in his defense on the merits.

The real question is not that he did commit a crime given in the law
some technical and specific name, but did he perform the acts alleged
in the body of the information in the manner therein set forth.

"Having committed the offense criminally and feloniously, and with intent to kill"
sufficiently avers discernment on the part of the accused who was a minor.
"Willfully, unlawfully" covers "knowingly" in illegal fishing.
Willful damage to property includes reckless imprudence.

If he did, it is of no consequence to him, either as a matter of procedure

or of substantive right, how the law denominates the crime which those
acts constitute."

"Deceit and promise of marriage was treated as mere surplusage in qualified

seduction case."

This principle was reiterated in People v. Torres, wherein the Court again
held that it is not the technical name given by the Fiscal appearing in
the title of the Information that determines the character of the crime
but the facts alleged in the body of the information, where the accused
charged with violation of General Order No. 6 for carrying with him an
unlicensed firearm punishable with life imprisonment was held guilty
under the Revised Administrative Code punishable by imprisonment of
one to five years.
c.

Essential Elements Inferred from Allegation in Information

"Intent to gain" is presumed to be alleged in an information where it is alleged

that there was unlawful taking and appropriation by the offender.

C.

Limitation on Rule that an Accused may be Convicted of a Crime which is

More Serious than that Named in the Title so Long as the Facts Alleged the
More Serious Offense
(a) An accused could not be convicted under one act when he is charged
with a violation of another if the change from one statute to the other
involves:

Although the information charged the petitioner with estafa, the crime
committed was theft.

1)
2)
51

a change of the theory of the trial;

requires of the defendant a different defense; or

3)

surprises the accused in anyway.

retardate if this is not alleged in the information.

(b) Illegal construction Where the information for illegal construction

does not specifically describe and locate the building alleged to have
been illegally constructed, it is fatally defective because it is impossible
on its face to identify the house allegedly constructed without the
necessary building permit.

It was likewise held that the accused cannot be convicted under

paragraph 2 or 3 of Article 335 of the Revised Penal Code, because none of
the modes of committing rape specified therein were alleged in the
Information.
To convict him under either of these statutory provisions is to deprive
him of the constitutional right to be informed of the accusation against him.

It can be quashed.
In several cases, the accused whose guilt beyond reasonable doubt,
although affirmed by the Supreme Court, escaped lethal injection because of
the failure of the prosecution to specifically allege the qualifying
circumstance of relationship or age in heinous crimes.

Thus in convicting appellant, the trial court relied upon a finding that
complainant was unconscious when the appellant had carnal knowledge
other.
This contradicts the allegation in the information.

The Supreme Court therefore urged the prosecuting fiscals to state

with particularity the fact of minority and the actual relationship between
the parties as worded in R.A. No. 7659.
It must be spelled out in more concrete terms.

Appellant was charged with rape committed by means of force or

intimidation.
Appellant was charged with rape committed by means offeree or
intimidation.

This is what the amendment seeks to accomplish.

The amendment did not, however, limit the requirement to qualifying
circumstances but also included aggravating circumstances.

Otherwise put, his offense fell under Article 266-A(1) of the Revised
Penal Code.

Where there is no aggravating circumstance, the penalty is reclusion

perpetual

But in convicting him of rape committed while his victim was

supposedly unconscious, the trial court applied Article 266-A(l)(b) of said
Code.

The requirement would also prevent a repetition of the errors by the

prosecutors in Republic v. Asuncion, Arceo v. Cunanan, People u. Magallanes
and Lacson u. Executive Secretary, where the prosecution failed to specify
the qualifying facts that the crimes were committed in relation to their
public office.

The element of unconsciousness on the victim's part was not alleged

much less specified in the information.
It cannot be made the basis of conviction, without violating appellant's
right to due process, in particular to be informed of the nature of the
accusation against him.

The general rule is that an accused cannot be convicted of a different

mode of the commission of the offense charged in the information.

However, in People u. Atienza, involving the rape of a 13-year old

minor charged with rape committed in 1996 by force and intimidation there
was no objection to evidence of subnormal mental incapacity (that is, her
mental capacity was equivalent to an 8 year-old).

Where the law distinguishes between two cases of violation of its

provision, an information for violation thereof must specify under which of
the two cases, the defendant stands accused of.
Where the accused is charged with rape committed thru force and
intimidation, he can not be convicted of rape committed under paragraph 2
of Article 335 when the woman is deprived of reason or otherwise
unconscious, except when there is no objection.

The court held that the absence of an allegation in the information of

this mode of committing the crime of rape was deemed waived by the
absence of an objection and the presentation of evidence to the contrary.

It was held that an accused cannot be convicted of rape of a mental

The Court cited People u. Abiera, holding that the accused charged
52

with rape through one mode of commission may still be convicted of the
crime if the evidence shows another mode of commission, provided that the
accused did not object to such evidence.

The court itself stated that the rules on the validity or invalidity of a waiver
are not something we have crafted overnight to suit the instant case.
They have been extant since time that is now immaterial to recall.

Failure to object to evidence of the mode of commission of crime

different from that alleged in the information is considered a waiver:
a.

In civil cases, we overturn decisions because the waiver of certain rights

was not done in accordance with the requisites.

There is waiver and conviction allowed based on evidence even if not

alleged in the information, citing separate opinion of then now C.J.
Davide in People v. Moreno, on waiver of constitutional right to be
informed of nature and cause of accusation.

Hence, in Intestate Estate of the Late Vito Borromeo v. Borromeo, this

Court set aside the waiver of hereditary rights because it was not clearly and
convincingly shown that the heir had the intention to waive his right or
advantage voluntarily.

In this case, the accusatory portion failed to specifically allege that the
rape was committed through force or intimidation, the prosecution was
able to establish by evidence without any objection that the accusedappellant that tended to prove that he committed the rape by force and
intimidation.
b.

In criminal cases where life, liberty and property are all at stake, obviously,
the rule on waiver cannot be any less.
In this light, we are at a loss why counsel de oficio for accused-appellant
did not touch upon this point when something more valuable than any property
that a person could ever inherit in his lifetime is in danger of being taken away
eternally.

Similarly, in People v. Orbita, the Information against accused-appellant

alleged that he had carnal knowledge of the victim by means offeree,
violence and intimidation, against the latter's will and consent.
It did not allege her mental state.

It is elementary that the existence of waiver must be positively

demonstrated since a waiver by implication cannot be presumed.

During the trial, however, the prosecution proved that the victim is a
mental retardate and the accused-appellant was convicted under
paragraph 2 of Article 335 of the Revised Penal Code.

The standard of waiver requires that it "not only must be voluntary, but
must be knowing, intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences."

Although initially deficient, the criminal complaint was deemed

corrected when the prosecution introduced evidence of the complainant's
mental condition and the defense did not object, thereby waiving the
procedural defect.

There must thus be persuasive evidence of an actual intention to relinquish

the right.
Mere silence of the holder of the right should not be easily construed as
surrender thereof; the courts must indulge every reasonable presumption
against the existence and validity of such waiver.

Accordingly, appellant can be convicted of the crime charged through

either the second or third circumstance of committing such crime.

Necessarily, where there is a reservation as to the nature of any manifestation or proposed action affecting the right of the accused to be heard
before he is condemned, certainly, the doubt must be resolved in his favor to be
allowed to proffer evidence in his behalf.

OBSERVATIONS: LIMITATION ON WAIVER

The information in the foregoing cases charges an offense but allowed
waiver because of a variance between the allegation and proof in the mode of
commission of the offense without any objection.

Our criminal rules of procedure strictly provide the step-by-step formula to

be followed by courts in cases punishable by death.

Where the information charges no offense at all or would result in convicting the accused for a more serious offense than the offense charged waiver for
failure to object should not be allowed.

The reason for this is to ensure that the constitutional presumption of

innocence in favor of the accused is preserved and the State makes no mistake
in taking life and liberty except that of the guilty.
53

"While it has been stated generally that all personal rights conferred by statute and
guaranteed by constitution may be waived, it has also been said that constitutional
provisions intended to protect property may be waived, and even some of the
constitutional rights created to secure personal liberty are subjects of waiver."

Hence, any deviation from the regular course of trial should always take
into consideration that such a different or extraordinary approach has been
undertaken voluntarily and intelligently.
For otherwise, as in the instant case, denial of due process can be
successfully invoked since no valid waived or rights has been made.

While it is established that rights may be waived, Article 6 of bhe Civil Code
explicitly provides that such waiver is subject to the condition that it is not
contrary to law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.

The Court noted with deep regret the failure of the trial court to inquire
from accused-appellant himself whether he wanted to present evidence; or
submit his memorandum elucidating on the contradictions and insufficiency of
the prosecution evidence, if any; or in default thereof, file a demurrer to
evidence with prior leave of court, if he so believes that the prosecution
evidence is so weak that it need not even be rebutted.

Thus, in the following cases, waiver was not allowed as it would violate the
constitutional right of the accused to be informed of the nature and cause of the
accusation against him, and, consequently, a denial of due process.
a.

The inquiry is simply part and parcel of the determination of the validity of
the waiver, i.e., "not only must be voluntary, but must be knowing, intelligent,
and done with sufficient awareness of the relevant circumstances and likely
consequences." which ought to have been done by the trial court not only
because this was supposed to be an uncomplicated and routine task on its part,
but more importantly since accused-appellant himself did not personally, on a
person-to-person basis, manifest to the trial court the waiver of his own right.

An accused cannot be convicted of rape or acts of lasciviousness or of

violation ofR.A. No. 7610 under an information which charges the accused of
raping his six year-old daughter or committing acts of lasciviousness on her,
or of committing sexual abuse against her 11-year old daughter.
Waiver is not allowed where the information charges no offense.
An indictment must fully state the elements of the specific offense
alleged to have been committed.

As things stand, both this Court and the trial court being asked hook, line
and sinker to take the word of counsel de oficio whose own concern in that
particular phase of the proceedings a quo may have been compromised by
pressures of his other commitments.

For an accused cannot be convicted of an offense, even if duly proven,

unless it is alleged or necessarily included in the complaint or information
b.

For all we know, the statutory counsel of the indigent accused at that time
of the trial, although not evident in the other aspects of his representation, only
wanted to get rid of dreary work rather than protect the rights of his client.

Waiver is not allowed where the qualifying circumstance is different from the
qualifying circumstance alleged in the information.
Where the accused alleged to be the father of the victim who is under
18 years of age is charged with rape under paragraph 2 of Article 266-A
punishable by reclusion temporal he cannot be convicted of rape under
paragraph 1 of Article 266-A punishable by death, even if this was duly
established.

Of course, it may be stretching the argument too much to ascribe fatal

incompetence upon herein accused's counsel for this solitary instance of faux
pas.
But, for sure, we must inquire if the waiver was validly done.

c.

In People v. Donato," the Court expounded on what rights and privileges

may be waived, viz.:

Waiver is not allowed where it would result in a more serious penalty.

Under sections 8 and 9, Rule 110 failure to allege aggravating or
qualifying circumstances, even if proved without objection cannot be availed
of to qualify or aggravate the offense charged.

"Although the general rule is that any right or privilege conferred by statute or
guaranteed by constitution may be waived, a waiver in derogation of a statutory
right is not favored, and a waiver will be inoperative and void if it infringes on
the rights of others, or would be against public policy or morals and the public
interest may be waived.

The court ruled that the relationship and minority of the victim are
special qualifying circumstances which cannot be considered unless
specifically alleged in the information.
54

The right to be arraigned cannot be waived. There can be no trial in

absentia without arraignment which must be in the presence of the accused.

statute, i.e., that he did not use the prohibited drug upon the prescription of a
physician, veterinarian or dentist, nor is it necessary to prove such allegation if
made unnecessarily, because said exception is a matter of defense which the
accused must prove.
To determine whether the exception is or is not a matter of defense, the
following test has been approved: If the language of the law defining the otfense
is so entirely separable from the exception that the ingredients constituting the
offense may be accurately and clearly defined without any reference to said
exception, the pleader may then safely omit such reference, as the exception is
a matter of defense which must be shown by the accused.

Variance, however, on date of commission of rape is irrelevant.

Habitual delinquency
A mere statement of habitual delinquency is a conclusion of law and a plea
of guilty to such an information does not make the accused a habitual
delinquent.
The information should specify the dates:

If, however, the exception is so incorporated with the language defining the
offense that the ingredients of the offense cannot be accurately and clearly
described if the exception is omitted, the indictment founded upon the statute
must allege enough to show that the accused is not within the exception.
And, when the evident intent and purpose of the statute is to prohibit and
penalize generally an act as, for instance, the smoking of opium, and the statute
desires to withdraw from its operation a limited class of persons, one charged
with its violation is bound to show that he falls within the exception, whether the
excepting proviso is found in the enacting clause or in a separate provision of
the statute.

(1) of the commission of previous crimes;

(2) of the last conviction or release; and
(3) of the other previous conviction or release of the accused.
ABSENCE OF ALLEGATION OF RECIDIVISM AND HABITUAL DELINQUENCY
In the Absence of allegations in Information of Recidivism and Habitual
Delinquency the evidence was properly objected to as inadmissible.
Similarly, the qualifying circumstance of treachery must be specifically
pleaded or alleged with sufficient clarity as to be readily understood and not
merely deduced.

A negative allegation of recruiting without a license, forms an essential

element of the crime charged. Hence, it was incumbent upon the prosecution to
satisfactorily establish the date when the complainant was recruited.

Negative and Excepting Allegations

When an exception or negative allegation is not an ingredient of the
offense and is a matter of defense it need not be alleged.

(1) "Without necessary license" is an ingredient of violation of Circular No. 60 of

the Central Bank prohibiting the import and export of Philippine coins and
notes.

An exception in a penal statute by which certain particulars are withdrawn

from or excepted out of its enacting clause, defining a crime concerning a class
or species, need not be denied in an information charging a violation of said
statute.

(2) Want of Certificate to practice medicine is an essential element of the crime

of illegal practice of medicine.
(3) In illegal possession of firearm, the information must allege that accused has
no license to possess firearm.

And where a denial is unnecessarily alleged in the information, it need not

be proved by the prosecution, for it is not an essential element of the violation
charged, but a matter of defense which must be proved by the accused if he
relies upon it.

Where the law distinguishes between two cases of violation of its provision, an information
for violation thereof must specify under which of the two cases the defendants stands
accused of.

For instance, the Opium Law provides that "save upon the prescription of a
duly licensed and practicing physician, veterinarian, or dentist, no person shall
inhale, snuff, chew, swallow, inject, or otherwise take or use any such drug in his
body or permit the same to be used upon him by another."

An accused charged with murder by means of stabbing cannot be convicted of homicide thru drowning, otherwise, his constitutional right to be
informed of the nature and cause of the accusation against him would be
violated, so also a person may not be convicted of qualified seduction where the
information charges him with rape by means offeree, violence and intimidation.

In an information charging a violation of this statute, it is not necessary to

allege that the person charged is not under the exception contained in the

Inference in complaint and conclusions are not allowed.

55

"Grave abuse of confidence" is a conclusion of law.

"Time" of the commission of the offense was changed to "DATE."
Robbery with Homicide
Crimes Where Time is Essential
Failure to state in the information that the killing of the victim was
committed "by reason of or on occasion of the robbery," does not bar conviction
of accused of the special complex crime of robbery with homicide.

a.
b.
c.

SEC. 10.
Place of commission of the offense

Infanticide;'
Violation of Sunday Statutes (Election Law); and
Abortion.

The complaint must allege a specific time and place when and where the
offense was committed, but when the time so alleged is not of the essence of
the offense, it need not be proved as alleged, and the complaint will be sufficient
if the evidence shows that the offense was committed at anytime within the
period of the statute of limitation and before the commencement of the action.

Purpose of Rule: TO SHOW TERRITORIAL JURISDICTION.

Crimes Where Place is Essential

Where the complaint for rape charges accused with having committed the
crime "on or about the month of June 1978" and the affidavit shows that it was
committed for "sometime prior to said period and subsequent thereto,"
attaching thereto the affidavit of the complainant that she was abused before
the start of classes in June 1978 which may thus be considered as part of the
complaint, the discrepancies between the accusation and the complaint as to
the time of occurrence of the carnal copulations in rape do not affect the
essential rights of the accused, where the acts occurred within the period of time
alleged in both writings, and the difference noted in other respects was of a
formal, rather than a substantial, character.

a. Violation of domicile;
b. Penalty on keeper, watchman and visitor of an opium den;
c. Trespass to dwelling;
d. Violation of election law, e.g., 30 meter-radius carrying of deadly weapon
prohibited.
A general allegation in the complaint that the felony was committed within
the jurisdiction of the court is sufficient.
The remedy is a motion for Bill of Particulars under Rule 116, Sec. 6.

"About" is a very comprehensive term which when used with regards to

time, may cover a considerable extent thereof.

Venue of Criminal Action for Written Defamation

Venue in criminal cases is an essential element of jurisdiction.

BUT in U.S. v. Smith it was held that the proof need not correspond to
the allegation, unless the time and place is material and of the essence of the
offense as a necessary ingredient in its description.

To determine venue in libel cases, the complaint or information should

contain allegations as to whether, at the time the offense was committed, the
offended party was a public officer or a private individual and where he was
actually residing at the time.

The evidence is admissible and sufficient if it shows:

(1) that the crime was committed at any time within the period of limitation
and

Whenever possible, the place where the written defamation was printed
and first published should likewise be alleged.

(2) before or after the time stated in the complaint or indictment and before
the action is commenced.

That allegation would be a sine qua non if the circumstances as to where

the libel was printed and first published is used as the basis of the venue of the
action.

Thus, an information charging the commission of the crime of robbery in

December 1902, was filed in March 19, 1903.

SEC. 11.
Date of Commission of the Offense

It was held that the complaint was sufficient to sustain a conviction even if
the proof showed that it was committed in January 1903.
56

informed of the nature and cause of the accusation against him.

It was, however held, in U.S. v. Dickao, that an allegation from October
1910 to August 1912 is defective:

Petitioner's claim is unavailing.

The rule in this jurisdiction is that "variance between the allegations of the
information and the evidence offered by the prosecution in support thereof does
not of itself entitle the accused to an acquittal."

To allege in an information that the accused committed rape on a certain girl

between October 1910, and August 1912, is too indefinite to give the accused an
opportunity to prepare his defense, and that indefiniteness is not cured by setting out the
date when a child was born as a result of such crime.

The rules on criminal procedure require the complaint or information to

state the name and surname of the person against whom or against whose
property the offense was committed or any appellation or nickname by which
such person has been or is known and if there is no better way of identifying
him, he must be described under a fictitious name.
In case of offenses against property, the designation of the name of the
offended party is not absolutely indispensable for as long as the criminal act
charged in the complaint or information can be properly identified.

An information for bigamy must state the time and place of the second
wedding.
Variance, however, on date of commission of rape is irrelevant.
Time is irrelevant in rape" and violations of the Dangerous Drugs Law
cases.

In U.S. v. Kepner, the Court laid down the rule that when an offense shall
have been described in the complaint with sufficient certainty as to identify the
act, an erroneous allegation as to the person injured shall be deemed immaterial
as the same is a mere formal defect which did not tend to prejudice any
substantial right of the defendant.

SEC. 12.
Name of the Offended Party
Name of Offended Party
The rules on criminal procedure require the complaint or information to
state the name and surname of the person against whom or against whose
property the offense was committed or any appellation or nickname by which
such person has been or is known and if there is no better way of identifying
him, he must be described under a fictitious name.

Accordingly, in the aforementioned case, which had a factual backdrop

similar to the instant case, where the defendant was charged with estafa for the
misappropriation of the proceeds of a warrant which he had cashed without
authority, the erroneous allegation in the complaint to the effect that the
unlawful act was to the prejudice of the owner of the cheque, when in reality the
bank which cashed it was the one which suffered a loss, was held to be
immaterial on the ground that the subject matter of the estafa, the warrant, was
described in the complaint with such particularity as to properly identify the
particular offense charged.

In crimes against property, the object taken or destroyed should be

particularly described to properly identify the crime (if the name of the offended
party is unknown).
In case of offenses against property, the designation of the name of the
offended party is not absolutely indispensable for as long as the criminal act
charged in the complaint or information can be properly identified.

In the instant suit for estafa which is a crime against property under the
Revised Penal Code, since the check, which was the subject matter of the
offense, was described with such particularity as to properly identify the offense
charged, it becomes immaterial, for purposes of conviction of the accused, that
it was established during the trial that the offended party was actually Mever
Films, Inc., and not Ernesto Rufino, Sr. nor Bank of America as alleged in the
information.

NAME OF OFFENDED PARTY IN OFFENSES AGAINST PROPERTY

In Sayson v. People (supra), the petitioner vigorously maintains that he
cannot be justifiably convicted under the information charging him of attempting
to defraud Ernesto Rufino, Sr. and/or Bank of America because the totality of the
evidence presented by the prosecution shows very clearly that the accused
allegedly attempted to defraud Mover Films, Inc., a corporate entity entirely
separate and distinct from Ernesto Rufino, Sr.

Other Cases
a.

He firmly asserts that his conviction was in gross violation of his right to be
57

Even if the names of offended parties are not alleged, if the offense belongs
to the class of harmful ones (illegal practice of medicine), the victims of
petitioner should be considered as offended parties.

each offense.
b.
c.

An erroneous allegation as to the person injured is of form which did not

tend to prejudice any substantial right of the accused on the merits.

A motion to quash that more than one offense charged should therefore be
filed, otherwise it is deemed waived and the accused may be convicted for as
many offenses charged and proved.

The name of the offended party is, however, material in slander.

The act of insulting X is distinct from a similar act of insult against Y,
even if the insult is preferred by the same person, in the same language,
and at about the same time.

d.

In robbery, ownership is not necessary.

e.

The damage inflicted in estafa need not fall on the same person against
whom deceit was directed.

f.

In robbery with violence against or intimidation of person, the allegation of

the owner's name in the information is essential.

g.

The omission of value in theft cases is not fatal.

h.

People v. Avellana, an information for murder is not defective where

another's name not the victim's name is placed in the information. It is
merely clerical.

Under Section 3, Rule 117, the accused may move to quash the complaint
or information on the ground that more than one offense is charged except in
those cases in which existing laws prescribe a single punishment for various
offenses.
Upon the other hand, when two or more offenses are charged in a single
complaint or information, and the accused fails to object to it before trial, the
court may convict the accused of as many offenses as are charged and proved,
and impose on him the penalty for each and every one of them setting out
separately the findings of fact and law in each case.
CASES WHERE INFORMATION CHARGES MORE THAN ONE OFFENSE
An information is defective for duplicity where the accused is charged in
one complaint for assaulting three (3) persons by different acts while they were
asleep, an information which charges two violations of the Revised Penal Code
contained in two separate provisions is duplicituous.
An information for malversation of public funds through falsification of
public documents and loss and destruction of public documents for purposes of
concealing a crime was held as defective.
So is an information which charges estafa and falsification to conceal the
defraudation.

SEC. 13.
Duplicity of the offense
Purpose of Rule

a.
The information is defective when it charges two or more offenses.
The rule enjoining the charging of two or more offenses in an information
has for its aim to give the defendant the necessary knowledge of the charge to
enable him to prove his defense.

Inclusion of Different Acts of Offenses to Complete Narration of

Facts
Where the different acts or specifications charging the accused with
having committed the offenses charged therein were included in the
information merely to describe and to narrate the different and specific acts,
the sum total of which constitutes a crime, the validity of the information
cannot be assailed on the ground that it charges more than one offense,
because those different acts or offenses may serve merely as a basis for the
prosecution of one single crime."

The State should not heap upon the defendant two or more charges which
might confuse him in his defense.
Effects of Duplicity of Offenses Charged

In the case of U.S. v. Cernias, it was held that while it is true that each
of those acts charged against the conspirators was itself a crime, the
prosecutor in setting them out in the information did no more than to furnish
the defendants with a bill of particulars of the facts which it intended to
prove at the trial, not only as a basis upon which to found an inference of
guilt of the crime of conspiracy but also as evidence of the extremely

Where the accused is charged in one information with more than one
offense and makes no objection to the information on the ground that it charges
more than one offense, the prosecution may properly submit evidence as to the
commission of each and all offenses charged and the court may properly enter
judgment for each and every offense proved and impose the proper penalties for
58

dangerous and wicked nature of that conspiracy.

accused in preparing his defense.

The charge is not defective for duplicity when one single crime is set
forth in the different modes prescribed by law for its commission, or the
felony is set forth under different counts specifying the way of its
perpetuation, or the acts resulted from a single criminal impulse.

Here, however, the prosecution charged each petitioner with four

offenses, with each Information charging only one offense.
d. Falsification

Neither is there duplicity when the other offense described is but an

ingredient or an essential element of the real offense charged nor when
several acts are related in describing the offense.

The defendant, a municipal treasurer, received from different persons

for personal cedulas more than the amount allowed by law falsified the
records of his office so that they showed the receipt of the lawful amount
only, and in his monthly statements to the provincial treasurer made similar
false statements.

b. Single Offense Committed by Different Means

It is "a well-settled rule in considering indictments that where an
offense may be committed in any of several different modes, and the
offense, in any particular instance, is alleged to have been committed in two
or more modes specified, it is sufficient to prove that it be such as to
constitute the substantive offense," and the defendants, may, therefore, be
convicted if any one of the substantive charges into which the complaint
may be separated has been made out.

Held: That a complaint alleging these facts did not charge more than
one offense.
e.

A person accused of an offense is not charged by the number of counts

or paragraphs, but by the specific criminal acts regardless of their number
contained in one paragraph or in one count.

It is not objectionable, when a single offense may be committed by the

use of different means to charge in the alternative, the various means by
which the crime may have been committed.

A person accused of an offense is not considered as having been

charged by the number of counts or paragraphs into which the acts charged
may have been grouped in the information, but by the specific criminal acts
charged, even if two or more of them are contained in one paragraph or in
one count.

Thus, the defendant was accused of the violation of the Medical Law.
The information charged both illegal practice of medicine and illegally
advertising oneself as a doctor.

While it is convenient that each count or paragraph should contain only

one offense or one specific act of treason for the sake of clearness, this does
not justify the inference or claim that all of the acts charged under one
count or paragraph should be considered as only one act of offense, and
proof of all the acts included therein is necessary to prove the charge.

Held: That the information was not bad for duplicity inasmuch as the
acts charged were merely different means of committing the same offense,
notwithstanding the fact that they are prohibited by separate sections of the
statute.
f.
c.

Treason

Single act that Violates Different Statutes

A single act or incident might offend against two or more entirely
distinct and unrelated provisions of law thus justifying the prosecution of the
accused for more than one offense.

Effect of Failure of the Prosecution to Prove All Acts Charged Where

Each Act Constitutes Treason by Itself
If a person is being charged with four specific acts under one count,
and each constitutes a complete act of treason by itself independently of the
others, the failure of the prosecution to prove all does not entitle the
accused to be acquitted of the whole count or of all the charges contained
therein when any one or more of the acts are proved.

The only limit to this rule is the Constitutional prohibition that no

person shall be twice put in jeopardy of punishment for "the same offense."
two (or more) offenses arising from the same act are not "the same."

g. Robbery in Band
The Rules prohibit the filing of such Information to avoid con fusing the
59

An information which charges the commission of "robbery in a band or

brigandage" and alleges facts showing the commission of an act of robbery
by a band of robbers, simply sets out the same fact in different aspects and
is not bad for duplicity.

The several acts were considered by the court as constituting only one
crime.
For delito continuado to exist, there should be a plurality of acts performed
during a period of time, unity of penal provision violated, and unity of criminal
intent or purpose, which means that two or more violations of the same penal
provisions are united in one and the same intent or resolution leading to the
perpetration of the same criminal purpose or aim.

h. The Anti-Graft Law

Section 3(e) of the Anti-Graft and Corrupt Practices Act does not suffer
from the constitutional defect of vagueness by the use of the phrases
"manifest partiality," "evident bad faith" and "gross inexcusable
negligence."

In appearance, a delito continuado consists of several crimes but in reality

there is only one crime in the mind of the perpetrator.

They merely describe the different modes by which the offense

penalized in Section 3(e) of the statute may be committed, and the use of all
these phrases in the same information does not mean that the indictment
charges three distinct offenses.
i.

Examples of Delito Continuado.

a.

Murder with Double Less Serious Physical Injuries

1)
2)
3)
4)

Where in describing the offense of murder with double less serious

physical injuries, the information states that appellant "feloniously attack,
assault and shoot for several times the victims," it in effect charged accused
with several distinct and separate crimes, as it is the allegations or actual
recitals in the information rather than the technical description of the crime
that controls.

b.

4)
5)

Violation of Child Abuse Law

Each incident of sexual intercourse and lascivious acts with a child
under the circumstances mentioned in Republic Act No. 7610 is a separate
and distinct offense.

Theft of 13 cows;
theft of six roosters;
illegal charging of fees by lawyer from revenue victims;
Illegal approval of the application for the legalization of stay of 32 aliens,
constitutes only one crime

The concept was not applied

1)
2)
3)

The defective information not having been timely objected to,

however, said defect of duplicity of charges cannot be heard belatedly on
appeal and accused may be convicted of as many offenses as are charged
therein and proved beyond reasonable doubt.
There is, however, complex crime of murder with frustrated murder
where a single shot hit both victims.
j.

The single larceny rule

6)

In Estafa committed on different occasions.

In Malversation and falsification on different ocassions
The 75 estafa cases was committed by conversion by agent of collection
from different customers on different dates.
Robbery and fencing are two separate crimes. Principle of Delito
Continuado is not applicable.
In a Single Information for murder for shooting three persons where
evidence did not show that a single shot had slain three different
persons, the appellant was properly held liable for three separate
murders and sentenced to three separate penalties ofreclusion
perpetrua.
In People v. Ducay several victims dying from separate shots
constitute separate offenses and if there is no objection for duplicity, the
accused should be convicted of all offenses charged in one information.

THE PRINCIPLE OF DELITO CONTINUADO

It is not the act of pressing the trigger like a Thompson submachine gun
that determines the number of felonies committed, but the number of bullets
which actually produced them.
The firing of several bullets by the accused although resulting from one
continuous burst of gunfire, constitutes several acts. Each person fell by
different shots, is a victim of a separate crime of murder.

Justice Quiason explains the Principle of Delito Continuado (continuing

crimes) in Santiago v. Garchitorena.
In this case, 32 Amended Informations for violation of the Anti-Graft Law
alleged that the offenses were committed on the same period of time, i.e., on or
about October 17, 1988 favoring 32 aliens.
60

required by Sections 8 and 9 of Rule 110 they cannot give rise to a special
complex crime, consistent with the right of the accused to be informed of the
nature and cause of the accusation against them.

Exceptions to Rule on Duplicity

The rule on duplicity of offenses does not apply where the law prescribes a
single penalty for various offenses such as a complex crime under Article 48 of
the Revised Penal Code or special complex crime such as Robbery with Homicide
or with Rape or Rape with Homicide, or Rebellion complexed with murder,
robbery and kidnapping.

A complex crime is committed when two persons are killed as a result of

the same murderous act of the accused.
When each one of the two deceased was killed by different and separate
sets of shots, fired respectively, through two independent sets of acts of the accused, each one aimed exclusively at a victim, for each victim killed, there is a
separate and independent crime of murder.

Rule on Complex Crimes

The precise language of the statute used in alleging the commission of the
crime is not necessary as long as in charging the commission of a complex
offense like that of Robbery with Homicide, the information alleges each element
of the component offenses with the same precision that would be necessary if
they were made the subject of a separate prosecution.

WHEN ONE OFFENSE IS NECESSARY MEANS FOR COMMITTING THE

OTHER
a. Falsification of cedulas to commit malversation.
b. Estafa thru falsification.

Thus, although the phrase by reason or on occasion of the robbery as

provided for by the Revised Penal Code, was not literally used in the recital of
facts alleging the commission of the two crimes of robbery with homicide, the
information as filed sufficiently and distinctly alleges the commission of the two
crimes of robbery and homicide and adequately informs the accused of the
crime charged.

When two or more acts combined in the commission of one crime, the
complaint is not necessarily defective because it contains a description of two
acts.
If the acts are so disconnected as to constitute separate and distinct
offenses or crimes, then of course, it would not be error to charge each of said
acts in different complaints but where the acts are so related as to constitute in
fact but one offense, then a complaint will not be defective if the crime is
described by relating two acts in the description of one offense.

Under Article 48 of the Revised Penal Code, when a single act constitutes
two or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.

To be a complex crime, the offense must be a necessary means for

committing the other, but if one offense is to conceal the other, the accused
may be convicted for both offenses as in case of arson to conceal homicide or
falsification to conceal malversation.

The throwing of a hand grenade at the President with the intention of killing
him resulting in the death and injuries of several persons constitutes the
complex crime of murder with attempted murder.
For a criminal complaint or information to charge the commission of a
complex crime, the allegations contained therein do not necessarily have to
charge a complex crime as denned by law.

OTHER CASES:
1) Killing of four victims on the same occasion of the robbery is robbery with
quadruple homicide only one crime.

It is sufficient that the information contains allegations which state that one
offense was a necessary means to commit the other.

2)

The information in question in the present case contains allegations properly charging the commission of the complex crime of incriminatory
machinations through unlawful arrest, and the court a quo committed error
when it ordered its dismissal.

Robbery with homicide and rape only one crime.

Accused who abducted the victim and had sexual intercourse with her
for several days is not guilty of separate offense but the continuing offense
of abduction with rape.
No Duplicity in Rape With Homicide

Where, however component offenses are not alleged in the information as

61

There is no duplicity in an information for rape with homicide.

Where aside from selling one block of marijuana to the arresting

officers, accused-appellants were also caught in possession of another 12.04
kilograms of marijuana in twelve individually wrapped blocks, hidden in a
bag under a table in their house.

Where seven persons committed rape with homicide in conspiracy with

each other, every one of the seven accused may separately be charged for rape
with homicide.

Their possession thereof gives rise to a disputable presumption under

Section 3(j), Rule 131 of the Rules of Court, that they were the owners of the
same.

There is no duplicity in a charge of estafa committed by the accused for

misappropriation of the purchase price of several lots owned by the Hometrust
Corporation which were fraudulently received by the accused against seven lot
buyers on the pretext that she was authorized to do so and which she
misapplied to her personal use instead of remitting the money to the owner
corporation, and seven other separate informations of estafa committed against
the seven lot buyers.

b. Forcible Abduction Absorbed in Rape

Where complainant was forcibly taken away for the purpose of sexually
assaulting her, then the rape so committed may absorb the forcible
abduction.

The crime of estafa committed against the corporation and those

committed against the lot buyers are definitely separate felonies.

The trial court, thus, correctly held that the rape charged and proved in
Criminal Case No. 44263 already absorbed the forcible abduction with rape
complained of in Criminal Case No. 44264.

They were dictated by different criminal intents, committed under different

modes of commission provided by the law on estafa, perpetrated by different
acts, consummated on different occasions, and caused injury to different
parties.
a.

c.

On petitioners' claim that the charge for violation of Article 365 of the
RPC "absorbs" the charges for violation ofP.D. No. 1067, P.D. No. 984, and
R.A. No. 7942, suffice it to say that a mala in se felony (such as Reckless
Imprudence Resulting in Damage to Property) cannot absorb mala prohibita
crimes (such as those violating P.D. No. 1067, P.D. No. 984, and R.A. No.
7942).

The Principle of Absorption

1)

Drugs Cases
In People v. Salamat, the illegal possession of 137 cans of opium and
sale of 37 cans of opium was held as two isolated acts and not one,
each of which is punishable in themselves.

What makes the former a felony is criminal intent (dolo) or negligence

(culpa); what makes the latter crimes are the special laws enacting them.

Only in the event where all the amount of the opium possessed and
seized be in its totality the same as that which was possessed with the
sole purpose of being delivered as the matter or subject of a sale
previously agreed upon, could it be said that the possession of the
opium was a necessary means to effect the delivery by reason of the
sale, and that the sale agreed upon was the sole reason for the
possession of the opium seized.
2)

Absorption does not include special laws

REBELLION CANNOT BE COMPLEXED

COMMITTED IN THE COURSE THEREOF

WITH

ANY

OTHER

OFFENSE

The celebrated case of Enrile v. Salazar, reiterated the Hernandez Rule,

which ruled out the complexing of rebellion witl-any other offense committed in
its course under either of the clauses of Article 48 of the Revised Penal Code
either as a means necessary to its commission or as an unintended effect of an
activity that constitutes rebellion.

When Possession of Drugs Absorbed in Sale

In People v. Lacerna, possession of marijuana was held as absorbed in
the sale thereof, except where the seller is further apprehended in
possession of another quantity of the prohibited drugs not covered by or
included in the sale and which are probably intended for some future
dealings or use by the seller.

The rule was reiterated in Enrile u. Amin, where the Supreme Court ruled
that the crime of Harboring or Concealing a Criminal was absorbed by the crime
of rebellion for which Senator Enrile had already been charged and can not
therefore be made the subject of a separate criminal action.
The Supreme Court went on to explain:
62

All crimes, whether punishable under a special law or general law, which
are mere components or ingredients, or committed in furtherance thereof,
become absorbed in the crime of rebellion and can not be isolated and charged
as separate crimes in themselves.

"The crime of rebellion consists of many acts.

It is described as a vast movement of men and a complex net of intrigues and plots.
Jurisprudence tells us that acts committed in furtherance of the rebellion though
crimes in themselves are deemed absorbed in the one single crime of rebellion.
In this case, the act of harboring or concealing Col. Honasan is clearly a mere
component or ingredient of rebellion or an act done in furtherance of the rebellion.

This does not detract, however, from the rule that the ingredients of a
crime form part and parcel thereof, and hence, are absorbed by the same and
cannot be punished either separately therefrom or by the application of Article
48 of the Revised Penal Code.

It cannot therefore be made the basis of a separate charge. The case of People v.
Prieto is instructive."

The Hernandez and other related cases mention common crimes as

absorbed in the crime of rebellion.

In the nature of things, the giving of aid and comfort can only be
accomplished by some kind of action.

These common crimes refer to all acts of violence such as murder, arson,
robbery, kidnapping, etc., as provided in the Revised Penal Code.

Its very nature partakes of a deed or physical activity as opposed to a

mental operation.
This deed or physical activity may be, and often is, in itself a criminal
offense under another penal statute or provision.

The attendant circumstances in the instant case, however, constrain us to

rule that the theory of absorption in rebellion cases must not confine itself to
common crimes but also to offenses under special laws which are perpetrated in
furtherance of the political offense.

Even so, when the deed is charged as an element of treason it becomes

identified with the latter crime and can not be the subject of a separate punishment, or used in combination with treason to increase the penalty is Article 48 of
the Revised Penal Code provides.

Petitioner's alleged act of harboring or concealing which was based on his

act of conspiring with Honasan was committed in connection with or in
furtherance of rebellion and must now be deemed as absorbed by, merged in,
and identified with the crime of rebellion punished in Articles 134 and 135 of the
RPC.

Just as one can lot be punished for possessing opium drug, in a prosecution
for smoking the identical drug, and a robber cannot be held guilty of coercion or
trespass to a dwelling in a prosecution for robbery, because 3ossession of opium
and force and trespass are inherent in smoking and in robbery respectively, so
may not a defendant be made liable for murder as a separate crime or in
conjunction with another offense where, as in this case, it is averred as a
constitutive ingredient of reason.
THE PRINCIPLE OF ABSORPTION IN REBELLION APPLIES TO SPECIAL
LAWS

Thus, national, as well as international laws and jurisprudence

overwhelmingly favor the proposition that common crimes, perpetrated in
furtherance of a political offense, are divested of their character as "common"
offenses, and assume the political complexion of the main crime of which they
are mere ingredients and consequently, cannot be punished separately from the
principal offense, or complexed with the same, to justify the imposition of a
graver penalty.

The prosecution tries to distinguish by contending that harboring or

concealing a fugitive is punishable under a special law while the rebellion case is
based on the Revised Penal Code; hence, prosecution under one law will not bar
a prosecution under the other.

EFFECT OF FAILURE TO OBJECT TO INDEPENDENT PROSECUTION FOR

ILLEGAL POSSESSION
In People v. Elias Rodriguez, the accused, after having pleaded guilty and
convicted of the crime of rebellion, faced an independent prosecution for illegal
possession of firearm.

The Court held that: "This argument is specious in rebellion cases."

In the light of the Hernandez doctrine, the prosecution's theory must fail.

The Court ruled:

The rationale remains the same.

63

"An examination of the record, however, discloses that the crime with which the
accused is charged in the present case which is that of illegal possession of
firearm and ammunition is already absorbed as a necessary element or
ingredient in the crime of rebellion with which the same accused is charged with
other persons in a separate case and wherein he pleaded guilty and was
convicted

were accomplished for private purposes or profit, without any political

motivation, it has been held that the crime would be separately punishable as a
common crime and would not be absorbed by the crime of rebellion.

Conceding the absence of a complex crime of rebellion with murders, etc.,

still, by his plea of guilty, the accused-appellant has admitted all the overt acts
described in the information; and that if any of such acts constituted an
independent crime within the jurisdiction of the lower court, then the averment
in the information that it was perpetrated in furtherance of the rebellion, being a
mere conclusion, cannot be a bar to appellant's conviction and punishment for
said offense, he having failed, at the arraignment, to object to the information
on the ground of multiplicity of crimes charged."

An accused may, moreover, be charged with as many crimes as defined in

our laws even if these arose from one incident.

Enrile Doctrine Not Applicable in Subversion

There is no complex crime of illegal possession of Firearm used in Homicide

but they may be filed separately (qualified illegal possession of firearm is only
one offense).

ILLEGAL POSSESSION OF FIREARM AND UNLAWFUL KILLING WITH THE

USE THEREOF

Thus, where a single act is directed against one person but said act
constitutes a violation of two or more entirely distinct and separate provisions of
the Revised Penal Code or by a specified law as the RPC, the prosecution of one
is not a bar to the other, but such crimes should be alleged in separate
information.

In People v. Asuncion, it was held that the crime of illegal possession of

firearms under P.D. No. 1806 is not absorbed in the charge of subversion under
R.A. No. 1700.

People v. Deunida, reiterated the same principles, but pointed out that the
use of unlicensed firearm must be alleged, otherwise, the crime is only murder.

Political Motive Must Be Shown

Abandonment of Doctrine
In People u. Louedioro, the court held that divested of its common
complexion, any ordinary act, however, grave, assumes a different color by
being absorbed in the crime of rebellion, which carries a lighter penalty than the
crime of murder.

In case homicide or murder is committed with the use of unlicensed

firearm, such use of unlicensed firearm shall be merely considered as
aggravating.

In deciding if the crime committed is rebellion, not murder, it becomes

imperative for our courts to ascertain whether or not the act was done in
furtherance of a political end.

R.A. No. 8294 amended P.D. No. 1866 abandoned previous rulings that
qualified use of firearms and murder are separate offenses.
Under the present rule, the unauthorized use of licensed or unlicensed
firearm is simply an aggravating circumstance in the commission of homicide or
murder and no longer a separate offense, effectively modifying People v.
Quijada, and its progeny.

The political motive of the act should be conclusively demonstrated.

In such cases, the burden of demonstrating political motive falls on the
defense, motive being a state of mind which the accused, better than any
individual knows.

Thus, it has been held that the principle of absorption does not apply to
illegal possession of firearms in connection with the crime of subversion but
simply describes the mode or manner by which the violation of Section 1 of P.D.
No. 1866 was committed so as to qualify to the penalty of death.
The charge should therefore be amended to simple illegal possession of
firearm, and was accordingly deemed amended by the Supreme Court.
It should, however, be noted that under existing laws (R.A. No. 8294) if
homicide or murder is committed with the use of an unlicensed firearm, such
use of unlicensed firearm shall be considered merely as an aggravating cir-

It is not enough that overt acts of rebellion are duly proven.

Both purpose and overt acts are essential components of the crime. With
either of these elements wanting, the crime of rebellion legally does not exist.
In fact, even in cases where the act complained of were committed simultaneously with or in the course of the rebellion, if the killing, robbing, etc.,
64

cumstance and cannot be the subject of a separate prosecution.

among others, the possession of firearms against accused-appellant merely as

an aggravating circumstance.

THE PRESENT LAW ON ILLEGAL POSSESSION OF FIREARMS

As the law stands today, there can be no longer be a separate conviction of
the crime of illegal possession of firearms under P.D. No. 1866 in view of the
amendments introduced by Republic Act No. 8294.

Where murder or homicide results from the use of an unlicensed firearm,

the crime is no longer qualified illegal possession, but murder or homicide, as
the case may be.

Instead, illegal possession of firearms is simply taken as an aggravating

circumstance in murder or homicide pursuant to Section 1 of R.A. No. 8294.

In such a case, the use of the unlicensed firearm is not considered as a

separate crime but shall be appreciated as a mere aggravating circumstance.

THE LAW HAS A RETROACTIVE EFFECT ONLY IF IT IS FAVORABLE TO THE

ACCUSED

In view of the amendments introduced by Republic Act No. 8294 to

Presidential Decree No. 1866, separate prosecutions for homicide and illegal
possession are no longer in order.

R.A. No. 8294 is given retroactive effect in the sense that the use of
unlicensed firearm in the commission of a crime is considered merely as an
aggravating circumstance and not as a separate crime.

Instead, illegal possession of firearms is merely to be taken as an

aggravating circumstance in the homicide case.

It is only when the new law will be advantageous to the accused that the
Law may be given retroactive effect, such as when it will spare him from a
separate conviction for the crime of illegal possession of firearm.

The crime of illegal possession of firearm, in its simple form, is committed

only where the unlicensed firearm is not used to commit any of the crimes of
murder, homicide, rebellion, insurrection, sedition or attempted coup d'etat.

Thus, where at the time accused was charged in two separate informations,
one with robbery with homicide with the use of an unlicensed firearm punishable
with reclusion perpetua to death and another for the use of an unlicensed
firearm punishable by death, the existing law allows the filing of the separate
informations, under existing law, the provisions considering the use of an
unlicensed firearm in the commission of the crime as aggravating cannot be
given a retroactive effect, lest it would acquire the character of an ex post facto
law.

Otherwise, the use of unlicensed firearm would be treated either:

1) as essential ingredient in the crimes of rebellion, insurrection, sedition or
attempted coup d'etat; or
2) as an aggravating circumstance in murder or homicide.
Neither can accused-appellant be charged with simple illegal possession.

Should the Court appreciate the use of an unlicensed firearm, the higher
penalty of death shall be imposed.

The same may only done where no other crime is committed.

An accused cannot be convicted of homicide or murder with "the use of the
unlicensed firearm as aggravating," inasmuch as said felonies are not charged in
the information but merely mentioned as the result of the use of the unlicensed
firearm.

Hence, the penalty should be reclusion perpetua.

On the separate charge of illegal possession of firearm, this is not allowed
under the new law.
Since this is favorable to the accused, it shall be given retroactive effect.

Accused-appellant was not arraigned for homicide or murder.

Hence, he cannot be convicted of any of these crimes without violating his
right to be informed of the nature and cause of the accusation against him, not
to mention his right to due process.

Thus, while it is true that under R.A. No. 8294, the use of an unlicensed
firearm aggravates the crimes of homicide or murder, the provisions of the said
law cannot apply to the case at bar because the crime was committed prior to
the effectivity of the said law on July 6, 1997.

Following the doctrine enunciated in People v. Molina and People v. Lazaro,

The provisions of R.A. No. 8294 may be applied retroactively so as to

65

prevent conviction of the separate crime of illegal possession of firearm because

this accrues to the benefit of the appellant.

"From the viewpoint of trial practices and justice, it is, to say the least, doubtful
whether the prosecution should split the action against the defendant, by filing
against him several informations, namely, one for damage to property and
serious and less serious physical injuries, thru reckless negligence, before the
Court of First Instance, and another for slight physical injuries thru reckless
negligence before the justice of the peace or municipal court. One thing is,
however, certain.

It cannot, however, be applied retroactively to aggravate the crime of

homicide or murder.
Illegal Possession As Separate offense

Such splitting of the action would work unnecessary inconvenience to the

administration of justice in general and to the accused in particular, for it would require
the presentation of substantially the same evidence before two different courts, the
municipal court and the Court of First Instance.

It does not, however, mean that there can no longer be any prosecution for
the crime of illegal possession of firearm.
In general, all pending cases involving illegal possession of firearm should
continue to be prosecuted and tried if no other crimes expressly indicated in
Republic Act No. 8294 are involved (murder or homicide under Section 1 and
rebellion, insurrection, sedition or attempted coup d' etat under Section 3.

Worse, still, in the event of conviction in the municipal court and appeal to the Court
of First Instance, said evidence would still have to be introduced once more in the latter
court."

Thus, where the other offense charged in a Criminal Case for violation of
COMELEC Resolution No. 3045 is not one of those enumerated under R.A. No.
8294, the respondent judge was correct in not quashing the information in the
Criminal Case.

As stated in People v. Buan:

Reason and precedent both coincide in that once convicted or acquitted of a
specific act of reckless imprudence, the accused may not be prosecuted again
for that same act.

It was however, made clear in the en bane decision in Agote u. Lorenzo,

that there can be no separate conviction for illegal possession of firearm where
another crime was commited at the same time for instance, violation of the
COMELEC resolution on gun ban even if the firearm was not being actually used
or discharged, holding that there can be no separate offense of illegal
possession of firearms and ammunition if there is another crime committed such
as illegal possession of dangerous drugs.

For the essence of quasi-offense of criminal negligence is the execution of an

imprudent or negligent act that, if intentionally done, would be punishable as a felony.
The law penalizes thus the negligent or careless act, not the result thereof.
The gravity of the consequence is only taken into account to determine the penalty,
it does not qualify the substance of the offense.

Reckless Imprudence Cases

And, as the careless act is single, whether the injurious result should affect one
person or several persons, the offense (criminal negligence) remains one and the same,
and can not be split into different crimes and prosecution.

Where both damage to property with less serious physical injuries were
caused by one single act of defendant, the information cannot be split into two
one for physical injuries and another for damage to property.

It was, however, held in Lontok, Jr. v. Gorgonio, that if one offense is light,
there is no complex crime. Separate informations must be filed.

If there is damage to property only, the amount fixed therein should be

imposed but if there are also physical injuries, there should be an additional
penalty for the latter.

Example:
Damage to property in sum of P780.00 and Slight Physical Injuries thru Reckless
Imprudence cannot be made in a single information if slight physical injuries
prescribes, it must be dismissed.

The information cannot be split into two; one for physical injuries and
another for the damage to property, for both the injuries and the damages
committed were caused by one single act of physical injuries and damage to
property.

Without mentioning Lontok, Jr. v. Gorgonio, the Supreme Court in Buerano

v. Court ofAppeals, reiterated the rule in People v. Buan

The rule was clarified in People u. Cano:

Reiteration of Lontok v. Gorgonio:

66

The Court in Reodica v. Court ofAppeals,97 held that reckless imprudence resulting in
slight physical injuries and damage to property is not a complex crime and cannot be the
subject of a single information, they are separate offenses subject to distinct penalties,
reiterating the ruling in Lontok u. Gorgonio.

fiscal may feel should be proper in the case thereafter should be addressed for
the consideration of the Court.
The only qualification is that the action of the Court must not impair the
substantial rights of the accused, or the right of the people to due process of
law.

The two offenses cannot be complexed because each offenses is not a

grave or less grave felony.

Thus, the complaint cannot be withdrawn by the Fiscal without the court's
consent.

The two offenses may, however, be consolidated since under the expanded
jurisdiction of the municipal trial courts damage to property thru reckless
imprudence now falls under its jurisdiction.
SEC. 14.
Amendment or Substitution
AMENDMENT
REQUIRED

EXPLAINED:

WHEN

LEAVE

OF

COURT

BEFORE

The provincial fiscals are not clothed with power, without the consent of
the court, to dismiss or nolle prosequi criminal actions actually instituted and
pending further proceedings.

PLEA

The power to dismiss is vested solely in the court, i.e., the presiding judge.
The Supreme Court stressed, however, that the real and ultimate test of
the independence and integrity of the trial court is not the filing of the motions
to suspend proceedings and defer arraignment at that stage of the proceedings
but the filing of a motion to dismiss or to withdraw the information on the basis
of a resolution of the petition for review reversing the Joint Resolution of the
investigating prosecutor.

Under the former rule, amendment whether as to form or substance is a

matter of right before plea.
The rule was, however, amended by requiring "any amendment before
plea, which downgrades the nature of the offense charged in or excludes any
accused from the complaint or information, can be made only upon motion by
the prosecutor, with notice to the offended party and with leave of court."

Before that time, the pronouncement in Crespo v. Mogul that "once a

complaint or information is filed in Court any disposition of the case as its
dismissal or the conviction of the accused or acquittal of the accused rests in the
sound discretion of the court, did not yet become relevant or applicable."

The court shall state its reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the offended party.
The amendment is designed to remove the absolute control of the
prosecution of a criminal action after the filing of information even before a plea
is entered which seems to be the case as provided for in the first sentence of the
first paragraph that the complaint or information may be amended, in substance
or form, without leave of court, at any time before the accused pleads; however,
under the amended rule, any amendment before plea, which lessens the gravity
of the offense charged and/or excludes any of the accused from the complaint or
information, must be filed with leave of court and the parties, especially the private complainant shall be duly furnished copies of the order resolving the
motion therefor and explaining the reasons for such disposition.

Court Must Make Independent Assessment

However, once a motion to dismiss or withdraw the information is filed the
trial judge may grant or deny it, not out of subservience to the Secretary of
Justice, but in faithful exercise of judicial prerogative.
The trial judge must himself be convinced that there was indeed no
sufficient evidence against the accused, and this conclusion can be arrived at
only after an assessment of the evidence in the possession of the prosecution.
What is imperatively required is the trial judge's own assessment of such
evidence, it not being sufficient for the valid and proper exercise of judicial
discretion merely to accept or reject the prosecution's word for its supposed
insufficiency or to simply rely on Crespo u. Mogul.

This is in accord with the ruling in Crespo v. Mogul, It is intended to prevent

the prosecution from abusing the process of amendment before plea by
dropping any of the accused from the information or reducing the offense
charged whether the accused had been arraigned or not and whether it was due
to a reinvestigation of the fiscal or a review by the Secretary of Justice, similar to
what happened in the case of Dimatulac u. Vilon.

FINDING OF GRAVE ABUSE OF DISCRETION AND NOTICE TO PARTIES

In the absence of a finding of grave abuse of discretion, the court's denial
of a motion to withdraw information pursuant to the Secretary's resolution is

Once the case had already been brought to Court whatever disposition the
67

void.
For this reason the amendment requires parties, especially the private
complainant to be duly furnished copies of the order resolving the motion
therefor and explaining the reasons for such disposition.

The amendment in a libel case which merely specifies the specific address
in Makati where the libelous articles were first printed and published is merely
formal.

The amendment under the second par may only be made especially with
notice to the offended party.

Change of Dates of Commission of Crime

Thus, the change in the date of the commission of the crime of Grave
Coercion from June 24, 1981 to August 28, 1981 is more formal than substantial
and would not prejudice the rights of the accused, as the said proposed
amendment would not alter the nature of the offense of grave coercion.

What may be Amended

Only a valid information may be amended.
An information filed before the effectivity of the law punishing the offense
may not be amended after the law had come into effect.

The difference in dates is only about two months and five days, which
disparity is amply comprehended within the allegation of "on or about."

Time to Amend

Nor will the amendment or correction cause any surprise on the accused,
who has been furnished the affidavits of the prosecution witnesses, all of which
uniformly state that the date of the commission was August 28, 1981.

Amendment of an information may be made at any time before the

accused enters a plea to the charge."

The amendment of the complaint for rape changing the date of commission
of the crime alleged in the original information from February 13, 1976 to
February 5, 1976 as testified to by the complainant, a difference of only eight (8)
days was only a matter of form and did not prejudice the rights of the appellant.

The prosecution is free to amend the information without leave of court

before arraignment.
Provided, the amendment does not downgrade the nature of the offense
charged or excludes any accused from the complaint or information.

Under Section 10 of Rule 110 of the Rules of Court "it is not necessary to
state in the complaint or information the precise time at which the offense was
committed except when time is a material ingredient of the offense, but the act
may be alleged to have been committed at any time as near to the actual date
at which the date of the offense was committed as the information or complaint
will permit."

TEST AS WHEN RIGHTS OF ACCUSED PREJUDICED BY AMENDMENT

The test as to when the rights of an accused are prejudiced by the
amendment of a complaint or information is, when a defense under the
complaint or information as it originally stood, would no longer be available after
the amendment is made, and when any evidence the accused might have,
would no longer be available after the amendment is made, and when any
evidence the accused might have would be inapplicable to the complaint or
information as amended.

The phrase "on or about" employed in the information does not require the
prosecution to "prove any precise date which is not so remote as to surprise and
prejudice the defendant.

On the other hand, an amendment which merely states with additional

precision something which is already contained in the original information, and
which therefore, adds nothing essential for conviction for the crime charged is
an amendment as to form that can be made at any time.

In case of surprise, the Court may allow an amendment of the information

as to time and an adjournment to the accused, if necessary to meet the
amendment."
In the case of People u. Riuera, the amendment of the information as to the
date of the commission of the offense from March 2, 1964 to March 2, 1965
which was due to a clerical error in the last digit of the year, the difference of
one year or twelve months was merely a matter of form and does not prejudice
the rights of the accused, reiterating the ruling in the case of U.S. v. Ramos,
where the Fiscal was permitted to amend the date of the commission of the
offense from June 16, 1910 to June 1911.

An amendment which neither adversely affects the substantial right of the

accused, e.g., does not deprive him of his right to invoke prescription nor affects
and/or alters the nature of the offense originally charged nor involves a change
in the basic theory of the prosecution so as to require the accused to undergo
any material change or modification in his defense is an amendment as to a
matter of form.
68

of the crime charge, but merely an accidental detail of the same" and it did not
deprive the accused of an opportunity to produce evidence for their defense if
they had desired, in relation to said amendment "Consequently, the accused is
not thereby denied any opportunity to present evidence in his defense."

Rule Not Applicable Where Disparity is Great

The petitioner's argument that the time or date of the commission of the
offense is not a material ingredient of the crime of qualified theft cannot be
given much weight in this case because the disparity of time between the years
1964 and 1969 is so great as to defy approximation in the commission of one
and the same offense.

The foregoing cases should, however, be distinguished from the case of

People u. Opemia, where the difference in dates was from 1947 to 1952.
The difference in date could not be attributed to a clerical error because
the difference is not only in the year but also in the month and the last two digits
of the year, and the difference "is so great as to defy approximation in the
commission of one and the same offense."

While it has been held that except when time is a material ingredient of an
offense, the precise time of commission need not be stated in the information,
this court stated that this does not mean that the prosecution officer may be
careless about fixing the date of the alleged crime, or that he may omit the date
altogether or that he may make the allegation so indefinite as to amount to the
same thing.

Discharge to be State witness under Witness Protection Rule

The foregoing rule applies in withdrawing or discharging to be a state
witness before plea some accused under the witness protection rule without the
need of proving the requirement for the discharge of a state witness despite a
pending motion for their discharge under Section 17, Rule 119 unless they are
retained in the information in which case section 17, Rule 119 is the applicable
rule.

The prosecution is given the chance to allege an approximation of time of

the commission of the offense and the precise date need not be stated but it
does not mean that it can prove any date remote or far removed from the given
approximate date so as to surprise and prejudice the accused.
In Arevalo u. Nepomuceno, the amendment which was allowed was the
allegation in the information that B carried the revolver and C, the knife, instead
ofC carrying the revolver and B, the knife.
In People v. Joseph Casey, the amendment after arraignment was to
include one of the accused Ricardo Felix alias "Carding Tuwad" who was then
armed with a firearm.

PROHIBITED AMENDMENTS; WHAT ARE SUBSTANTIAL AMENDMENTS

Amendments that are prohibited after the accused has pleaded are
amendments in substance. And the substantial matters in the complaint or
information is the recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of
form.

The Supreme Court, after stating the test as to whether a defendant is

prejudiced by the amendment, stated that: "A look into our jurisprudence on the
matter shows that an amendment to an information introduced after the
accused has pleaded not guilty thereto, which does not expose the accused to a
charge which could call for a higher penalty, does not affect the essence of the
offense or cause surprise or deprive the accused of an opportunity to meet the
new averment had each been held to be one of form and not of substance not
prejudicial to the accused and, therefore, not prohibited by Section 13, Rule 110
of the Revised Rules of Court.

Habitual Delinquency
Additional allegations of habitual delinquency and recidivism is not a
substantial amendment.

In U.S. v. dela Cruz, the amendment in the information for brigandage

sought to be made was to eliminate the words "led by one Silverio" and to
substitute the words "under the command of Luciano San Miguel" after the
prosecution rested but before the presentation of the evidence of the defense.

They do not have the effect of charging another offense different or distinct
from the charge of qualified theft contained in the information.
Neither do they tend to correct any defect in the jurisdiction of the trial
court over the subject-matter of the case.

The Supreme Court allowed the said amendment holding that it did not
prejudice in any sense the right of the accused as "it did not affect the essence

The said new allegations relate only to the range of the penalty that the
69

court might impose in the event of conviction.

In People v. Court of Appeals, the accused Sixto Ruiz who was charged with
murder entered a plea of not guilty.

They do not alter the prosecution's theory of the case nor possibly
prejudice the form of defense the accused has or will assume

After a reinvestigation, the prosecution moved to amend the information

with the inclusion of two other accused alleging conspiracy.

Additional Allegations of Conspiracy

In Regala v. CFI, the defendant was charged with murder.

The Supreme Court, citing Regala, held that the amendments would not
prejudice the accused whose participation as principal in the crimes charged did
not change.

After the plea, the fiscal presented an amended information wherein two
other persons were included as co-accused.

In People v. Montenegro, the accused was charged with robbery before the
CFI of Quezon City and entered a plea of not guilty.

There was the further allegation that the accused and his co-defendants
had conspired and confederated together and mutually aided one another to
commit the offense charged.

Before the trial could proceed, the fiscal sought to amend the complaint:

The admission of the amendment was upheld by the Supreme Court

holding that the amendment is a mere matter of form.

1) from robbery to robbery in an uninhabited place;

2) alleging conspiracy among all accused; and
3) deleting all items, articles and jewelries alleged to have been stolen in
the original information substituting them with a different set of items.

In People v. Zulueta, an information for Malversation of public property was

amended with the additional assertion that in permitting the misappropriation,
the accused acted in conspiracy with Commissioner Llanes who was
subsequently booked for malversation of the identical property also in the same
court.

The Supreme Court citing and quoting People v. Zulueta (supra), held that
the allegation of conspiracy among all the private respondents-accused which
was not previously included in the original information is a substantial
amendment saddling the respondents with the need of a new defense in order to
meet a different situation in the trial court.

The Supreme Court held that there was a substantial amendment.

Surely, the preparations have to be radically modified to meet the new
situation.
For undoubtedly, the allegation of conspiracy enables the prosecution to
attribute and ascribe to the accused all the acts, knowledge, admissions and
even omissions of his co-conspirator Angel Llanes in furtherance of the
controversy.
The amendment thereby widens the battlefront to allow the use by the
prosecution of newly discovered weapons, to the evident discomfiture of the
opposite camp.
The Supreme Court distinguished the case from Regala by explaining that
the amendment therein did not modify the basic theory of the prosecution that
the accused had killed the deceased by a voluntary act and deed.
Here there is an innovation, or the introduction of another alternative
imputation, which, to make matters worse, is inconsistent with the original
allegations.
70

AMENDMENTS AFTER PLEA CHANGING

CHARGE IS PROHIBITED

THE NATURE OF OFFENSE

therefore, falls under the jurisdiction of the Sandiganbayan, an amendment to

allege that the offense of homicide committed by a member of the PNP was
committed "in relation to his office" may be made at any time before
arraignment before the Sandiganbayan, and indeed by leave of court at any
time before judgment is rendered by the Sandiganbayan, considering that such
an amendment would not affect the juridical nature of the offense charged (i.e.,
murder), the qualifying circumstance alleged in the information, or the defenses
that accused may assert before the Sandiganbayan.

The Supreme Court held that the proposed amendments in the amended
information are clearly substantial and have the effect of changing the crime
charged from "Robbery" punishable under Article 209 to "Robbery in an
Uninhabited Place" punishable under Article 302 of the Revised Penal Code,
thereby exposing the private-respondent accused to a higher penalty as
computed to the penalty imposable for the offense charged in the original
information to which the accused had already entered a plea of "not guilty"
during their arraignment.

In other words, the amendment may be made before the Sandiganbayan

without surprising the accused or prejudicing his substantive rights.

Moreover, the change in the items, articles and jewelries allegedly stolen
into entirely different articles from those originally complained of affects the
essence of the imputed crime, and would deprive the accused of the opportunity
to meet all the allegations in the amended information, in the preparation of
their defenses to the charge filed against them.

NO NEED OF ARRAIGNMENT WHERE AMENDMENT MERELY FORMAL

It will be observed that private respondents were accused as accessories

after the fact of the minor who had already been convicted of robbery of the
items listed in the original information.

Amendments to conform to the evidence to be presented during the trial is

permissible.

Where the amendment was not substantial, no second plea is necessary.

Amendment to Conform to Evidence Allowed

MISTAKES TO CONFORM TO EVIDENCE

To charge them now as accessories after the fact for a crime different from
that committed by the principal, would be manifestly incongruous as to be
allowed by the court.

AMENDMENT BY SUBSTITUTION

An amendment deleting the word "orally" from a charge of grave threats to

conform to the evidence is merely a formal amendment since it did not affect
the nature of the crime as originally charged.

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided, the accused would not be
placed thereby in double jeopardy.

The particular manner in which the threat made is not a qualifying

ingredient of the offense.

Section 11 of Rule 119 provides that when it becomes manifest at any time
before judgment that a mistake has been made in charging the proper offense,
and the accused cannot be convicted of the offense charge, or of any other
offense necessarily included therein, the accused shall not be discharged, if
there appears to be good cause to detain him.

Addition of Intent to Gain

Where intent to gain could already be inferred from the allegations of the
information, an amendment which merely states with additional precision
something which is already contained in the complaint for robbery, and which
therefore adds nothing essential to the conviction for the crime charged is a
formal amendment and can be made at any time.

In such case, the court shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing of the proper offense.

AMENDMENT TO ALLEGE OFFENSE COMMITTED IN RELATION TO OFFICE

The rule, therefore, does not apply where the accused may be convicted of
any other offense necessarily included in the offense charged.

It has been held that after the case of homicide committed by a PNP officer
was transferred by the RTC to the Sandiganbayan after trial, on the ground that
the offense was committed in relation to the public office of the accused and,

Where the original complaint for rape charged her father with the crime of
rape allegedly committed on or about the 13th day of February but during the
trial, the complaining witness testified that she was raped by her father on
71

February 5 of the same year, there was no need for the court to dismiss the
original complaint and direct the fiscal to file the proper complaint.

The Court ruled therein that the amendment was proper, pursuant to
Section 13, Rule 106 of the 1940 Rules of Court (now Section 14, Rule 110 of the
1985 Rules on Criminal Procedure), thus:

The trial judge could have simply granted the motion for leave to amend
the complaint.
1)
2)

"Here, these rules properly apply, since it is undisputed that the herein accused
were not yet arraigned before the competent court when the complaint for
homicide was amended so as to charge the crime of murder.

Amendment and Substitution Distinguished

Scope of Rule

The above section contains two parts: One authorizes the amendment of
an information or complaint (involving the same offense or an offense which
necessarily includes or is necessarily included in the first information) in
substance or form, without leave of court, at any time before the defendant
pleads, and thereafter, only as to matters of form.

Upon the authority of said rules, the amendment could therefore be made even as to
substance in order that the proper charge may be made.

The other provides that, if it appears at any time before judgment that a
mistake has been made in charging the proper offense, the court may dismiss
the original complaint or information and order the filing of a new one charging
the proper offense (substitution), provided the defendant would not be placed in
double jeopardy.

The change may also be made even if it may result in altering the nature of the
charge so long as it can be done without prejudice to the rights of the defendant."

The claim that such amendment can only refer to matters of specification affecting
the elements constituting the crime is not correct, for there is nothing in the rule to show
that the nature of the amendment should only be limited to matters of specification.

Be that as it -may, it is quite plausible under Section 14 of Rule 110 that,

instead of an amendment, an information for homicide may also be dismissed
before the accused pleads, to give way to the filing of a new information for
murder.

Explaining Section 14 of Rule 110, the Supreme Court stressed:

"The first paragraph provides the rule for amendment of the information or
complaint, while the second paragraph refers to the substitution of the
information or complaint.

In Galvez v. Court of Appeals the Supreme Court thru Justice Regalado

extensively discussed amendments by substitution of a defective information by
the correct one.

Under the second paragraph, the court can order the filing of another information to
charge the proper offense, provided, the accused would not be placed thereby in double
jeopardy and that could only be true if the ofifense proved does not necessarily include or
is not necessarily included in the offense charged in the original information."

That is from the filing of the information up to and before trial, while
amendments during trial and be fore judgment is governed by Section 11, Rule
119 when a mistake has been made in charging the proper offense.
Perusal of the 1985 Rules on Criminal Procedure will show that there are
only two provisions concerning the dismissal of an information other than on
motion of the accused, namely, Section 14 of Rule 110 and Section 11 of Rule
119.

It has been the rule that under the first paragraph of Section 14, Rule 110,
the amendment of the information may also be made even if it may result in
altering the nature of the charge so long as it can be done without prejudice to
the rights of the accused.

But then, it may be contended that these rules speak of a dismissal by the
court when there is a mistake in charging the proper offense, but make no
mention of a dismissal made upon application of the prosecution. That is not
necessarily so.

Hence, in the case of Dimalibot v. Salcedo, the accused therein were

originally charged with homicide and were released on bail. However, the then
provincial fiscal, after a review of the affidavits of the witnesses for the
prosecution, discovered that the killing complained of was perpetrated with the
qualifying circumstances of treachery, taking advantage of superior strength,
and employing means to weaken the defense of the victim.

(a) Rule 119; Section 11, Court Initiates Substitution

Rule 119 is the rule specifically governing the trial stage where
evidence is necessarily being presented, hence, the trial court is now in a
better position to conclude that manifestly the accused cannot be convicted

Consequently, an amended information for murder was filed against the

accused who were ordered re-arrested without the amount of bail being fixed,
the new charge being a capital offense.
72

of the offense charged or of one that it necessarily includes.

Section 14 of Rule 110 was clarified to mean as follows:

It would primarily be the function of the court to motu proprio order the
dismissal of the case and direct the filing of the appropriate information.

"It may accordingly be posited that both amendment and substitution

of the information may be made before or after the defendant pleads, but
they differ in the following respects:

We do not discount the possibility of either the prosecution or the

defense initiating such dismissal and substitution at that stage, although,
from a realistic point of view, that would be a rare situation.

a.

Amendment may involve either formal or substantial changes, while

substitution necessarily involves a substantial change from the original
charge;

This provision, therefore, is more directly and principally directed to the

trial court to invest it with the requisite authority to direct by itself the
dismissal and refiling of the informations therein contemplated.

b.

Amendment before plea has been entered can be effected without leave
of court, but substitution of information must be with leave of court as
the original information has to be dismissed;

c.

Where the amendment is only as to form, there is no need for another

preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed
and the accused has to plead anew to the new information; and

d.

An amended information refers to the same offense charged in the

original information or to an offense which necessarily includes or is
necessarily included in the original charge, hence, substantial
amendments to the information after the plea has been taken cannot be
made over the objection of the accused, for if the original information
would be withdrawn, the accused could invoke double jeopardy.

(b) Rule 110, Section 14, Prosecutor Initiates Substitution

Rule 110, on the other hand, provides the procedural governance for
the prosecution of offenses. Section 14 thereof, provides in its second (now
third) paragraph the procedure and requisites for the substitution of a
defective information by the correct one.
Although, just like Section 11 of Rule 119, the permissible stage for
effecting that substitution is "at any time before judgment," unlike the latter
situation it is sufficient that "it appears x x x that a mistake has been made
in charging the proper offense, x x x."
The situation under said Section 14 contemplates a longer time span,
inclusive of the period from the filing of the information up to and before
trial.

On the other hand, substitution requires or presupposes that the new

information involves a different offense which does not include or is not
necessarily included in the original charge, hence, the accused cannot
claim double jeopardy.

Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation.

In determining, therefore, whether there should be an amendment

under the first paragraph of Section 14, Rule 110, or a substitution of
information under the second paragraph thereof, the rule is that where the
second information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first information, an
amendment of the information is sufficient; otherwise, where the new
information charges an offense which is distinct and different from that
initially charged, a substitution is in order."

Of course, that fact may be perceived by the trial judge himself but,
again, realistically it will be the prosecutor who can initially determine the
same.
That is why such error need not be manifest or evident, nor is it
required that such nuances as offenses includible in the offense charged be
taken into account.

The foregoing pronouncements may be deemed to have been

accordingly modified by the amendment to Section 14 in the sense that
even before plea, the prosecution may not amend the information to,
downgrade the offense charged or drop any of the accused from the
information without leave of court.

It necessarily follows, therefore, that the prosecutor can and should

institute remedial measures for the dismissal of the original information and
the refiling of the correct one, otherwise he would be recreant to his duties.
In the subsequent case ofTeehankee, Jr. v. Madayag, et al., however,
73

Dismissal Only After New One is Filed

councilor, admittedly a person in authority, while he was in the performance of his official
duties or on the occasion thereof, a qualification essential to the offense charged in the
information.

The second paragraph of Sec. 13 of the old Rule 110 was amended in 1985
as follows: "The court shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in accordance with Rule 110,
Sec. 11."

The converse is no less obvious, that is, the charge of direct assault upon a person in
authority with physical injuries as set out in the information necessarily included the
offense of less serious physical injuries charged in the complaint, especially because in
both the information and the complaint, the physical injuries inflicted are alleged to have
required medical assistance of a period of 14 days and incapacitated the offended party
from labor for the same period of time.

Both rules were clarified so that the dismissal of the original complaint or
information would be done only after a new one has been filed.

As proof that the offense charged in the information includes the offense charged in
the complaint, conviction of the defendants of this latter offense may, without question, be
had under the information if the other ingredients of the crime charged in said information
are not proved.

There is no double jeopardy if there is no identity of offenses.

If there is identity of offense, then the accused should be convicted of the
offense charged necessarily included in the offense proven or of the offense
proven necessarily included in the offense charged.

Hence, the defense of double jeopardy was well taken. The order of dis missal was
thus affirmed precisely on the very same constitutional ground relied upon in this petition."

SUBSTITUTION APPLIES ONLY WHERE NO JUDGMENT RENDERED

Limitation to Rule on Substitution

The amendment or the filing of a new case where there had been a mistake
in charging the proper offense after the dismissal of an existing one, spoken of
and therein provided for apply, only to an original case where no judgment has
as yet been rendered.

There are thus limitations before a new information in substitution of the

original one may be allowed:

Subject to Rule on Double Jeopardy

(a) that no judgment has as yet been rendered;

(b) the accused cannot be convicted of the offense charged or of any other
offense necessarily included therein; and
(c) the accused would not be placed in double jeopardy.

The reason is obvious and that is because the right to amend or to file a
new complaint or information charging the proper offense after the dismissal of
the original complaint or information is subject to the rule on double jeopardy.

Thus, an amendment of the information to change the crime charged from

Homicide to the more serious offense of murder after the accused had pleaded
not guilty, not allowed.

Where the original charge was that of less serious physical injuries, for
which the accused was convicted, the prosecution cannot on appeal withdraw
the case of physical injuries and file a case of direct assault.

To dismiss the homicide charged and file another charge for murder will
place the accused in double jeopardy.

Much less does the said section apply to an appealed case.

To amend the information so as to change the crime charged from

homicide to the more serious offense of murder after the petitioner had pleaded
not guilty to the former is indubitably proscribed by the first paragraph of the
above-quoted provision.

Whether the new charge for direct assault with less serious physical
injuries is by way of amendment or through a new information is, immaterial
since in both instances accused's former conviction would be a bar to a
subsequent prosecution for the second offense.

For certainly, a change from homicide to murder is not a matter of form; it

is one of substance with very serious consequence.

This was the dictum laid down in the case of People v. Bonotan, and which
doctrine was reiterated in the case of Tacas v. Cariaso. Thus:

But can the amendment be justified under the second paragraph?

"The charge of direct assault upon a person in authority with physical injuries
contained in the fiscal's information is not included in the charge contained in the
complaint of the chief of police, which is merely that of less serious physical injuries
unqualified by any allegation that those injuries were inflicted upon the offended municipal

The answer is, No.

74

For the provision speaks not of amendment but of dismissal of the

information.

original information was granted.

Duty of Judge to Render Decision

In other words, the provision contemplates the filing of a substituted not an

amended information.

Where a physical injury case has been filed before a Municipal Judge, but,
after trial, he is of the opinion that a frustrated murder was committed, he
should decide the case on the merits and not order the filing of an information in
the CFI.

But, it may be asked, can not the information for homicide against the
petitioner be dismissed since no judgment has yet been rendered and another
information for murder be filed?

It is the duty of the judge to render the decision as the evidence warrant
under the information as filed for serious physical injuries, and not dismiss the
case on his idea or belief that there was evidence of intent to kill the intended
victim.

The answer, again, is No.

For the petitioner having pleaded not guilty to homicide, to dismiss the
charge against him so as to file another charge for murder will place him thereby
in double jeopardy.

Such order is void for having been issued with grave abuse of discretion
amounting to excess of jurisdiction.

The principle does not apply where the information for homicide alleges
"using superior strength" in which case, an amendment to murder even if the
prosecution have already presented two witnesses maybe allowed as this is a
mere formal amendment.

a.

In Teehankee v. Madayag An amendment from frustrated murder to

consummated murder due to supervening event of death is merely formal.

b.

The difference in serial numbers of firearms in case of illegal possession is

fatal.

c.

In People u. Jaralba The Amendment consists of description of wound

from lacerated to stab wound to conform to the evidence. There was no
change of offense charged. No need to rearraign.

d.

An Amendment to allege that co-accused who were minors acted with

discernment is one of form as far as principal accused is concerned.

e.

In People v. Padica, amendment as to correct name is merely a matter of

form. Issue as to identity must be raised during arraignment in a demurrer
on the ground of lack of jurisdiction over his person, otherwise there is
estoppel or waiver.

The body of the information already charges the crime of murder.

NO
DOUBLE
ARRAIGNMENT

JEOPARDY

WHERE

WITHDRAWAL

MADE

BEFORE

In Galvez v. Court of Appeals (supra), the propriety of the withdrawal of the

original information for homicide before arraignment, was upheld there having
been no grave abuse of discretion in granting the motion and, more importantly,
in consideration of the fact that the motion to withdraw was filed and granted
before petitioners were arraigned, hence, before they were placed in jeopardy.
Thus, even if a substitution was made at such stage, petitioners cannot
validly claim double jeopardy, which is precisely the evil sought to be prevented
under the rule on substitution, for the simple reason that no first jeopardy had as
yet attached.
Consequently, although the offenses charged under the three new
informations necessarily include those charged under the original informations,
the substitution of informations was not a fatal error.

SEC. 15.
Place Where Action is to be Instituted.

A contrary ruling, would sacrifice substantial justice for formal nuances on

the altar of procedural technicalities.

Improper Venue
In criminal proceedings, improper venue is lack of jurisdiction.
Venue in criminal cases is an essential element of jurisdiction.
Unlike in a civil case where venue may be waived, this could not be done in

Furthermore, petitioners' right to speedy trial was never violated since the
new informations were filed immediately after the motion to withdraw the
75

a criminal case because it is an element of jurisdiction.

jurisdiction for trial

In criminal proceedings, the rule is that one can not be held to answer for
any crime committed by him except in the jurisdiction where it was committed.

Purpose of Rule
A criminal case should be instituted and tried in the municipality or
province where the offense was committed or any of its essential ingredients
took place.

Said rule is based on the legal provision which prescribes the essential
requisites of a good complaint or information, one of which is the allegation that
the crime was committed within the jurisdiction of the court where the complaint
or information is filed and that said court has authority to try it.
As was said in the case of United States v. Cunanan, the jurisdiction of the
Courts of First Instance of the Philippine Islands, in criminal cases is limited to
certain well-defined territory, so that they can not take jurisdiction of persons
charged with an offense alleged to have been committed outside of that limited
territory.

This is a fundamental principle, the purpose being not to compel the

defendant to move to, and appear in a different court from that of the province
where the crime was committed, as it would cause him great inconvenience in
looking for his witnesses and other evidence in another place."
Power to Change Venue

Judges of the court of the Court of First Instance of a district court must
exercise their jurisdiction within the territorial limits of their provinces and no
further.

Where the convenience of the accused is opposed by that of the

prosecution, it is but logical that the court should have the power to decide
where the balance of convenience or inconvenience lies, and to determine the
most suitable place of the trial according to the exigencies of truth and impartial
justice.
Under the 1987 Constitution, the Supreme Court may order a change of
venue or place or trial to avoid a miscarriage of justice.

Jurisdiction or venue is determined by the allegations in the information

which are controlling.
When Place of Crime Not Alleged

"A petition for change of venue of the preliminary investigation should

however, be addressed to the Secretary of Justice who has control and
supervision over the conduct of a preliminary investigation which is a function of
the Executive Department and not the Judiciary."

Where the place of the commission of the offense was not specifically
charged, the place may be shown by the evidence.
Thus, the insufficiency of the complaint charging adultery without stating
the place where the acts of adultery were committed, or that the accused knew
the woman was married at the time of cohabitation, assigned as error as the
conviction thereon amounted to a conviction without informing the defendants
of the nature and character of the offense, and besides equivalent to a
conviction without due process of law.

PLACES WHERE ACTION MAY BE INSTITUTED GENERAL RULE

a.

No such question having been raised before final judgment in the trial
court, but every ingredient of the crime having been established in the
evidence, there was no error committed upon which to base a reversal of
conviction.

In all criminal prosecutions the action shall be instituted and tried in the
Court of the Municipality or territory wherein the crime was committed or
where any one of the essential ingredient of the offense took place.
Thus, subject to existing laws, the commission of an offense is, triable
only in the courts of the place where the offense was allegedly committed.
If all the acts material and essential to the crime and requisite of its
consummation occurred in one municipality or province, the court of that
municipality or province has sole jurisdiction to try the case.

When the record discloses that the crime as alleged in the complaint was
not committed in the province wherein the trial was had, and the accused was
not arrested in that province and defendant had not fled therefrom, the Court of
First Instance of that province has no jurisdiction to impose sentence.

b.

In such cases, if the court has reasonable ground to believe that the crime
has been committed, the accused should be remanded to the court of proper
76

In offenses committed on a railroad train, in an aircraft, or in any other

public or private vehicle while in the course of its trip in the court of any
municipality or territory where such train, aircraft or other vehicle passed
during such trip, including the place of departure and arrival.

Where defendant was charged with attacking a postal clerk in a

moving train within the limits of Manila, it was claimed that the Court of First
Instance of Manila was without jurisdiction, but as defendant offered no
proof against such jurisdiction, the lower court was justified in taking
jurisdiction.
c.

d.

fact that said automobile was later found in Rizal City is not an essential
ingredient of the crime but a mere circumstance which could add nothing to
the nature of the offense or to its consummation.
Hence, this circumstance cannot be made determinative of the
jurisdiction of the trial court over the criminal action.

Where the crime for violation of P.D. No. 532 known as the Anti-Piracy and
Anti-Highway Robbery Law of 1974 was committed aboard a jeepney, the
criminal action may be instituted and tried in the court of any municipality
or territory where the vehicle passed during the trip including the place of
departure and arrival.

It was, however, held in a

cigarettes commenced when they
continued when the goods pushed
were seized in Quezon City, the
jurisdiction over the offense.

In offenses committed on board a vessel in the course of its voyage in the

proper court of the first port of entry or of any municipality or territory
through which the vessel passed during such voyage subject to the
generally accepted principles of the international law.

Transitory and Continuing Offenses

If all the acts material to the crime and requisite of the consumption
thereof occurred in one municipality or territory, the court therein has the sole
jurisdiction to try the case.

Where the crime was actually committed is immaterial where the crime
was committed while the vessel is in transit.

There are certain crimes in which some acts material and essential to the
crimes and requisite to their consummation occur in one municipality or territory
and some in another, in which event, the court of either has jurisdiction to try
the cases, it being understood that the court taking cognizance of the case
excludes the other.

"In transit" simply means "on the way or passage" while passing from
me place to another in the course of transportation.
In a prosecution under Act No. 55, regulating the transportation of
animals on vessels, as amended by Act No. 275, the information need not
allege that the court was sitting at a port where the animals were
disembarked.
e.

The place where the action is to be instituted is subject to existing laws

"such as offenses which fall under the exclusive jurisdiction of the
Sandiganbayan which may be instituted and tried only in the
Sandiganbayan which is located at Quezon City.

f.

In the earlier case of People v. Mercado, involving theft of large catties, it

was held that where the accused stole the carabaos in Gapan, Nueva Ecija,
and took them to Pampanga, where he was found, the crime is triable only
in Nueva Ecija and not in Pampanga.

These are the so-called transitory or continuing crimes.

In transitory or continuing offenses, some acts material and essential to the
crime occur in one province and some in another, in which case, the rule is
settled that the court of either province where any of the essential ingredients of
the crime took place has jurisdiction to try the case.
Offenses are continuing or transitory upon the theory that there is a new
commission, continuance or repetition of the offense wherever the defendant
maybe found.
Such offenses may be tried by the Court of any jurisdiction in which the
defendant may be found.

The unlawful taking of a movable thing consummates in the crime of

theft.

In such a case, the complaint should alleged that the offense was committed within the jurisdiction of the court and not at the place where it was
originally committed.
The theory is that a person may be indicted in any jurisdiction where the
offense was in part committed, it being understood that the first court taking
cognizance of the case excludes the others.

The act of carrying away the thing stolen is not an indispensable

requisite of theft.
g.

case that where the asportations of

were taken out of dark Airbase and
through Valenzuela, Bulacan until they
Courts in any of these places had

Where the offense charged was fully committed in the City of Manila where
the automobile was allegedly stolen from its parking place in Port Area the
77

In this jurisdiction, where the strict common law rules touching the finding
of indictments have no controlling influence, offenses committed partly in one
province and partly in another, that is to say, where some acts material and
essential to the crime and requisite to its consummation occur in one province
and some in another, are triable in either province, and the appropriate courts in
each province have concurrent jurisdiction of such offenses, distinguished, as to
estafa, accounts collected in one place and to be paid over to principal in Manila;
estafa committed by insurance agent, premiums collected in Iloilo but payable in
Manila; estafa committed aboard a ship in Philippine Waters.

essential to the crime and requisite to its consummation occur in one province
and some in another, the Court of either province has jurisdiction to try the case,
it being understood that the first court taking cognizance of the case will exclude
the others.
However, if all the acts material and essential to the crime and requisite of
its consummation occurred in one municipality or territory, the court of that
municipality or territory has the sole jurisdiction to try the case.

The theory upon which a person accused of a transitory or continuing

offense may be tried in any jurisdiction within which he is found is based upon
the ground that there is a new commission of the same offense in the
jurisdiction where he is found.

The rule is that crimes "committed partly in one province and partly in
another, that is to say, where some acts material and essential to the crime, and
requisites to its consummation, occur in one province and some in another, are
triable in either province.

In such a case, the complaint should allege that the offense was committed
within the jurisdiction of the court and not at the place where it was originally
committed.

This means that to make the offense triable in more than one province, the
acts perpetrated in any one of them must be impelled by the same criminal
purpose or aim.

(Defendant, as an enlisted seaman in the Bureau of Navigation, accused of

desertion in violation of Sec. 9 of Act No. 1980.)

In People v. Zapata and Bondoc, it was held that adultery is not a

continuing offense.

TRANSITORY AND CONTINUING OFFENSES DISTINGUISHED

"The notion or concept of a continuous crime has its origin in the juridical
fiction favorable to the law transgressors and in many a case, against the
interest of society."
For it to exist, there should be plurality of acts performed separately during
a period of time; unity of penal provision infringed upon or violation; and unity of
criminal intent or purpose, which means that two or more violations of the same
penal provision are united in one and the same intent leading to the
perpetration of the same criminal purpose or aim.

ESSENTIAL REQUISITES OF CONTINUOUS CRIME; ADULTERY

A transitory offense is one where any of the essential ingredients took

place, such as estafa, malversation and abduction, while a continuing offense is
one which is consummated in one place, yet by reason of the nature of the
offense, the violation of the law is deemed continuing.
Example of this, are where the deprivation of liberty is persistent and
continuing from one place to another or libel where the libelous matter is
published or circulated from one place to another.

In adultery, the last unity does not exist because the culprits perpetrate the
crime in every sexual intercourse and they need not do another or other
adulterous act to consummate it.

The term "continuing" must, however, be understood in the sense similar

to that of "transitory" and is only intended as a factor in determining the proper
venue or jurisdiction for that matter of the criminal action pursuant to Section
15, Rule 110.

IN BIGAMY, PLACE WHERE FIRST MARRIAGE WAS CELEBRATED IS

IMMATERIAL

This is so because persons charged with a transitory offense may be tried

in any jurisdiction where the offense was in part committed to the exclusion of
the other.
In other words, a person charged with a transitory crime may be validly
tried in any municipality or province where the offense was in part committed.

Bigamy being defined by Article 349 as the contracting "of a second or

subsequent marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceeding," it is self-evident that the place
where the first marriage was celebrated is immaterial to the criminal act, intent
and responsibility of the accused.

In transitory or continuing offenses in which some acts material and

What is essential is that the first marriage be not legally terminated,

78

actually or by legal presumption, when the subsequent wedlock takes place; and
it is upon the celebration of that subsequent marriage that bigamy is committed,
not before.

render accounts to his principal in Manila.

Under said contract, C collected certain moneys for his principal in
Cebu and failed to account for same to his principal in Manila.

The continued existence of the first marriage is without definite locus.

HELD: The court of Manila had jurisdiction over the offense of estafa
committed, as the contract of employment was made in Manila.

To hold with the trial court that the celebration of the first marriage was an
essential ingredient of the bigamy is to assume that when the petitioner married
his first wife, he did so with intent already to marry his second consort; and
there is nothing on record to warrant such assumption.

d.

Since the second marriage of the accused occurred in Davao outside the
territorial jurisdiction of the respondent court, and in all criminal prosecutions,
the actions must be instituted and tried in the municipality or province where
the offense or any of its essential ingredients was committed, the Court of First
Instance for the province of Iloilo is devoid of jurisdiction to take cognizance of
the crime charged.

Estafa by Issuing a Bouncing Check

The general principles governing jurisdiction in cases of estafa punishable
under Article 315, paragraph 2(d) of the Revised Penal Code have been defined
in People v. Yabut, to wit:

Venue in Estafa
a.

A bicycle was purchased by the owner of a tobacco factory in the

municipality ofObando, in the province ofBulacan, to be used by defendant,
an employee, on condition that it was to be returned to the owner of the
factory at the termination of his employment, in the municipality of Malabon,
province of Rizal.

"Estafa by postdating or issuing a bad check under Art. 315, par. 2(d) of the
Revised Penal Code may be a transitory or continuing offense.
Its basic elements of deceit and damage, may independently arise in separate
places.
In the event of such occurrence, the institution of the criminal action in either place
is legally allowed. Section 14(a), Rule 110 of the Revised Rules of Court provides: 'In all
criminal prosecutions, the action shall be instituted and tried in the court of the
municipality or province wherein the offense was committed or any one of the essential
ingredients thereof took place.

Defendant sold the bicycle to a third person who lived in the

municipality of Obando.
Defendant having failed to comply with his obligation to the owner of
the bicycle in Malabon, the crime charged against him was committed in
that municipality, and the justice of the peace in Malabon had jurisdiction to
hear and determine the case.
b.

The theory is that a person indicted with a transitory offense may be validly tried in
any jurisdiction where the offense was in part committed.

Estafa is a continuing or transitory offense which may be prosecuted at the

place where any of the essential elements of the crime took place.

However, if all the acts material and essential to the crime and requisite of its
consummation occurred in one municipality or province, such has the sole jurisdiction to
try the case."

One of the essential elements of estafa is damage or prejudice to the

offended party.

The Place of Delivery of Check

The place where the bills were written, signed, or dated does not
necessarily fix or determine the place where they were executed.

Where the respondent has its principal place of business and office in
Manila, the failure of petitioner (accused) to remit the insurance premiums
she collected caused damage and prejudice to private respondent in Manila,
the Regional Trial Court of Manila has jurisdiction.
c.

An agent who is entrusted with collecting payments on policies for an

insurance company and who collects such a payment in Iloilo and
appropriates the same to his own use there though by his contract, the
premium collected were payable at the office of the company in Manila, may
be tried for estafa in the Court of First Instance of Iloilo or of Manila.

What is of decisive importance is the delivery thereof the consummation as

an obligation.

C, entered into a contract at Manila, by virtue of which he was obligated to

An undelivered bill or note is inoperative.

79

with the beer purchases made by him on various occasion at Guiguinto, Bulacan
and which checks he handed and delivered to the sales supervisor of SMC, Mr.
Ruben Cornelio, who holds office in that municipality.

Until delivery, the contract is revocable. And the issuance as well as the
delivery of the check must be to a person who takes it as a holder, which means
"(t)he payee or indorsee of a bill or note, who is in possession of it, or the bearer
thereof."

The two checks were deposited by SMC at the BPI, San Fernando,
Pampanga, where it maintained its accounts after receiving these checks from
its Guiguinto Sales Office which bank later on made the corresponding
deductions from the account of SMC in the amounts covered by the dishonored
checks upon receiving information that the checks so issued by the accused had
been dishonored by the drawee bank at Santa Maria, Bulacan.

Delivery of the check signifies transfer of possession, whether actual or

constructive from one person to another with intent to transfer title thereto.
The venue of the offense lies at the place where the check was executed
and delivered to the payee.

A case of estafa and violation of B.P. Big. 22 was filed against the accused
in Pampanga, the accused contested the jurisdiction of the court.

Where it was in Malolos, Bulacan where the checks were uttered and
delivered to complainant at which place, her business and residence were also
located, the criminal prosecution of estafa may be lodged therein.

The Supreme Court held:

The giving of the checks by the two private respondents in Caloocan City to
a messenger and part time employee cannot be treated as valid delivery of the
checks, because a mere "messenger" or "part-time employee" is not an agent of
complainant.

"As regards the Estafa case: While the subject check was issued in Guiguinto,
Bulacan, it was not completely drawn thereat, but in San Fernando, Pampanga, where it
was uttered and delivered.
Although the check was received by the SMC Supervisor at Guiguinto, Bulacan, that
was not the delivery in contemplation of law to the payee, SMC.

The Place Where Obligation Was Constituted

Said supervisor was not the person who could take the check as a holder, that is, as
a payee or indorsee thereof, with the intent to transfer title thereto.

The place where the obligation was constituted is also a valid basis for
criminal jurisdiction to attach in a prosecution for estafa.

The issuance as well as the delivery of the check must be to a person who takes it as
a holder, which means the payee or indorsee of the bill or note, who is in pos session of it,
or the bearer thereof.

Where, the place of business of the offended party, is in Malolos, Bulacan,

from where the tire and gas purchases were made by the two private
respondents, payment thereof should be considered effected in Malolos,
Bulacan."

The element of deceit, therefore, took place in San Fernando, Pampanga, where the
check was legally issued and delivered so that jurisdiction could properly be laid upon the
court in that locality."

(I)f the undertaking is to deliver a determinate thing, the payment shall be

made wherever the thing might be at the moment the obligation was
constituted.

As Regards the Bouncing Check

The offense also appears to be continuing.

The receipt by the two private respondents at Caloocan City of the tires
and gas supplies from Malolos, Bulacan, signifies but the consummation of the
contract between the parties.

True, the offense is committed by the very fact of its performance and the
Bouncing Checks Law penalizes not only the fact of dishonor of a check but also
the act of making or drawing and issuance of a bouncing check.

It was the result of an obligation previously contracted at Malolos, Bulacan.

The case, therefore, could have been filed also in Bulacan.

Since the instant case, it was in Malolos, Bulacan, where the checks were
uttered and delivered to complainant at which place, her business and residence
were also located, the criminal prosecution of estafa may be lodged therein.

The determinative factor (in determining venue) is the place of the issuance of the check.

In a case, two checks were issued and signed by the accused in connection

But it is also true that knowledge on the part of the maker or drawer of the
80

check of the insufficiency of his funds which is an essential ingredient of the

offense is by itself a continuing eventuality, whether the accused be within one
territory or another.

satisfied.
In the crime of estafa, deceit and damage are essential elements of the
offense and have to be established with satisfactory proof to warrant conviction.
For violation of the Bouncing Checks Law, on the other hand, the elements
of deceit and damage are neither essential nor required.

Hence, jurisdiction to take cognizance of the offense also lies in the ETC of
Pampanga.
KNOWLEDGE BY DRAWER OF INSUFFICIENCY AND
ESSENTIAL ELEMENTS FOR VIOLATION OF B.P. BIG. 22

DISHONOR

AS

Rather, the elements ofB.P. Big. 22 are:

(a) the making, drawing and issuance of any check to apply to account or
for value;

The gravamen of the offense is knowingly issuing a worthless check.

Thus, a fundamental element is knowledge on the part of the drawer of the
insufficiency of funds or credit with the drawee bank for the payment of such
check in full upon presentment.

(b) the maker, drawer or issuer knows at the time of issuance that he does
not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment; and

Another essential element is subsequent dishonor of the check by the

drawee bank for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason, ordered the
bank to stop payment.

(c) the check is subsequently dishonored by the drawee bank for

insufficiency of funds or credit or would have been dishonored for the
same reason had not the drawer, without valid reason, ordered the bank
to stop payment.

Violation of B.P. Big. 22 is a transitory offense. Knowledge on the part of the

maker or drawer of the check of the insufficiency of his funds is by itself a
continuing eventuality, whether the accused be within one territory or another.

Hence, it is incorrect for respondent People to conclude that inasmuch as

the Regional Trial Court of Manila acquired jurisdiction over the estafa case then
it also acquired jurisdiction over the violations ofB.P. Big. 22.

Consequently, venue or jurisdiction lies either in Malabon where the checks

were delivered or in Kalookan where they were dishonored.

The crime of estafa and the violation of B.P. Big. 22 have to be treated as
separate offenses and therefore the essential ingredients of each offense have
to be established.

The court, however, clarified that knowledge by the maker or drawer of the
fact that he has no sufficient funds to cover the check or of having sufficient
funds is simultaneous to the issuance of the instrument.

Thus, where the records clearly indicate that business dealings were
conducted in a restaurant in Manila where sums of money were given to
petitioner, the lower court acquired jurisdiction over the estafa case.

Where there is no evidence to show that at the time of issue, accused was
in Manila, there would be no basis in upholding jurisdiction of the Manila Trial
Court over the offense for violation of B.P. Big. 22.

The various charges for violation of B.P. Big. 22, however, are on a different
plain.

THE CRIME OF ESTAFA AND VIOLATION OF B.P. BIG. 22 HAVE TO BE

TREATED AS SEPARATE OFFENSES HAVING DIFFERENT ELEMENTS

There is no scintilla of evidence to show that jurisdiction over the violation

ofB.P. Big. 22 had been acquired.

The mere fact that the court has jurisdiction over an estafa case does not
necessarily mean it has jurisdiction over the bouncing checks case or violation of
B.P. Big. 22 involving the same check.

On the contrary, all that the evidence shows is that complainant is a

resident of Makati; that petitioner is a resident of Caloocan City; that the
principal place of business of the alleged partnership is located in Malabon; that
the drawee bank is likewise located in Malabon and that all the subject checks
were deposited for collection in Makati.

The crime of estafa and violation of B.P. Big. 22 have to be treated as

separate offenses having different elements and, necessarily for a court to
acquire jurisdiction each of the essential ingredients of each crime has to be

Verily, no proof has been offered that the checks were issued, delivered,
81

dishonored or knowledge of insufficiency of funds occurred in Manila, which are

esssential elements necessary for the Manila Court to acquire jurisdiction over
the offense for violation of B.P. Big. 22.

The fact that the Court of First Instance of Manila took jurisdiction of the
estafa because the place of its commission was not clearly shown, is not an
obstacle to the court declaring itself without jurisdiction as soon as the lack of
jurisdiction appeared.

Abduction
Jurisdiction over criminal cases cannot be conferred by consent.
Abduction is a persistent and continuing offense.
Falsification of Private Document
Hence, it may be tried in the court of municipality or province wherein the
offense was committed or anywhere one of the essential ingredients thereof
took place.

The crime of falsification of a private document is consummated at the

time and place where the document is falsified, whether the document is or is
not thereafter put to the improper or illegal use for which it was intended.

The girl being taken with her consent from Manila to Pasig, Rizal Province,
both the judges of the Court of First Instance of Manila and of Rizal have
jurisdiction and are competent to take cognizance of the crime of abduction.

Crime Within City Limits

In a case, defendant was fould guilty of homicide. Counsel for defense contended
that the Court of First Instance of Manila, in which the case was heard, had no jurisdiction
as the offense was committed outside the city limits.

It is true that the abduction was commenced in Manila, but it may well be
said that it was consummated in Pasig.

Held: As the crime was committed within two and a half miles of the city limits, the
court had the necessary jurisdiction.

Kidnapping

The Court of First Instance of Manila has jurisdiction over a crime of robbery
committed upon a steamboat in the Bay of Manila at a point two and a half miles
beyond the city limits.

Where an information charges the offense of kidnapping for ransom with

murder, the victim was kidnapped within Lucena City and at that very moment,
the intention becomes evident that the accused wanted to detain him for
ransom, the Court thereat has jurisdiction to try the case of murder filed against
the accused, although the killing was committed outside the city limits.

Perjury
The lower court oflloilo found that the crime charged (perjury) in the
information was completed in Manila, inasmuch as the affidavit upon which the
charge of perjury rested was subscribed and sworn to before a notary in the city,
and sustained a demurrer, dismissing the case on ground of lack of jurisdiction.

Where persons are kidnapped and detained in Bulacan, then taken to

Nueva Ecija, defendants may be tried and punished in Bulacan, where the crime
was commenced and consummated, though continued elsewhere.
Kidnapping with serious illegal detention is a continuing crime where the
deprivation of liberty is persistent and continuing from one place to another.

It is immaterial where the affidavit was subscribed and sworn, so long as it

appears from the information that defendant, by means of such affidavit, swore
to and knowingly submitted false evidence, material to a point at issue in a
judicial proceeding pending in the Court of First Instance of Iloilo province.

Estafa by Railroad Conductor

Where a railroad conductor collects one peso and twenty-two centavos
from a passenger and issues a false ticket for a shorter journey for which the
charge is eighteen centavos, the estafa is committed where his account was
rendered and the stub of the false ticket was turned in.

The gist of the offense charged is not the making of the affidavit in Manila,
but the intention to give false evidence in Iloilo, by means of such affidavit.

Under Article 29 of the General Compilation of Laws upon Criminal

Procedure, jurisdiction is vested in the court, where accused made use of the
document (stub of the ticket) alleged to be false.

The rules on venue on libel in Article 360 of the Revised Penal Code as
amended by R.A. No. 1289 and RJL No. 4363 may be stated thus:

Libel

a.
82

Whether the offended party is a public official or a private person, the

criminal action may be filed in the Regional Trial Court of the province or city
where the libelous article is printed and first published.
b.

If the offended party is a private individual, the criminal action may also be
filed in the Regional Trial Court of the province where he actually resided at
the time of the commission of the offense.

c.

If the offended party is a public officer whose office is in Manila at the time
of the commission of the offense, the action may be filed in the Regional
Trial Court of Manila.

d.

If the offended party is a public officer holding office outside of Manila, the
action may be filed in the Court of First Instance of the province or city
where he held office at the time of the commission of the offense.

In certain cases, the comity of nations is observed.

Whether the courts of the Philippines have jurisdiction over a crime (such
as smoking of opium within our territorial limits) committed aboard foreign
merchant vessels anchored in jurisdictional waters the court stated in certain
cases, the comity of nations is observed, as in Mali u. Keeper of the Common
Jail, wherein it was said that disorders which disturb only the peace of the ship or
those on board are to be dealt with exclusively by the sovereignty of the home
of the ship, but those which disturb the public may be suppressed and the
offenders punished by proper authorities of the local jurisdiction.
It may not be easy at all times to discover to which of the two jurisdictions
a particular act of disorder belongs.
Much will depend upon the attending circumstances of the particular case,
but all must concede that a felonious homicide is a subject for local jurisdiction;
and if the authorities are proceeding with the case in the regular way the consul
has no right to interfere with it.

For the guidance, of both the bench and the bar, the Court finds it
appropriate to reiterate its earlier pronouncement in the case of Agbayani, to
wit:
In order to obviate controversies as to the venue of the criminal action for
written defamation, the complaint or information should contain allegations as
to whether, at the time the offense was committed, the offended party was a
public officer or a private individual and where he was actually residing at that
time.

The offense of failing to provide suitable means for securing animals while
transporting them on a ship from a foreign port to a port in the Philippine
Islands, is within the jurisdiction of the courts of the Philippines when the
forbidden conditions existed during the time the ship was within territorial
waters, regardless of the fact that the same conditions existed when the ship
sailed from the foreign port and while it was on the high seas.

Whenever possible, the place where the written defamation was printed and first
published should likewise be alleged.

Although the mere possession of a thing of prohibited use in these islands,

aboard a foreign vessel in transit, in any of their ports, does not, as a general
rule, constitute, a crime triable by the courts of this country, on account of such
vessel being considered as an extension of its own nationality, the same rule
does not apply when the article, the use of which is prohibited within the
Philippine Islands, is landed from the vessel upon Philippine soil.

That allegation would be a sine qua non if the circumstance as to where the libel was
printed and first published is used as the basis of the venue of the action.

CRIMES ON BOARD FOREIGN MERCHANT SHIPS WITHIN TERRITORIAL

LIMITS

In the present case, a can of opium was landed, thus constituting an open
violation of the laws of the land, with respect to which, as it is a violation of the
penal law in force at the place of the commission of the crime, only the court
established in the said place itself has competent jurisdiction, in the absence of
an agreement under an international treaty.

There are two fundamental rules in International Law regarding jurisdiction

to punish crimes committed abroad foreign merchant vessels:
The French rule, according to which such crimes should not be prosecuted
in the court of the country within which they are committed, unless their
commission affects the peace and security of the territory; and
The English rule, based on the territorial principle, followed by the United
States, according to which such crimes are in general triable in the courts of the
country within whose territory they are committed.

When the exact place where the crime was committed is unknown and the
strong presumption arises at the trial that it was committed on board a ship
navigating within the waters included in the territory of this Archipelago, the
court competent to try such a crime is that of the district and province at one of
whose ports the ship or vessel arrives.

Of these two rules, the last one obtains in this jurisdiction, as the
Philippines was then a territory of the United States.

CRIMES COMMITTED OUTSIDE OF THE PHILIPPINES PUNISHABLE UNDER

83

ARTICLE 2 OF THE REVISED PENAL CODE

shall be conducted within the premises of the National Penitentiary.

ART. 2. Application of its provisions. Except as provided in the treaties and laws of
preferential application, the provisions of this Code shall be enforced not only within the
Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but
also outside of its jurisdiction, against those who:

SEC. 16.
Intervention of the Offended Party in Criminal Action
Intervention of Offended Party

a. Should commit an offense while on a Philippine ship or airship;

Explaining the scope of the Rule and the meaning of offended party, the
Court stated that under Section 5, Rule 110 of the Rules, all criminal actions
covered by a complaint or information shall be prosecuted under the direct
supervision and control of the public prosecutor.

b. Should forge or counterfeit any coin or currency note of the Philippine Islands or
obligations and securities issued by the Government of the Philippine Islands;
c. Should be liable for acts connected with the introduction into these islands of the
obligations and securities mentioned in the preceding number;

Thus, even if the felonies or delictual acts of the accused result in damage
or injury to another, the civil action for the recovery of civil liability based on the
said criminal acts is impliedly instituted and the offended party has not waived
the civil action, reserved the right to institute it separately or instituted the civil
action prior to the criminal action, the prosecution of the action inclusive of the
civil action remains under the control and supervision of the public prosecutor.

d.
While being public officers or employees, should commit an offense in the
exercise of their functions; or
e.
Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of this Code.

While under Sec. 15(d) "other crimes committed outside of the Philippines
but punishable therein under article 2 of the Revised Penal Code shall be
cognizable by the proper court in which the charge is first filed."

The prosecution of offenses is a public function.

Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended
party may intervene in the criminal action personally or by counsel, who will act
as private prosecutor for the protection of his interests and in the interest of the
speedy and inexpensive administration of justice.

Where the crime is committed by a public officer in relation to his office

and is classified as Grade 27 and higher, jurisdiction is with the Sandiganbayan.
WHEN PROCEEDINGS ARE CONDUCTED WITHIN THE PREMISES OF THE
PENAL INSTITUTION

A separate action for the purpose would only prove to be costly,

burdensome and time-consuming for both parties and further delay the final
disposition of the case.

A sister of detention prisoner Mario, accused in a criminal case for robbery

with homicide requested the transfer of the case from the Regional Trial Court at
Calamba, Laguna to the original court, the Regional Trial Court of Quezon City.
Mario is a life termer and had been ordered committed to the National Bureau of
Prisons in Muntinlupa.

The multiplicity of suits must be avoided.

With the implied institution of the civil action in the criminal action, the two
actions are merged into one composite proceeding, with the criminal action
predominating the civil.

Pursuant to Administrative Circular No. 2, dated December 2, 1976, and

Administrative Circular No. 6, dated December 5, 1977, he cannot be brought
out of the penitentiary for appearance or attendance in other criminal cases in
any court without authority from the Supreme Court.

The prime purpose of the criminal action is to punish the offender in order
to deter him and others from committing the same or similar offense, to isolate
him from society, reform and rehabilitate him or, in general, to maintain social
order.

Said circulars also provide that judges in Metro Manila who shall require the
appearance or attendance of such prisoners as witness or as accused before
their respective courts shall conduct such proceedings within the premises of the
penal institution.

On the other hand, the sole purpose of the civil action is for the resolution,
reparation or indemnification of the private offended party ror the damage or
injury he sustained by reason of the delictual or felonious act of the accused.

The Court resolved to grant Ms. Llanto's request but the trial of the case
84

Under Article 104 of the Revised Penal Code, the following are the civil
liabilities of the accused:

Offended Parties in Illegal Practice of Medicine

In an information for illegal practice of medicine a private prosecutor was
allowed to intervene.

ART. 104. What is included in civil liability. The civil liability established in Articles
100, 101, 102 and 103 of this Code includes:
1.
2.
3.

All the witnesses who testified before the fiscal are offended parties it
appearing that the offense alleged in the information belongs to the class of
harmful ones.

Restitution;
Reparation of the damage caused;
Indemnification for consequential damages.

If there are offended parties, petitioner's contention that no damages are

to be recovered in the criminal action must be untenable.

When the offended party, through counsel, has asserted his right to
intervene in the proceedings, it is error to consider his appearance merely as a
matter of tolerance.

The public function of prosecuting offenses can be performed not exclusively by fiscals or other public officers, but by private attorneys in cases where
they are allowed to intervene as private prosecutors.

From Sections 5 and 16 of Rule 110, it can clearly be inferred that while
criminal actions as a rule are prosecuted under the direction and control of the
fiscal, however, an offended party may intervene in the proceeding, personally
or by attorney, especially in cases of offenses which cannot be prosecuted
except at the instance of the offended party.
The only exception to this rule is when the offended party waives his right
to civil action or expressly reserves his right to institute it, in which case, he
loses his right to intervene upon the theory that he is deemed to have lost his
interest in its prosecution.
And, in any event, whenever an offended party intervenes in the prosecution of a criminal action, his intervention must always be subject to the
direction and control of the prosecuting official.

After all, in the performance of their professional duties, lawyers are

officers of the court and assume public and official responsibilities.
OFFENDED PARTIES FOR VIOLATION
FALSIFICATION OF PUBLIC DOCUMENTS

OF

ANTI-GRAFT

LAW

AND

The offended party may be the State or any of its instrumentalities,

including local governments or government-owned or controlled corporations
which, under substantive laws, are entitled to restitution of their properties or
funds, reparation, or indemnification.

Even in cases which do not involve any civil liability, an offended party may
appear not only as a matter of tolerance on the part of the court.

For instance, in malversation of public funds or property under Article 217

of the Revised Penal Code, frauds under Article 213 of the Revised Penal Code,
and violations of the Forestry Code of the Philippines, P.D. No. 705, as amended,
to mention a few, the government is the offended party entitled to the civil
liabilities of the accused.

In this respect, the law makes no distinction between cases that are public
in nature and those that can only be prosecuted at the instance of the offended
party.

For violations of Section 3(e) of Rep. Act No. 3019, any party, including the
government, may be the offended party if such party sustains undue injury
caused by the delictual acts of the accused.

The Right to Notice of Offended Party

In either case, the law gives the offended party the right to intervene,
personally or by counsel, and he is deprived of such right only when he waives
the civil action or reserves his right to institute one.

In such cases, the government is to be represented by the public pros ecutor for the recovery of the civil liability of the accused.

Where the private prosecution has asserted its right to intervene in the
proceedings, it is error to consider the appearance of counsel merely as a matter
of tolerance.
The offended party is entitled to be notified and heard on motions filed in
the criminal proceedings especially when there is a conflict in the positions
between the public prosecutor and of the offended party.

Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the
offended party may also be a private individual whose person, right, house,
liberty or property was actually or directly injured by the same punishable act or
omission of the accused, or that corporate entity which is damaged or injured by
the delictual acts complained of.

85

Such party must be one who has a legal right; a substantial interest in the
subject matter of the action as will entitle him to recourse under the substantive
law, to recourse if the evidence is sufficient or that he has the legal right to the
demand and the accused will be protected by the satisfaction of his civil liabilities.
Such interest
inconsequential.

must

not

be

mere

expectancy,

subordinate

institute, but also when he has actually instituted the civil action arising from the
offense.
For by either of such actions his interest in the criminal case has
disappeared.

or
The Right to File Motion for Revival

The interest of the party must be personal; and not one based on a desire
to vindicate the constitutional right of some third and unrelated party.

It was earlier held in a case for illegal possession of firearms and violation
of the Dangerous Drugs Law that: "It is axiomatic that the prosecution of a
criminal case is the responsibility of the government prosecutor and must
always be under his control.

In the felony of falsification of public document, the existence of any

prejudice caused to third person or the intent to cause damage, at the very
least, becomes immaterial.

This is true even if a private prosecutor is allowed to assist him and

actually handles the examination of the witnesses and the introduction of other
evidence.

The controlling consideration is the public character of a document and the

violation of the public faith and the destruction of truth therein solemnly
proclaimed.

The witnesses, even if they are the complaining witnesses, cannot act for
the prosecutor in the handling of the case.

The offender does not, in any way, have civil liability to a third person.
WHEN MAY THE OFFENDED PARTY LOSE HIS RIGHT TO INTERVENE IN
THE PROSECUTION OF THE CASE

Although they may ask for the filing of the case, they have no personality
to move for its dismissal or revival as they are not even parties thereto nor do
they represent the parties to the action.

An offended party loses right to intervene in the prosecution of a criminal

case, when he has waived the civil action or expressly reserved his right to
institute the civil action arising from the offense.

Their only function is to testify.

In a criminal prosecution, the plaintiff is represented by the government
prosecutor, or one acting under his authority, and by no one else."

The reason of the law in not permitting the offended party to intervene in
the prosecution of the offense if he has waived or reserved his right to institute
the civil action is that by such action his interest in the criminal case has
disappeared.

It follows that a motion for revival of the cases filed by prosecution

witnesses (who never even testified) should have been summarily dismissed by
the trial judge.

Its prosecution becomes the sole function of the public prosecutor.

The mere fact that the government prosecutor was furnished a copy of the
motion and he did not interpose any objection was not enough to justify the
action of these witnesses.

Reservation of right of civil damages; offended party losses right to

intervene. Where the offended party in a criminal case has expressly reserved
his right to present an independent civil action for damages arising from the
offense charged, he loses his right to intervene in the prosecution of the criminal
case.

The prosecutor should have initiated the motion himself if he thought it

proper.

Filing of Separate Civil Action

The presumption that he approved of the motion is not enough, especially

since we are dealing here with the liberty of a person who had a right at least to
be notified of the move to prosecute him again.

Undoubtedly, an offended party loses his right to intervene in the

prosecution of a criminal case, not only when he has waived his right to
86

The fact that he was not so informed made the irregularity even more
serious."

the Civil Code of the Philippines arising from the same act or omission are
deemed impliedly instituted with the criminal action unless the offended
party waives the civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.

It was, however, held that the offended party has the right to file a motion
for reconsideration of the order considering the information against petitioner as
withdrawn even without the conformity of the public prosecutor or to file motion
for reconsideration of a decision of the Supreme Court enjoining a criminal
prosecution.

Under the present rule, only the civil liability arising from the offense
charged is deemed instituted with the criminal unless the offended party
waives the civil action reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.

Legal Personality of Offended Party

b.
While it is the SolGen that may bring or defend actions on behalf of the
Republic of the Philippines or represent the people or the state in criminal
proceedings pending before the Supreme Court or Court of Appeals, the private
offended party retains the right to bring a special civil action for certiorari in his
own name in criminal proceedings before the court of law.

Under the former rule a waiver of any of three civil actions extinguishes the
others.
The institution of, or the reservation of the right to file, any of said civil
actions separately waives the others.
This is no longer provided for.

It follows that the offended party has legal personality to file a motion for
reconsideration of an order of dismissal.
The case was distinguished from Caes v. Intermediate Appellate Court,
which is a violation of the dangerous drugs law where there is no immediate and
direct offended party.

The reservation and waiver referred to refers only to the civil action for
the recovery of civil liability arising from the offense charged.
This does not include recovery of civil liability under Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines arising from the same act or
omission which may be prosecuted separately even without a reservation.

Moreover, if the court, independently of the appeal of the accused, has

jurisdiction, within fifteen days from the date of the judgment, to allow the
appeal of the offended party, it also has jurisdiction to pass upon the motion for
reconsideration filed by the private prosecution in connection with the civil
liability of the accused.

c.

The rulings in Shafer v. Judge, RTC of Olongapo City, allowing a third-party

complaint, and the ruling in Javier v. Intermediate Appellate Court, as well as
Cabaero v. Cantos allowing a counterclaim are no longer in force.
Under the Revised Rules on Criminal Procedure, these pleadings are no
longer allowed.
Any claim which could have been the subject thereof may be litigated
in a separate civil action.

RULE 111
PROSECUTION OF CIVIL ACTION

Thus, a court trying a criminal case cannot award damages in favor of

the accused.

SECTION 1.
Institution of criminal and civil actions

The task of the trial court is limited to determining the guilt of the
accused and if proper, to determine his civil liability.

Changes in the Rule at a Glance

a.

A criminal case is not the proper proceedings to determine the private

complainant's civil liability.

The rule changes the 1985 rule as amended in 1988.

d.

Under the 1985 Rule, the action for recovery of civil liability arising
from crime including the civil liability under Articles 32, 33, 34 and 2176 of
87

The rule also incorporated Circular 57-97 on the filing of actions for violation
of Batas Pambansa Big. 22 mandating the inclusion of the corresponding

civil action for which the filing fee shall be paid based on the amount of the
check involved.

The distinct nature of the dual concept of the civil liability was stressed
in Diana v. Batangas Transportation Co., citing the earlier case of Barredo v.
Garcia, in the following words:

In other cases, no filing fees shall be required for actual damages.

History of Amendment

"These two cases involve two different remedies.

As the Court aptly said: A quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code, with a substantivity all its own, and individuality that
is entirely apart and independent from a delict or crime.

No other rule in criminal procedure have been as hotly debated upon as

the rule on prosecutions of civil actions. The rule have been amended four
times.
a.

A distinction exists between the civil liability arising from a crime and the responsibility for quasi-delict or culpa extra-contractual.

Juridical Basis of the Principle of Implied Institution of the Civil Action with
the Criminal Action

The same negligent act causing damages may produce civil liability arising from
a crime under Article 100 of the Revised Penal Code, or create an action for quasidelict or culpa-contractual under Articles 1902-1910 of the Civil Code."

Dual Concept of Civil Liability

Under Article 1157 of the Civil Code of the Philippines, obligations may
arise, inter alia, from acts or omissions punished by law (ex-delicto) and
from quasi-delict.

The other differences pointed out between crimes and culpa aquiliana
are:
1)

That crimes affect public interest, while quasi-delicts are only of private
concern;

2)

Article 100 of the Revised Penal Code provides that every person
criminally liable shall also be civilly liable (ex-delicto) while Article 2176 of
the Civil Code provides that "whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage
done.

That consequently, the Penal Code punishes or corrects the criminal act,
while the Civil Code by means of indemnification merely repairs the
damage;

3)

That delicts are not as broad as quasi-delicts, because the former are
punished only if there is a penal law clearly covering them, while the
latter, quasi-delicts, include all acts in which any kind of fault or
negligence intervenes.

Such fault or negligence, if there is no pre-existing contractual relation

between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter."

The plain inference is that the civil liability based on delict springs out
of and is dependent upon facts which, if true, would constitute a crime.

Civil obligations arising from the criminal offenses shall be governed by

the penal laws, subject to the provisions of Article 2177, and of the pertinent
provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title
XVIII on Human Relations, regulating damages.4

Such civil liability is a necessary consequence of criminal responsibility,

and is to be declared and enforced in the criminal proceeding except where
the injured party reserves his right to avail himself of it in a distinct civil
action.

The Code expressly provides that responsibility for the fault or

negligence for quasi-delict is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code, subject only to the
limitation that the plaintiff cannot recover damages twice for the same act
or omission of the defendant.

b. Modes of Enforcement

Briefly stated, the negligent act causing damages may produce two
kinds of civil liability on the part of the offender, that is, civil liability arising
from the crime under Article 100 of the Revised Penal Code, or create an
action for quasi-delict or culpa extra-contractual under Articles 1902-1910 of
the Civil Code.

The dual concept of civil liability, ex-delicto and quasi-delicto, has thus
brought about a dual mode of enforcement.
The same act or omission which gives rise to two separate and distinct
sources of civil liability may be prosecuted separately and independently of
88

each other, subject only to the limitation that the satisfaction of either bars
recovery of the other, on the principle that plaintiff cannot recover twice for
the same act or omission.

d. Early Rulings
In the early stages of criminal procedure, the policy was to strictly
adhere to the distinct and discrete nature of the criminal from purely civil
actions, and the civil liability that is sought to be enforced thereunder.

Otherwise stated, civil liability, although arising from the same act or
omission, may not only be prosecuted either in a criminal or civil action, but
in a criminal and civil action.

What is deemed impliedly instituted and governed by the rules on

criminal procedure, unless reserved, was only the civil liability arising from
the crime, while civil liability based on other sources of obligation such as
quasi-delict may be enforced only in a purely civil action.

The procedural enforcement of these distinct civil liabilities, albeit

based on the same act or omission, are likewise separate and distinct,
subject only to the caveat under Article 2177 of the Civil Code that the
offended party cannot recover damages under both types of civil liabilities.
c.

While the criminal action may have a dual purpose, namely, the
punishment of the offender and indemnity to the offended party, its
dominant and primordial objective is the punishment of the offender.

Civil Liability Based on Crime

The civil liability based on a crime, unless reserved, is gener ally
enforced in the criminal action, and was governed by the Rules on Criminal
Procedure, more particularly Rule 111 on the prosecution of civil actions,
which provides that when a criminal action is instituted the civil action for
recovery of civil liability arising from the offense charged is impliedly
instituted with the criminal action, unless the offended party expressly
waives the civil action or reserves his right to institute it separately.

The civil action is merely incident and consequent to the conviction of

the accused, which may even be waived or the prosecution thereof reserved
in a separate civil action.
This is because criminal actions are primarily intended to vindicate an
outrage against the sovereignty of the State, and to impose the
corresponding penalty for the vindication of the disturbance to the social
order caused by the offender; the action between the private person and the
accused is intended solely to indemnify the former.

Civil liability under Article 2176 was then enforced separately by

means of a civil action and is governed by the Rules on civil actions.

Thus, where the accused is acquitted in the criminal case, the interest
of the State ends, and no civil liability arising from the crime charged could
be imposed upon him.

Consequently, when a criminal action is filed, what was deemed

impliedly instituted thereunder was only the civil liability arising from or
based on the crime.

What the private offended party should do is to file a separate civil

action.

Thus, the accused may be held civilly liable in the criminal action, if he
is found to be criminally liable.
If the accused is acquitted, he cannot be held civilly liable in the criminal action.
e.
The obvious reason, as stated in People u. Amistad is that the civil
liability recoverable in the criminal action is one solely dependent upon
conviction, because said liability arises from the offense, since what was
deemed impliedly instituted, unless reserved, was the civil action for
recovery of civil liability arising from the offense charged, and no other.

Original Rule, The 1940 Rules of Court

The Rule was originally governed by Rule 107 of the 1940 Rules of
Court which then provided that:
"When a criminal action is instituted the civil action for recovery of civil liability arising
from the offense charged is impliedly instituted with the criminal action, unless the
offended party expressly waives the civil action or reserves his right to institute it
separately. Thus, what was deemed impliedly instituted unless there is a waiver or
reservation is the civil liability arising from the crime."

This is also the civil liability that is deemed extinguished with the
extinction of the penal even with a pronouncement that the fact from which
the civil action might proceed does not exist."
f.
89

The Independent Civil Actions

four amendments of the Rule.

In 1949, the (new) Civil Code of the Philippines introduced the so-called
independent civil actions.

The minutes of the proceedings from the Fernan to the Davide, Jr.,
committee disclose the heat of the debate and the numerous sessions not
only of the Committee but also by the Court en bane.

These are Articles 32, 33, and 34.

These articles allow the injured party to file a civil action for damages
in the cases mentioned therein which may also constitute criminal offenses
entirely separate and distinct from the criminal action.

By no means can it be said that the issue had been finally laid to rest.
If the Revised Rule on Criminal Procedure have been delayed, it is
because of Rule 111. It took the court several sessions before the present
rule was reluctantly adopted, which ended with a rule similar to the 1940
Rules of Court, prior to the four amendments.

Such civil action may proceed independently of the criminal action and
shall require only a preponderance of evidence.
This has raised the question of whether or not a reservation to file a
separate civil action for the cases mentioned therein is necessary for the
exercise of such right.

g. The Amendments
1)

The Supreme Court flip-flopped from one extreme to the other.

First Amendment
In view of the provisions of the new Civil Code on the so-called
independent civil actions, the rule was amended in 1964 by adding a
new section, viz.

One school of thought is of the considered view that the provisions of

the Civil Code are substantive in nature which may be exercised by the
injured party even without any reservation.

The reservation requirement for Other Civil Actions:

A contrary rule is unconstitutional.

SEC. 2. Independent civil action. In the cases provided for in Articles 31, 32, 33,
34 and 2177 of the Civil Code of the Philippines, an independent civil action
entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is
reserved as required in the preceding section. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a
preponderance of evidence.

Thus, the criminal action as well as the civil action for the recovery of
the civil liability arising from a crime may proceed simultaneously and independently of the other, without any reservation subject only to the limitation
that, the injured party cannot recover twice for the same act or omission as
provided for in Article 2177 of the Civil Code.

SEC. 3. Other civil actions arising from offenses. In all cases not included in the
preceding section the following rules shall be observed,

The other school of thought is of the view that the provisions of the
new Civil Code or the exercise of the right granted under the Civil Code is
merely procedural which may be regulated under the Rule-making power of
the Supreme Court.

a.

To simplify the proceedings and avoid conflicting decisions, all civil

actions for the recovery of damages arising from the same act or omission
should only be litigated in one proceeding.
The injured party must have to elect whether he chooses to prosecute
his claim in the criminal action or in a separate civil action either by a timely
reservation or the filing of the civil action prior to the institution of the
criminal action.
The gravity and complexity of the question is best exemplified by the
90

Criminal and civil actions arising from the same offense may be
instituted separately, but after the criminal action has been commenced
the civil action can not be instituted until final judgment has been
rendered in the criminal action;
b.

After a criminal action has been commenced, no civil action arising

from the same offense can be prosecuted, and the same shall be
suspended, in whatever stage it may be found, until final judgment
in the criminal proceeding has been rendered;

c.

Extinction of the penal action does not carry with it extinction of the
civil, unless the extinction proceeds from a declaration in a final
judgment that the fact from which the civil might arise did not exist.

Such civil action shall proceed independently of the criminal prosecution

and shall require only a preponderance of evidence."

In other cases, the person entitled to the civil action may

institute it in the jurisdiction and in the manner provided by law
against the person who may be liable for restitution of the thing and
reparation or indemnity for the damage suffered.

Under the 1985 amendment, what is deemed impliedly instituted with

the criminal action unless there is a reservation or a prior civil action
filed is the civil action for the recovery of the civil liability arising from
the offense charged.

The Supreme Court, however, declared Section 2 as inoperative. Thus, in

Mendoza v. Arrieta, quoting from Garcia v. Florida, that:

This is the civil action that may be reserved in the criminal action. The
1985 amendment did not live very long.

"* * * the same negligent act causing damages may produce a civil liability arising
from crime or create an action for quasi-delict or culpa extra-contractual.

3.

The former is a violation of the criminal law, while the latter is a distinct and independent negligence, having always had its own foundation and individuality.

In 1988, Rule 111 was amended for the third time.

Some legal writers are of the view that in accordance with Article 31, the civil
action based upon quasi-delict may proceed independently of the criminal
proceeding for criminal negligence and regardless of the result of the latter.

It actually restored the 1964 amendment.

The rule further clarified the civil actions that are deemed impliedly
instituted is not confined to civil actions arising from a crime but also
the civil actions to recover civil liability under Articles 32, 33, 34 and
2176 of the Civil Code arising from the same act or omission of the
accused unless the offended party waives the civil action, reserves his
right to institute it separately, or institutes the civil action prior to the
criminal action.

Hence; the proviso in Section 2 of Rule 111 with reference to x x x Arti cles 32, 33
and 34 of the Civil Code is contrary to the letter and spirit of the said articles, for
these articles were drafted x x a and are intended to constitute as exceptions to
the general rule stated in what is now Section 1 of Rule 111.
The prouiso, which is procedural, may also be regarded as an unauthorized
amendment of substantive law, Articles 32,33 and 34 of the Civil Code, which do
not provide for the reservation required in the proviso. x x x"

Explaining the amendment, Justice Jose Y. Feria, then a member and

later chairman of the Revision of Rules of Court Committee elucidated:

In his concurring opinion in the above case, Mr. Justice Antonio Barredo
further observed that inasmuch as Articles 2176 and 2177 of the Civil
Code create a civil liability distinct and different from the civil action
arising from the offense of negligence under the Revised Penal Code, no
reservation, therefore, need be made in the criminal case; that Section 2
of Rule 111 is inoperative, "it being substantive in character and is not
within the power of the Supreme Court to promulgate; and even if it
were not substantive but adjective, it cannot stand because of its
inconsistency with Article 2177, an enactment of the legislature
superseding the Rules of 1940."
2.

Third Amendment

"The 1988 amendment expands the scope of the civil action which is deemed
impliedly instituted with the criminal action unless waived, reserved or previously
instituted x x x.

Such a civil action includes not only recovery of indemnity under the
Revised Penal Code and damages under Articles 32, 33, 34 of the Civil
Code of the Philippines, but also damages under Article 2176 of the said
code. x x x"

Second Amendment

Objections were raised to the inclusions in this Rule of quasi-delicts

under Article 2176 of the Civil Code of the Philippines.

Accordingly, the 1985 Rules on Criminal Procedure did away with the
need for RESERVATION in cases provided for in Articles 32, 33 and 34 of
the Civil Code of the Philippines and instead recognized that "an
independent civil action entirely separate and distinct from the criminal
action, may be brought by the injured party during the pendency of the
criminal case.

However, in view of Article 2177 of the said code which provides that the
offended party may not recover twice for the same act or omission of
the accused, and in line with the policy of avoiding multiplicity of suits,
these objections were overruled.
In any event, the offended party was not precluded from filing a civil
action to recover damages arising from quasi-delict before the
91

institution of the criminal action, or from reserving his right to file such a
separate civil action, just as he is not precluded from filing a civil action
for damages under Articles 32, 33 and 34 before the institution of the
criminal action, or from reserving his right to file such a separate civil
action.

The purpose of the Committee was to limit the civil liability to be

instituted with the criminal action to that of the accused and not the
employer.
The court, however, went further by limiting the civil liability that is
deemed instituted with the criminal only to the civil liability arising from
the offense charged.

It is only in those cases where the offended party has not previously filed
a civil action or has not reserved his right to file a separate civil action
that his action is deemed impliedly instituted with the criminal action.
While it was ruled in Abella u. Marave,u that a reservation of the right to
file an independent civil action is not necessary, such a reservation is
necessary under the 1988 amendment.

All decisions to the contrary are no longer controlling. The independent

civil actions under Articles 32, 33, 34 and 2176 are no longer deemed or
impliedly instituted with the criminal action or considered as waived
even if there is no reservation.

Without such reservation, the civil action is deemed impliediv instituted

with the criminal action, unless previously waived or instituted.

The reservation applies only to the civil liability arising from the offense
charged.

Such civil actions are not limited to those which arise "from the offense
charged."

The employer may no longer be held civilly liable for quasi delict in the
criminal action as ruled in Maniago (supra) and San Ildefonso lines
(supra) and the pro hac vice decision in Rafael Reyes Trucking
Corporation (supra), and all other similar cases, since quasi-delict is not
deemed instituted with the criminal.

In other words, the right of the injured party to sue separately for the
recovery of the civil liability whether arising from crimes (ex delicto or
from quasi delict under Art. 2176 of the Civil Code must be reserved
otherwise they will be deemed instituted with the criminal action).

If at all, the only civil liability of the employer in the criminal action
would be his subsidiary liability under the Revised Penal Code.

This includes the right to recover damages against the employer

pursuant to Article 2180 in relation to Article 2176 of the Civil Code.
Elsewise stated, prior reservation is a condition sine qua non before any
of these independent civil actions including the action for quasi-delict
against the employer can be instituted and thereafter have a continuous
determination apart from or simultaneous with the criminal action.
4.

The rule has also done away with third party complaints and
counterclaims in criminal actions.
These claims must have to be ventilated in a separate civil action.

Fourth Amendment

The fourth amendment is similar to the original rule in Rule 107 of the
Rules of Court and the 1985 amendment.

The Revised Rules on Criminal Procedure is a virtual return to the 1940

Rules of Court (and the 1985 amendment) which deemed as instituted
with the criminal action only the civil liability arising from the offense
charged.

Rule 107 contemplates a case where the offended party desires to press
his right to demand indemnity from the accused in the criminal case
which he may assert either in the same criminal case or in a separate
action.

The civil liability is deemed instituted not merely "impliedly" instituted

with the institution of the criminal action.

Under this rule, a waiver from failure to reserve does not include a cause
of action not arising from civil liability involved in the criminal case but
from culpa contractual, such as a civil case is based on alleged culpa
contractual incurred by the Philippine Air Lines, Inc. because of its
failure to carry safely the deceased passenger to his place of
destination.

The amendment modified the recommendation of the Committee on the

Revision of the Rules of Court to deem as impliedly instituted only the
civil liability of the accused from all sources of obligation arising from
the same act or omission.
92

The criminal case involves the civil liability of the accused, who bear no
relation whatsoever with said entity and are complete strangers to it.

The Principle of Simultaneous Civil Actions

Thus, civil liability arising from crime and civil liability arising from Articles
32, 33, 34 and 2176 quasi-delict or contract are entirely separate and distinct
from the criminal action that may be brought by the injured party and may
proceed simultaneously;

The accused are complete strangers to the respondent company.

The latter is not in any way involved therein. Plaintiff is concerned with
the civil liability of the latter, regardless of the civil liability of the
accused in the criminal case.

The civil liability is not extinguished where acquittal is based on reasonable

doubt.

The failure, therefore, on the part of the plaintiff to reserve her right to
institute the civil action in the criminal case cannot in any way be
deemed as a waiver on her part of the right to institute a separate civil
action against the respondent company based on its contractual
liability, or on culpa aquiliana under Articles 1902 to 1910 to of the Civil
Code.

Two Separate Civil Liabilities from Same Act or Omission

An act or omission causing damage to another may give rise to two

separate liabilities on the part of the offender, i.e.,

The two actions are separate and distinct and should not be confused
one with the other.

1)

civil liability ex delito, under Article 100 of the Revised Penal Code, and

2)

independent civil liabilities, such as those

Under Article 31 of the Civil Code: "When the civil action is based on an
obligation not arising from the act or omission complained of as a
felony, such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter."

(a) not arising from an act or emission complained of as a felony, e.g.,

culpa contractual or obligations arising from law under Article 32, of the
Civil Code, intentional torts under Articles 32 and 34, and culpa
aquiliana under Article 2176 of the Civil Code; or

It may further be noted that Article 31 is not among the civil actions that
are deemed impliedly instituted with the filing of the criminal.

(b) where the injured party is granted a right to file an independent and
distinct criminal action.

It may likewise be noted that in Corpus v. Page, the court ruled that
Article 33 did not contemplate reckless imprudence or criminal
legligence cases.

Either of these two possible liabilities may be enforced against the

offender (separately and simultaneously) subject, however, to the caveat
under Article 2177 of the Civil Code that the attended party cannot recover
damages twice for the same act or emission or under both causes.
However, a separate civil action based on subsidiary liability cannot be
instituted during the pendency of the criminal case.

However in Maceda v. Caro, the court observed ;hat Corpus v. Page is

not controlling and held that Article 33 also covers crimes committed
thru criminal negligence.

Civil Actions in Cases of Negligence

And, in Eicano v. Hill, the court ruled that the concept of quasi-delict
includes intentional acts, i.e., acts or omissions punishable by law.

In cases of negligence, the offended party has the choice between an

action to enforce civil liability arising from crime under the Revised Penal Code
and an action for quasi-delict under the Civil Code.

The foregoing concepts would allow more than one civil action to recover
civil liability arising from the same act or ommission.

The Principle Allowing Separate Civil Actions noT Allowed for Violations of BP Big. 22

The only limitation is against double recovery.

The principle does not apply to violations of B.P. Big. 22 which provides that
"The criminal action for violation of Batas Pambanss Big. 22 shall be deemed to
include the corresponding civil action.

This is in effect the present rule.

No reservation to file such civil action separately shall be allowed."

93

The Court explained that this rule was enacted to help declog court dockets
which are filled with B.P. Big. 22 cases as creditors actually use the courts as
collectors.

The pendency of the civil action before the court trying the criminal case
bars the filing of another civil action in another court on the ground of litis
pendentia.

Because ordinarily no filing fee is charged in criminal cases for actual

damages, the payee uses the intimidating effect of a criminal charge to collect
his credit gratis and some times, upon being paid, the trial court is not even
informed thereof

Thus, the complaint for recovery of sum of money based on a contractual

debt filed in the Regional Trial Court was dismissed because of the pendency of a
criminal case for violation of B.P. Big. 22 filed by the for the issuance of bouncing
checks in payment of the same obligation which deemed as included the civil
action recovery of the sum of money sought to be recovered in the civil action.

The inclusion of the civil action in the criminal case is expected to

significantly lower the number of cases filed before the courts for collection
based on dishonored checks.

Action Based on Compromise Agreement held as Different from Violation of B.P. Big. 22

An action, however for collection based on violation of a Memorandum

Agreement entered into where parties also agreed to dismiss the criminal
proceedings for violation of B.P. Big. 22 was held as not violative of the rule
against forum shopping because, there is no identity of parties, rights or causes
of action, sand relief sought. The Court stated:

It is also expected to expedite the disposition of these cases.

Instead of instituting two separate cases, one for criminal and another for
civil, only a single suit shall be filed and tried.

HERE, THE TWO CASES INVOLVED ARE THE INSTANT CIVIL CASE FOR
COLLECTION OF SUM OF MONEY WHERE PETITIONER IS THE
DEFENDANT, AND THE B.P. BIG. 22 CASES WHERE PETITIONER IS THE
ACCUSED.

It should be stressed that the policy laid down by the Rules is to discourage
the separate filing of the civil action.
The Rules even prohibit the reservation of a separate civil action, which
means that one can no longer file a separate civil case after the criminal
complaint is filed in court.

Clearly, there is no identity of parties for in the criminal case, the plaintiff is the
State with Ligon only as a complaining witness. In the case at bar, Ligon himself is the
plaintiff.

The only instance when separate proceedings are allowed is when the civil
action is filed ahead of the criminal case.

There is also a difference in the causes of action.

Even then, the Rules encourage the consolidation o the civil and criminal
cases.

In the instant case, the cause of action is petitioner's breach of contract as embodied
in the Memorandum of Agreement, while in the criminal case, it is the violation of B.P. Big.
22.

We have previously observed that a separate civil action for the purpose of
recovering the amount of the dishonored checks would only prove to be costly,
burdensome and time-consuming for both parties and would further delay the
final disposition of the case.

There is also a difference in reliefs sought because in the civil case, what is sought is
the enforcement of the terms in their Memorandum of Agreement, while in the criminal
case, it is the punishment of the offense committed against a public law.
As we explained in Go v. Dimagiba, civil liability differs from criminal liability.

This multiplicity of suits must be avoided.

What is punished in the latter is not the failure to pay an obligation but the issuance
of checks that subsequently bounced or were dishonored for insufficiency or lack of funds.

Where petitioners' rights may be fully adjudicated in the proceedings

before the trial court, resort to a separate action to recover civil liability is clearly
unwarranted.

The issuance of worthless checks is prohibited because of its deleterious effects on

public interest and its effects transcend the private interest of the parties directly involved
in the transaction and touches the interest of the community at large.

In view of this special rule governing actions for violation ofB.P. Big. 22,
Article 31 of the Civil Code cited by the trial court will not apply to the case at
bar.

In the present civil case, no such transcendental public interest exists.

94

Right to Intervene in Estafa Cases

The Sandiganbayan Rule: Prohibition against Separate Civil Action

The fact, however, that the Rules do not allow the reservation of civil
actions in B.P. Big. 22 cases canot deprive private complainant of the right to
protect her interests in the criminal action for estafa.

Petitioner DPWH the offended party in a criminal case for estafa thru
falsification of public documents and for violation of Section 3(e) and (g) of R.A.
No. 3019 pending in the Sandiganbayan lodged its own counterclaim to the
collection case filed with the Malabon Trial Court, praying for the return of its
payment made to the Navotas Industrial Corporation (NIC) arising from the
dredging contracts subject of the criminal action.

Nothing in the current or rules on B.P. Big. 22 vests the jurisdiction of the
corresponding civil case exclusively in the Court trying the B.P. Big. cases.
In promulgating the Rules, the Court did not intend to leave the offended
parties without any remedy to protect their interests in estafa cases.

However, the Court held that petitioner's counterclaim is deemed

abandoned by virtue of Section 4 of P.D. No. 1606, as amended.

Private complainant's intervention in the prosecution of the estafa and B.P.

Big. 22 is justified not only for the prosecution other interests, but also for the
speedy and inexpensive administration of justice as mandated by the Constitution despite the necessary inclusion of the corresponding civil; action in the
proceedings for violation of BP 22 pending before the MTC.

The last paragraph of Section 4 of P.D. No. 1606, as amended, provides

that:
Any provision of law or Rules of Court to the contrary notwithstanding, the criminal
action and the corresponding civil action for the recovery of civil liability shall at all times
be simultaneously instituted with, and jointly determined in, the same proceeding by the
Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to reserve the filing of
such civil action separately from the criminal action shall be recognized:

The only limitation is that a recovery in one bars the other.

On the other hand a separate civil action for failure to comply with the
obligations under the Trust Receipts was allowed although the a criminal case for
violation of the Trust receipts law had already been filed.

Provided, however. That where the civil action had heretofore been filed separately
but judgment therein has not yet been rendered, and the criminal case is hereafter filed
with the Sandiganbayan or the appropriate court, said civil action shall be transferred to
the Sandiganbayan or the appropriate court, as the case may be, for consolidation and
joint determination with the criminal action, otherwise the separate civil action shall be
deemed abandoned.

According to the Court:

THE RIGHT TO FILE A SEPARATE COMPLAINT FOR A SUM OF MONEY IS
GOVERNED BY THE PROVISIONS OF ARTICLE 31 OF THE CIVIL CODE, TO
WIT:

The Court held that Petitioner's counterclaim in the civil case pending with
the Malabon trial court for the return of the amount DPWH paid NIC is an action
to recover civil liability ex delicto.

"Article 31. When the civil action is based on an obligation not arising from the act or
omission complained of as a felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the latter."

However, this action to recover civil liability ex delicto is by operation of

law included in the criminal cases filed with the Sandiganbayan.

Where the complaint against petitioners was based on the failure of the
latter to comply with their obligation as spelled out in the Trust Receipt executed
by them.

By mandate of R.A. No. 8249, the counterclaim filed earlier in the separate
civil action with the Malabon trial court "shall be deemed abandoned."

This breach of obligation is separate and distinct from any criminal liability
for "misuse and/or misappropriation of goods or proceeds realized from the sale
of goods, documents or instruments released under trust receipts", punishable
under Section 13 of the Trust Receipts Law (P.D. No. 115) in relation to Article
315(1), (b) of the Revised Penal Code.

Extent of Damages Awarded in Civil Liability Arising from Crimes

Civil liability arising from crime includes, moral damages, exemplary

damages and loss of earning capacity.
Attorney's fees may be awarded but only when a separate civil action to
recover civil liability has been filed or when exemplary damages are awarded.
Life expectancy is included in award of damages.

Being based on an obligation ex contractu and not ex delicto, the civil

action may proceed independently of the criminal proceedings instituted against
petitioners regardless of the result of the latter.
95

Damage or injury to another is evidently the foundation of the civil action.

The only civil liability that may thus be imposed in a criminal action is that
arising from and consequent to the criminal liability oi the accused on the
principle that every person criminally liable is also civilly liable.
This includes restitution, reparation of damages caused and
indemnification of consequential damages.
Complementary thereto, are the subsidiary civil liability of innkeepers,
tavern keepers and proprietor of establishments, employers, teachers, persons
and corporations engaged in any kind of industry, for felonies committed by
their servants, pupils, workmen, apprentices, employees in the discharge of their
duties.

Such is not the case in criminal actions for, to be criminally liable, it is

enough that the act or omission complained of is punishable, regardless of
whether or not it also causes material damage to another.
Article 20 of the New Civil Code provides:
"EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY OR NEGLIGENTLY
CAUSES DAMAGE TO ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE
SAME.

Broader Concept of Civil Liability

Regardless, therefore, of whether or not a special law so provides,

indemnification of the offended party may be had on account of the damage,
loss or injury directly suffered as a consequence of the wrongful act of another.

In Banal v. Tadeo, Jr., a case of violation of B.P. Big. 22, (A law making the
issuance of a bouncing check criminal) the lower court rejected the appearance
of a private prosecutor on the ground that B.P. Big. 22 does not provide for any
civil liability or indemnity and, hence it is not a crime against property but public
order.

The indemnity which a person is sentenced to pay forms an integral part of

the penalty imposed by law for the commission of a crime.
Every crime gives rise to a penal or criminal action for the punishment of
the guilty party; and also to civil action for the restitution of the thing, repair of
the damage and indemnification for the losses.

The Supreme Court, in setting aside the order, gave a broader concept of
the civil liability that may be recovered in a criminal action. The Supreme Court
said:

Civil liability is however, improper in illegal possession of firearms qualified

by murder.
The civil liability arising from the death may be claimed either in a separate
action or impliedly instituted with the criminal action for murder or homicide."

"GENERALLY, THE BASIS OF CIVIL LIABILITY ARISING FROM CRIME IS THE

FUNDAMENTAL POSTULATE OF OUR LAW THAT EVERY MAN CRIMINALLY
LIABLE IS ALSO CIVILLY LIABLE."

Effect of Failure to Allege Damages in Complaint or Information

Underlying this legal principle is the traditional theory that when a person commits a
crime, he offends two entities, namely:

The fact that there is, no claim or allegation of damages in the complaint of
information is of no legal consequence.

(1) the society in which he lives in or the political entity called the State whose law
he had violated; and

Every person criminally liable for a felony is also civilly liable.

It has, therefore, been held that even if the complaint or information is
silent as to the damages or the intention to prove and claim them, the offender
is still liable for them, and the offended has the right to prove and claim for them
in the criminal case, unless a waiver or the reservation of the civil action is
made.

(2) the individual member of that society whose person, right, honor, chastity or
property was actually or directly injured or damaged by the same punishable act
or omission, x x x."

Viewing things pragmatically, we can readily see that what gives rise to the
civil liability is really the obligation and the moral duty of everyone to repair or
make whole the damage caused to another by reason of his own act or omission,
done intentionally or negligently, whether or not the same be punishable by law.

When Reservation May Be Made

The reservation of the right to institute the separate civil action arising
from the offenses charged shall be made before the prosecution starts to
present its evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.

In other words, criminal liability will give rise to civil liability only if the
same felonious act or omission results in damage or injury to another and is the
direct and proximate cause thereof.

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The purpose of the rule requiring reservation is to prevent the offended

party from recovering damages twice for the same act or omission.

Jovito's brother Nicasio, Jr. and for serious physical injuries obtained by Jovito
when the bus in which they were riding, fell off a deep precipice.

The proviso requiring that the reservation may be made before the
prosecution starts to present evidence was brought about by the cases of
Tactaquin v. Palileo, Manio v. Gaddi, where despite the appearance of a private
prosecutor, the offended party was not able to present evidence on the
damages because of the plea of guilty of the accused who was accordingly
sentenced.

Defendant bus company moved to dismiss the complaint on the ground

that in the criminal case earlier filed against its bus driver, plaintiffs intervened
through their counsel but did not reserve therein their right to file a separate ac tion for damages. The Court held that the dismissal was improper and ruled
thus:
"TRUE, APPELLANTS, THROUGH PRIVATE PROSECUTORS, WERE ALLOWED TO INTERVENE WHETHER PROPERLY OR IMPROPERLY WE DO
NOT DECIDE HERE IN THE CRIMINAL ACTION AGAINST APPELLEE'S
DRIVER, BUT IF THAT AMOUNTED INFERENTIALLY TO SUBMITTING IN
SAID CASE THEIR CLAIM FOR CIVIL INDEMNITY, THE CLAIM COULD HAVE
BEEN ONLY AGAINST THE DRIVER BUT NOT AGAINST APPELLEE WHO
WAS NOT A PARTY THEREIN.

The Supreme Court in ,he case of Reyes v. Diy, stressed the need to give
the offended party in opportunity to make a reservation, and held that the mere
appearance of a private prosecutor in the criminal case against the private
respondents did not necessarily constitute such intervention on the part of the
aggrieved party as could only import an intention on her part to press her claim
for damages in said criminal case and waiver of her right to file a separate civil
action for damages because the accused had pleaded guilty upon arraignment
and was immediately sentenced, there was no chance for the aggrieved party to
present evidence in support of her claim for damages and to enter i reservation
in the record to file a separate civil action

As a matter of fact, however, inspite of appellee's statements to the contrary in its

brief, there is no showing in the record before Us that appellants made of record their
claim for damages against the driver or his employer; much less does it appear that they
had attempted to prove such damages.

Reservation Need not be Express but May Be Implied

The failure of the court to make any pronouncement in its decision concerning the
civil liability of the driver and I or of his employer must therefore be due to the fact that
the criminal action did not involve at all any claim for civil indemnity."

While a reading of the afore-quoted provisions shows that the offended

party is required to make a reservation of his right to institute a separate civil
action, jurisprudence instructs that such reservation may not necessarily be
express but may be implied which may be inferred not only from the acts of the
offended party but also from acts other than those of the latter.

Later, in Jarantilla, the Court ruled that the failure of the trial court to make
any pronouncement, favorable or unfavorable, as to the civil liability of the
accused amounts to a reservation of the right to have the civil liability litigated
and determined in a separate action, for nowhere in the Rules of Court is it
provided that if the court fails to determine the civil liability, it becomes no
longer enforceable.

In the Vintola case, the fact that plaintiff actively intervening in the
prosecution of the criminal case through a private prosecutor, is of no moment.
In ruling that the Estafa case is not a bar to the institution of a civil action
for collection, this Court held that:

Nothing in the records at hand shows that private respondent ever

attempted to enforce its right to recover civil liability during the prosecution of
the criminal action against petitioners.

"[I]T IS INACCURATE FOR THE VINTOLAS TO CLAIM THAT THE JUDGMENT

IN THE ESTAFA CASE HAD DECLARED THAT THE FACTS FROM WHICH THE
CIVIL ACTION MIGHT ARISE, DID NOT EXIST, FOR IT WILL BE RECALLED
THAT THE DECISION OF ACQUITTAL EXPRESSLY DECLARED THAT 'THE
REMEDY OF THE BANK IS CIVIL AND NOT CRIMINAL IN NATURE.'

Thus, even if there was no reservation in the criminal case and that the
civil action was not filed before the filing of the criminal action but before the
prosecution presented evidence in the criminal action, and the judge handling
the criminal case was informed thereof, then the actual filing of the civil action is
even far better than a compliance with the requirement of an express
reservation that should be made by the offended party before the prosecution
presented its evidence.

This amounts to a reservation of the civil action in IBAA's favor for the Court would
not have dwelt on a civil liability that it had intended to extinguish by the same decision."

In the Bernaldes case, plaintiffs spouses Nicasio Bernaldes, Sr. and

Perpetua Besas together with their minor son, Jovito, filed a complaint for
damages against defendant Bohol Land Transportation Co. for the death of

Where a separate civil action to recover the civil liability of the accused
arising from the crime charged has been reserved, the heirs of the deceased are
97

precluded from recovering damages in the criminal case against the accused, for
they are not entitled to recover damages twice for the same criminal act of the
accused.

"absence of clear-cut rules governing the prosecution ofimpliedly instituted civil

action and the necessary consequences and implications thereof."
The civil liability of petitioners for swindling respondent spouses and for
maliciously filing a baseless suit must be litigated in a separate proceeding.

The trial court erred in awarding to the heirs of the deceased P30,000.00 as
civil indemnity for his death despite their reservation.

Separate Civil Action By the Accused

Thus, the accused may file a separate civil action based on quasi-delict
arising from the same incident and may proceed simultaneously and
independently of the criminal case against him as provided under section 1(6)
which allows "the accused in the criminal case, to file any cause of action which
could have been the subject thereof in a separate civil action, since the accused
is prohibited from setting up any counterclaim in the civil aspect that is deemed
instituted in the criminal case.

Effect of Reservation
It has been held that the prescription of action does not prescribe for the
civil action that have been reserved in the criminal action.
Note: Under Section 2, Rule 111 during the pendency of the criminal action,
the running of the period of prescription of the civil action which cannot be
instituted separately or whose proceeding shall be tolled.

The accused is therefore forced to litigate separately his counterclaim

against the offended party.

Waiver of Civil Liability Arising from Crime

If the accused does not file a separate civil action for quasi-delict, the
prescriptive period may set in since the period continues to run until the civil
action for quasi-delict is filed.

The civil liability arising from a crime may be waived.

No counterclaim, cross-claim or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have been the
subject thereof may be litigated in a separate civil action.

Moreover, the accused, who is presumed innocent, has a right to invoke

Article 2177 of the Civil Code, in the same way that the offended party can avail
of this remedy which is independent of the criminal action.

A court trying a criminal case cannot award damages in favor of the

accused.

To disallow the accused from filing a separate civil action for quasi-delict,
while refusing to recognize his counterclaim in the criminal case, is to deny him
due process of law, access to the courts, and equal protection of the law.

The task of the trial court is limited to determining the guilt of the accused
and if proper, to determine his civil liability.

Notably, the Court did not order the consolidation but allowed the civil
action to proceed separately, otherwise, it would defeat the prohibition against a
counterclaim.

A criminal case is not the proper proceedings to determine the private

complainant's civil liability, if any.

Limitation on Separate Civil Action by an Accused in the Sandiganbayan

The Court ruled in Cabaero v. Hon. Cantos, that a court trying a criminal
case should limit itself to the criminal and civil liability of the accused, thus:

A separate civil action for collection of sum of money filed by the accused
against the offended party while the criminal case in the Sandiganbayan is
pending cannot be consolidated with the criminal case, for the Sandiganbayan
has no jurisdiction over collection cases, nor can it proceed independently of the
criminal cases filed with the Sandiganbayan.

[THUS,] THE TRIAL COURT SHOULD CONFINE ITSELF TO THE CRIMINAL

ASPECT AND THE POSSIBLE CIVIL LIABILITY OF THE ACCUSED ARISING
OUT OF THE CRIME.
The counterclaim (and cross-claim or third-party complaint, if any) should be set
aside or refused cognizance without prejudice to their filing in separate proceedings at the
proper time.

The accused's collection case for unpaid services from its dredging
contracts with the offended party obviously does not fall under Articles 32, 33 or
34 (on Human Relations) of the Civil Code. Neither does it fall under Article 2176
(on auasi-delict) of the Civil Code.

This paragraph addresses the lacuna mentioned in Cabaero on the

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Only the Sandiganbayan has the jurisdiction to decide whether the act of
entering into such contract is a crime, where the salary grade of one of the
accused is Grade 27 or higher, as in Criminal Cases Nos. 16889-16900 filed with
the Sandiganbayan.

Under Section 3 of Rule 111, civil actions falling under Articles 32, 33, 34 or
2176 may proceed independently and separately from the criminal case.
The only other possibility is for the accused's civil action to fall under
Article 31 of the Civil Code which provides:

Article 31 speaks of a civil action "based on an obligation not arising from

the act x x x complained of as a felony."

ART. 31. WHEN THE CIVIL ACTION IS BASED ON AN OBLIGATION NOT

ARISING FROM THE ACT OR OMISSION COMPLAINED OF AS A FELONY,
SUCH CIVIL ACTION MAY PROCEED INDEPENDENTLY OF THE CRIMINAL
PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE LATTER.

This clearly means that the obligation must arise from an act not constituting a crime.
Where, the act purporting to create the obligation is assailed as a crime in
itself, no civil action based on such contracts can proceed independently of the
criminal action.

An example of a case falling under Article 31 is a civil action to recover the

proceeds of sale of goods covered by a trust receipt.
Such civil action can proceed independently of the criminal action for violation of the trust receipt law.

This calls then for the application of the second paragraph of Section 2 of
Rule 111 which states that "if the criminal action is filed after the said civil action
has already been instituted, the latter shall be suspended in whatever stage it
may be found before judgment on the merits."

In such a case, the validity of the contract, on which the civil action is
based, is not at issue.
What is at issue is the violation of an obligation arising from a valid
contract -- the trust receipt.

Consequently, the civil case for collection pending in the Malabon Trial
Court must be suspended until after the termination of the criminal cases filed
with the Sandiganbayan.

However, when the civil action is based on a purported contract that is

assailed as illegal per se, as when the execution of the contract is alleged to
violate the Anti-Graft and Corrupt Practices Act, Article 31 does not apply.

In contrast, where the civil action is based on a contract that can remain
valid even if its violation may constitute a crime, the civil action can proceed
independently.

In such a situation, the contract if proven illegal cannot create any valid
obligation that can be the basis of a cause of action in a civil case.

Thus, in estafa thru violation of the trust receipt law, the violation of the
trust receipt constitutes a crime.

Under Article 1409 of the Civil Code, a contract "whose cause, object or
purpose is contrary to law," or a contract that is "expressly prohibited or
declared void by law," is void from the very beginning.

However, the trust receipt itself remains valid, allowing a civil action based
on the trust receipt to proceed independently of the criminal case.
Retroactive Application of Amendment

No party to such void contract can claim any right under such contract or
enforce any of its provisions.

It has been held although the incident and the actions arising therefrom
were instituted before the promulgation of the 1985 Rules on Criminal
Procedure, its provisions which are procedural may apply retrospectively.

Under Section 3(g) of the Anti-Graft and Corrupt Practices Act, entering into
a contract that is manifestly and grossly disadvantageous to the government is
"declared to be unlawful."

Subsidiary Liability

If the act of entering into the contract is assailed as a crime in itself, then
the issue of whether the contract is illegal must first be resolved before any civil
action based on the contract can proceed.

To be treated differently is the subsidiary liability of the employer.

Commencing with Pajarito v. Seneris 68 followed by Ozoa v. Vda. de Madula 69
and Catacutan v. Heirs of Kadusale, 70 it is now settled that the subsidiary liability
99

of the employer, including the amounts thereof, may be determined in the same
criminal proceed ings and is reviewable either by writ of error or through a
petitior for review on certiorari on pure questions of law.
The appeal shall be governed by appeals in criminal cases, since this is but
a continuation of the civil proceedings, the period to be counted not from the
promulgation of judgment but from the notice of the order.
The principle was stressed in Yusay v. Adil,71 a case of less serious physical
injuries and damage to property thru reckless imprudence, with the Supreme
Court's statement that: "The employer is in substance and effect, a party to the
criminal case against his employee, considering the subsidiary liability imposed
upon him by law.'

liable for a felony is also civilly liable.

In default of the persons criminally liable, employers engaged in any kind
of industry shall be civilly liable for felonies committed by their employees in the
discharge of their duties.
Article 33 of the Civil Code provides specifically that in cases of
defamation, a civil action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party.

Basis of Employer's Subsidiary Liability

It bears emphasis, however, that before the employer's subsidiary liability
may be proceeded against, it is imperative that then should be a criminal action
whereby the employee's criminal negligence or delict and corresponding liability
therefor are proved.
If no criminal action was instituted, the employer's liability would not be
predicated under Article 103 of the Revised Penal Code.
The judgment in the criminal action announcing the employee to be civilly
liable is conclusive on the employer not only as to the actuality of the liability
but also as to its amount, from which no appeal by the employer lies from the
judgment of conviction.
The employer must be afforded due process, by holding a hearing to
determine his liability on the basis of the conditions required by law, namely:
(a) the existence of an employer-employee relation ship;
(b) that the employer is engaged in some kind of agency
(c) that the employee is adjudged guilty of the wrongful act and found to
have committed the offense in the discharge of his duties (not
necessarily any offense he may commit); and
(d) that said employee is insolvent.
Obligations arising from crimes are governed by Article 1161 of the Civil
Code, which provides that said obligations are governed by penal laws, subject
to the provision ofArticle 2177 and the pertinent provisions of Chapter 2,
Preliminary Title, on Human Relations, and of Title XVIII of Book IV of the Civil
Code.
Article 100 of the Revised Penal Code provides that every person criminally
100

Such civil action proceeds independently of the criminal prosecution and

requires only a preponderance of evidence.

paid by the offended party upon the filing thereof in court for trial.

In Joaquin v. Aniceto, the Court held that Article 33 contemplates an action

against the employee in his primary civil liability.

In any other case i.e., when the amount of damages other than the civil action "to
enforce civil liability against the accused by way of moral, nominal, temperate or
exemplary damages shall (merely) constitute a first lien on the judgment except in an
award for actual damages."

It does not apply to an action against the employer to enforce its subsidiary civil
liability, because such liability arises only after conviction of the employee in the
criminal case or when the employee is adjudged guilty of the wrongful act in a
criminal action and found to have committed the offense in the discharge of his
duties.

The Court's plain intent to make the Manchester doctrine, requiring

payment of filing fees at the time of the commencement of an action applicable
to impliedly instituted civil actions under Section 1, Rule 111 only when "the
amount of damages, other than actual, is alleged in the complaint or information
has thus been made manifest by the language of the amendatory provisions."

Any action brought against the employer based on its subsidiary liability
before the conviction of its employee is premature.

For the guidance of all concerned when a civil action is deemed instituted
with the criminal action in accordance with Section 1, Rule 111 of the Rules of
Court because the offended party has NOT waived the civil action, or reserved
the right to institute it separately, or instituted the civil action prior to the
criminal action the rule is as follows:

Filing Fees in Estafa cases

Section 20 of Rule 141 Approved on September 14, 1999 provides that
filing fees in estafa cases are also required where the offended party fails to
manifest within fifteen days following the filing of the information that the civil
liability arising from the crime has been or would be separately prosecuted.
Filing Fee as a Lien
When the offended party seeks to enforce civil liability against the accused
by way of moral, nominal, temperate or exemplary damages, the filing fees for
such civil action as provided in these Rules shall constitute a first lien on the
judgment except in an award for actual damages.
In cases wherein the amount of damages, other than actual, is alleged in
the complaint or information, the corresponding filing fees shall be paid by the
offended party upon the filing thereof in court for trial
Explaining how the foregoing amendment came about, Justice Narvasa
(later Chief Justice) in General v. Claravall, stated:
"THE LAST TWO (2) PARAGRAPHS PRESCRIBE A RULE DIFFERENT FROM
THAT IN MANCHESTER, AND IN THE 1985 RULES ON CRIMINAL PROCEDURE.
Under the 1985 Rules, the filing fees for the civil action impliedly instituted with the
criminal action had to be paid first to the Clerk of the Court where the criminal action was
commenced, without regard to whether the claim for such damages was set out in the
information or not.

a)

when "the amount of damages, other than actual, is alleged in the complaint
or information" filed in court, then "the corresponding filing fees shall be
paid by the offended party upon the filing thereof in court for trial";

b)

in any other case, however i.e., when the amount of damages is not so
alleged in the complaint or information filed in court, the corresponding
filing fees need not be paid and shall simply "constitute a first lien on the
judgment, except in an award for actual damages."

The ruling in General v. Claravall, especially the last subparagraph abovequoted, was actually intended to apply to a situation wherein either: (1) the
judgment awards a claim not specified in the pleading, or (2) the complainant
expressly claims moral, exemplary, temperate and/or nominal damages but has
not specified ANY amount at all, leaving the quantification thereof entirely to the
trial court's discretion and NOT to a situation where the litigant specifies some
amounts or parameters for the awards being sought, even though the different
types of damages sought be not separately or individually quantified.
To hold otherwise, would be to permit litigants to continue availing of one
more loophole in the rule on payment of filing fees, and would not serve to
attain the purpose of the revised Sec. 1 of Rule 111, which is "to discourage the
gimmick of libel complainants of using the fiscal's office to include in the criminal information their claim for astronomical damages in multiple millions of
pesos without paying any filing fees."
SEC. 2.
When Separate Civil Action is Suspended

Under the 1988 Rules, however, it is only when 'the amount of damages, other than
actual, is alleged in the complaint or information that the corresponding filing fees shall be

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Suspension of Civil Action Arising from Crimes

No suspension if civil action does not arise from Crime

Except for civil actions provided for in Articles 32, 33, 34 and 2176 of the
Civil Code, the civil action which has been reserved cannot be instituted until
final judgment has been rendered in the criminal action.
The action contemplated herein is a civil action arising from a crime.
If reserved or filed separately and a criminal case is filed, it has to be
suspended to await final judgment in the criminal action.
It may, however, be consolidated upon application with the court trying the
criminal action.
Article 31 speaks of a civil action "based on an obligation not arising from
the act x x x complained of as a felony."
This clearly means that the obligation must arise from an act not
constituting a crime.
Where, the act purporting to create the obligation is assailed as a crime in
itself no civil action based on such contracts can proceed independently of the
criminal action.
This calls then for the application of the second paragraph of Section 2 of
Rule 111 which states that "if the criminal action is filed after the said civil action
has already been instituted, the latter shall be suspended in whatever stage it
may be found before judgment on the merits."
Consequently, the civil case for collection pending in the Malabon Trial
Court must be suspended until after the termination of the criminal cases filed
with the Sandiganbayan.
The suspension of the civil case for collection of sum of money (based on
an obligation arising from contracts alleged to be a crime pending before the
Sandiganbayan) will avoid the possibility of conflicting decisions between the
Sandiganbayan and the Malabon trial court on the validity of NIC's dredging
contracts.
If the Sandiganbayan declares the dredging contracts illegal and void ab
initio, and such declaration becomes final, then NIC's civil case for collection of
sum of money will have no legal leg to stand on.
However, if the Sandiganbayan finds the dredging contracts valid, then
NIC's collection case before the Malabon trial court can then proceed to trial.

In Gandiongco u. Penaranda, the Supreme Court affirmed Judge

Penaranda's refusal to suspend the civil case for legal separation and support
with damages based on concubinage despite the filing of a concubinage case
with the municipal court.
His reason is that Section 2 of Rule 111 of the 1985 Rules on Criminal
Procedure refers to civil actions to enforce the civil liability arising from the
offense charged.
An action for legal separation is not to recover civil liability in the main, but
is aimed at the conjugal rights of the spouses and their relations to each other
within the contemplation of Articles 97 to 108 of the Civil Code.
The principle applies even with the 1988 Amendments where the Civil
action does not also fall under Articles 32, 33, 34 and 2176 of the Civil Code.
In fine, a civil action may not be suspended under Rule 111 where the
action is not to enforce civil liability from the crime charged.
Consolidation of Civil with Criminal Action Even if not Arising from Crime

May consolidation of civil actions with the criminal action be allowed where
the civil action is not to enforce civil liability arising from a crime?
In Naguiat v. Intermediate Appellate Court, the petitioner filed a complaint
for specific performance with damages to compel the respondent to deliver to
him certificates of title covering their lots which he had already paid for under a
contract to sell.
A criminal action was likewise filed against the respondent for violation of
P.D. No. 957 regulating the sale of subdivision, etc., and providing penalties
therefor.
Petitioner moved to consolidate the two (2) cases on the basis of Rule 111,
Section 3(a).
The trial court granted consolidation but the Court of Appeals reversed the
order.
The Supreme Court held that the civil actions that may be consolidated
under Section 3(a), Rule 111 is one for civil liability arising from the criminal
offense or of ex-delicto of which the civil action in this case is not one, but which
is based on the contract to sell or a civil action arising ex-contracto, hence, Rule
111 is not applicable.
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The Supreme Court, however, justified the consolidation of the action for
specific performance with the criminal action for violation of P.D. No. 957 under
Section 1, Rule 31 of the Rules of Court as interpreted in Canos v. Peralta,*
where the Court sustained the order of a trial court to consolidate a civil action
(an action for the recovery of wage differential, overtime and termination pay,
plus damages) with a criminal action (for violation of the Minimum Wage Law), it
was held that:
"A COURT MAY ORDER SEVERAL ACTIONS PENDING BEFORE IT TO BE
TRIED TOGETHER WHERE THEY ARISE FROM THE SAME ACT, EVENT OR
TRANSACTION, INVOLVE THE SAME OR LIKE ISSUES, AND DEPEND
LARGELY OR SUBSTANTIALLY ON THE SAME EVIDENCE, PROVIDED, THAT
THE COURT HAS JURISDICTION OVER THE CASES TO BE CONSOLIDATED
AND THAT A JOINT TRIAL WILL NOT GIVE ONE PARTY AN UNDUE
ADVANTAGE OR PREJUDICE THE SUBSTANTIAL RIGHTS OF ANY OF THE
PARTIES, X X X"
The obvious purpose of the above rule is to avoid multiplicity of suits, to
guard against oppression and abuse, to prevent delays, to clear congested
dockets, to simplify the work of the trial court; in short, the attainment of justice
with the least expense and vexation to the parties litigants. * * *
The consolidation of two (2) cases where petitioner's counsel may act as
counsel for the plaintiff in the civil case and private prosecutor in the criminal
case, will be conducive to the early termination of the two (2) cases, and will
redound to the benefit and convenience of the parties; as well as to the speedy
administration of justice.

The civil arising from a quasi-delict is not suspended but may proceed
simultaneously.
The subsidiary liability may only be enforced after the final judgment of
conviction.
However, prescription of the cause of action quasi-delicto does not operate
as a bar to in action to enforce the civil liability arising from the crime especially
where the latter action had been expressly reserved.
The dismissal of the action based on culpa aquiliana is not a bar to the
enforcement of the subsidiary liability of the employer.
Once there is a conviction for a felony, final in character, the employer
becomes subsidiarily liable if the commission of the crime was in the discharge
of the duties of the employer.
The Court allowed the indemnity in the foregoing case despite the
erroneous procedure of petitioner in seeking a remedy in filing a petition for
certiorari instead of an appeal from the erroneous order of the trial court
dismissing the action on the ground prescription since it is an action for quasidelict.
The Court stressed that it is "loathe to deprive petitioners of the indemnity
to which they are entitled by law and a final judgment of conviction based solely
on technicality."
Effects of Judgment of Acquittal

Under this principle, civil actions under Articles 32, 33, 34 and 2176 may
be consolidated with the criminal action subject to jurisdictional constraints.
The rule on jurisdiction in criminal cases which is determinable by the
prescribed penalty regardless of other imposable accessory or other penalties,
included in the civil liability arising from such offenses or predicated therein
irrespective of kind, nature, value or amount thereof, no longer applies since the
civil
action to be consolidated does not arise from the criminal offense charged.

Extinction of the penal action does not carry with it extinction of the civil.
However, the civil action based on delict may be extinguished if there is a
finding in a final judgment that the act or omission from which the civil liability
may arise did not exist.
Even if there is a finding in a final judgment that the act or omission from
which the civil might arise did not exist, this would only refer to the civil liability
arising from the offense since this is the only civil liability that is deemed
instituted with the criminal action.

The period of prescription of the civil action which cannot be instituted

separately or whose proceeding has been suspended shall not run, refer to the
civil action arising from a crime that has not been reserved or when it is filed
ahead of the criminal action.

It is a fundamental postulate of our law that "every person criminally liable

for a felony is also civilly liable."

The civil action that may be reserved is the civil arising from the crime.

And even if an accused is acquitted of the crime charged, such will not
necessarily extinguish the civil liability, unless the court declares in a final
judgment that the fact from which the civil might arise did not exist.
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In the landmark case of Padilla v. Court of Appeals, the Supreme Court en

bane, thru Justice Hugo Gutierrez emphasized that the court may award civil
liability in the same proceedings ever if the accused is acquitted.
This was to be followed in People v Jalandoni, Maxima v. Geroch, Vizconde
u. IAC, People v. Ligon, and other cases, until the doctrine found its way in the
third paragraph of Section 2, Rule 120 of the 1985 Rules on Criminal Procedure,
which provided that "in case of acquittal, unless there is a clear showing that the
act from which the civil liability might arise did not exist, the judgment shall
make a finding on the civil liability of the accused in favor of the offended party."
Under The Revised Rules on Criminal Procedure: "In case the judgment is of
acquittal, it shall state whether the evidence of the prosecution absolutely failed
to prove the guilt of the accused or merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if the act or omission from
which the civil liability might arise did not exist."
There has been a change in the language of the rule.
Whereas the 1985 rule was more categorical in requiring that "the
judgment shall make a finding on the civil liability of the accused in favor of the
offended party," the present rule simply states that "the judgment shall
determine if the act or omission from which the civil liability might arise did not
exist."

the existence of a lapsus in the decision, in the motion for reconsideration filed
by the complainant, within the reglementary period, and taking into account the
petition to supply what had been omitted, the trial judge could have set the
motion for reconsideration for hearing, in order to receive evidence, as to the
value of the properties admittedly stolen by the accused, or to the return of the
goods, if it was still feasible. In an identical case, where the lower court had
failed to provide for the corresponding civil liability, the Supreme Court ordered
the said case remanded to the court of origin, for the purpose of determining the
civil liability of the accused.
The principle applies even in cases of acquittal, unless there is a clear
showing that the act from which the civil liability might arise did not exist.
The duty of the court to a award, civil liability inspite of acquittal is
compellable by mandamus.
In Lontoc and Jarantilla, the court held that under the present
jurisprudential matters, where the trial court acquits the accused on reasonable
doubt, it could very well make a pronouncement on the civil liability of the
accused and the complainant could file a petition for mandamus to compel the
trial court to include such civil liability in the judgment of acquittal.
Acquittal in a criminal case does not bar continuation of the civil case
connected therewith where:
1) the acquittal is based on reasonable doubt;
2) the decision contains a declaration that the liability of the accused is not
criminal but only civil; or

It seems fairly obvious, however, that despite the acquittal of the accused,
if the act or omission from which the civil liability might arise do exist, when the
acquittal is merely because of failure to prove the guilt of the accused beyond
reasonable doubt then the court should award the civil liability in favor of the
offended party in the same criminal action.

3) the civil liability is not derived from or based on the criminal act of which
the accused is acquitted.

Even before the 1985 amendments, the settled jurisprudence is that it is

the duty of the trial judge to award civil liability in favor of the offended party
despite the acquittal of the accused unless the fact from which the civil might
arise does not exist.

Thus, the acquittal of the accused from the criminal charge will not
necessarily extinguish the civil liability unless the Court declares in the judgment
that the fact from which the civil liability might arise did not exist.
Similarly, "extinction of the penal action does not carry with it the
extinction of civil liability unless the extinction proceeds from a declaration in a
final judgment that the fact from which the civil liability might arise did not
exists."

In a case, the trial judge in not having included civil liability in the decision,
stated that it cannot exercise discretion alone in determining the liability upon
the mere allegations, the same being evidentiary.

In Caina v. People, however, the extinction of the liability civil was inferred
from a finding that there is no negligence even if the acquittal is based on failure
to prove guilt beyond reasonable doubt.

Considering, however, the fact that the trial court's attention was drawn to

Similarly, Sanchez v. Far East Bank and Trust Company, held that recourse

Duty of Court to Award Civil Liability

104

to appeal the civil aspect from a judgment of acquittal may only be resorted if
the nature of he court's judgment fall under any of the three categories stated
above, as reiterated in Salazar v. People (supra) otherwise, the extinction of the
penal extinguish the civil.
The civil is deemed instituted with the criminal here the presence of any
instances precluding the automatic institution of the civil action together with
the criminal complaint.

Such civil action may be supported by a preponderance of evidence.

Upon the defendant's motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the complaint should be found to be
malicious.
If during the pendency of the civil action, an information should be
presented by the prosecuting attorney, the civil action shall be suspended until
the termination of the criminal proceedings.

Thus, a separate civil action may no longer be prosecuted.

Kinds of Acquittal
Principles Allowing- Separate Civil Action Despite Acquittal Even Without Reservation

CIVIL ACTIONS BASED ON CRIME

In Calalang v. Intermediate Appellate Court, where a civil action for
damages based on the crime of murder was held as not extinguished by the
dismissal of the criminal case by the Fiscal for failure of the complaint to
establish a prima facie case, the Supreme Court reiterated the case of People u.
Velez, that the dismissal of the information or the criminal action (upon motion
of the fiscal) does not affect the right of the offended party to institute or con tinue the civil action already instituted arising from the offense, because such
dismissal or extinction of the penal action does not carry with it the extinction of
the civil action.
The reason most often given for this holding is that the two proceedings
are not between the same parties.

In a criminal action, our law recognizes two kinds of acquittal, with different
effects on the civil liability of the accused.
First is an acquittal on the ground that the accused is not the author of the
act or omission complained of.
This instance closes the door to civil liability, for a person who has been
found to be not the perpetrator of any act or omission cannot and can never be
held liable for such act or omission.
There being no delict, civil liability ex delicto is out of the question, and the
civil action, if any, which may be instituted must be based on grounds other than
the delict complained of.
This is the situation contemplated in Rule 111 of the Rules of Court.

Different rules as to the competency of witnesses and weight of evidence

necessary to the findings in the two proceedings also exist.

The second instance is an acquittal based on reasonable doubi on the guilt

of the accused.

In a criminal action, the State must prove its case by evidence which shows
the guilt of the defendant beyond reasonable doubt, while in a civil action it is
sufficient for the plaintiff to sustain his cause by preponderance of evidence
only.
Therefore, the insufficiency of evidence to support a murder charge does
not imply that there is no sufficient evidence to support the civil case based on
the same alleged act.

In this case, even if the guilt of the accused has not been satisfactorily
established, he is not exempt from civil liability which may be proved by
preponderance of evidence only

Under the Civil Code, when a person, claiming to be injured by a criminal

offense, charges another with the same, for which no independent civil action is
granted in this Code or any special law, but the justice of the peace finds no
reasonable grounds to believe that a crime has been committed, or the
prosecuting attorney refuses or fails to institute criminal proceedings, the
complainant may bring a civil action for damages against the alleged offender.

This is the situation contemplated in Article 29 of the Civil Code where the
civil action for damages is "for the same act or omission.
Although the two actions have different purposes, the matters discussed in
the civil case are similar to those discussed in the criminal case.
However, the judgment in the criminal proceeding cannot be read in
evidence in the civil action to establish any fact there determined, even though
both actions involve the same act or omission.
The reason for this rule is that the parties are not the same and
105

secondarily, different rules of evidence are applicable.

Hence, notwithstanding herein petitioner's acquittal, the Court of Appeals
in determining whether Article 29 applied, was not precluded from looking into
the question of petitioner's negligence or reckless imprudence.
Illustrative Case:
IN A PROSECUTION FOR ESTAFA OR SWINDLING THROUGH FALSIFICATION OF A COMMERCIAL DOCUMENT, THE CIVIL IS DEEMED INSTITUTED
WITH THE CRIMINAL IN THE ABSENCE OF ANY INSTANCES PRECLUDING
THE AUTOMATIC INSTITUTION OF THE CIVIL ACTION TOGETHER WITH
THE CRIMINAL COMPLAINT (THE OFFENDED PARTY WAIVES THE CIVIL
ACTION, RESERVES THE RIGHT TO INSTITUTE IT SEPARATELY OR
INSTITUTES THE CIVIL ACTION PRIOR TO THE CRIMINAL ACTION).
Respondent's right to damages was deemed prosecuted in the criminal proceeding.
Thus, a separate civil action may no longer be prosecuted where the accused was
acquitted on the ground that the accused has not committed the crime Imputed to her.
This refers to the Civil liability arising from the crime that was deemed instituted
with the criminal.

COMPARE

did not exist, bars the filing of an independent civil action if it is based on the
crime.
Application of the rule was illustrated by Justice Relova in Marcia v. Court of
Appeals, as follows: "Otherwise stated, unless the act from which the civil liability arises
is declared to be non-existent in the final judgment, the extinction of the criminal liability
will not carry with it the extinction of the civil liability.
Thus, if a person is charged with homicide and successfully pleaded self-defense, his
acquittal by reason thereof will extinguish his civil liability. He has not incurred any criminal
liability.
On the other hand, if his acquittal is, for instance, due to the fact that he was not
sufficiently identified to be the assailant, a civil action for damages may be maintained.
His acquittal is not due to non-existence of the crime from which civil liability might arise,
but because he was not, in the eyes of the court, sufficiently identified as the perpetrator.
Where the court states that the evidence throws no light on the cause of fire and
that it was an unfortunate accident for which the accused cannot be held responsible, this
declaration fits well into the exception of the rule which exempts the accused from civil
liability.
Likewise, in Albornoz v. Albornoz,33 it was the ruling that "where the judgment in a
criminal action contains an express declaration that the basis of claimant's action did not
exist, the latter's action for civil liability is barred under Section l(d), Rule 107 of the Rules
of Court."

Where petitioner sought to enforce respondent's obligation to make good the value
of the checks in exchange for the cash he delivered to respondent such civil action may
proceed independently of the criminal proceedings and regardless of the result of the
other (under Article 31) and its filing after the dismissal of the criminal case for estafa and
maybe prosecuted without violating the rule against forum shopping, since they are based
on different causes of action, expressly allowed by law.

In a prosecution for estafa or swindling through falsification of a

commercial document, the civil is deemed instituted with the criminal where the
in the absence of any instances precluding the automatic institution of the civil
action together with the criminal complaint (the offended party waives the civil
action, reserves the right to institute it separately or institutes the civil action
prior to the criminal action).

The dismissal of the criminal case is not res judicata even if the civil is alleged to
arise from delict, since the nature of the cause of action is determined by the facts alleged
in the complaint as constituting a cause of action.

Respondent's right to damages was deemed prosecuted in the criminal

proceeding.

What Civil Action Is Extinguished

The rule of extinction was limited to civil actions based on culpa criminal
and does not include culpa aquiliana or quasi-delict.
This was the teaching ofElcano v. Hill, where it was expressly held that the
extinction of the civil liability referred to in par. (c), Sec. 2 of Rule 111 refers
exclusively to civil liability arising from crime; whereas, the civil liability for the
same act considered as a quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. In other
words, an acquittal based on the finding that the facts upon which civil liability

Thus, a separate civil action may no longer be prosecuted where the

accused was acquitted on the ground that the accused has not committed the
crime imputed to her.
Civil Actions Not Based on Crime Not Extinguished

Acquittal in a criminal action bars the civil arising therefrom where the
judgment of acquittal holds that the accused did not commit the criminal acts
imputed to him.
As earlier ruled by the Supreme Court, the civil liability that is deemed
extinguished is the civil liability based on crime.
106

But not the civil liability based on sources of obligation other than the
criminal offense although arising from the same act or omission.
The second sentence of Section 3(b) before under the 1985 Rules provides
that in other cases, the person entitled to the action may institute it in the
jurisdiction and in the manner provided by law against the person who may be
liable for restitution of the thing and reparation or indemnity for the damage
suffered.
The rule clearly contemplates the filing of a separate civil action. Article 29
of the Civil Code expressly provides that when the accused in a criminal
prosecution is acquitted on the ground that his guilt has not been proved beyond
reasonable doubt, a civil action for damages for the same act or omission may
be instituted.
Such action requires only a preponderance of evidence.
The civil liability therefor under Articles 32,33, 34 and 2176 or those where
the source of civil obligation is not based on the criminal offense is not affected
by the result of the criminal action.
In other words, the extinction of the civil liability referred to in par. (e) of
Section 3, Rule 111 (1964 Rules), refers exclusively to civil liability founded on
Article 100 of the Revised Penal Code, whereas the civil liability for the same act
considered as a quasi-delict only and not as a crime is not extinguished even by
a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused.
Briefly stated, culpa aquiliana includes voluntary and negligent acts which
may be punishable by law.
It results, therefore, that the acquittal of Reginal Hill in the criminal case
has not extinguished his liability for quasi-delict, hence that acquittal is not a bar
to the instant action against him.
Criminal Actions To Recover Civil Liability Arising From Delict and Civil Actions Based on
Quasi-Delict may Proceed Simultaneously

Thus, a civil action arising from the crime charged and a civil action with
the civil code provisions as the source of obligation may proceed simultaneously
and independently of each other, and a favorable and unfavorable judgment in
either case cannot be considered as a bar to the other.
A private prosecutor may intervene in the criminal action without waiving
the right to file a separate civil action under Articles 32, 33, 34 and 2176
regardless of the result of the criminal action.

On the issue of whether or not an action for damages arising from a

vehicular accident may plaintiff recover damages against the employer of the
accused driver both in the criminal case (delict) and the civil case for damages
based on quasi-delict, but not recover twice for the same act, the court wrote:
"Consequently, a separate civil action for damages lies against the offender in a
criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally, to
recover damages on both sides, and would be entitled in such eventuality only to the
bigger award of the two, assuming the awards made in the two cases vary."
Extinction of Penal Does not Extinguish Civil Liability

In Mendoza v. Arrieta, it was held that where the acquittal was not based
upon reasonable doubt, a civil action for damages can no longer be instituted.
It was clarified in Gula v. Dianila, that Mendoza v. Arrieta was based on
culpa criminal for which reason "we held the suit for damages barred."
Since the cause of action of plaintiff-appellant is based on culpa aquiliana
and not culpa criminal thus precluding the application of the exception in Sec.
3(c) of Rule 111 and the fact that it can be inferred from the criminal case that
accused was acquitted on reasonable doubt because of dearth of evidence and
lack of veracity of the two principal witnesses, the doctrine in Mendoza v.
Arrieta, will not find application.
This provision clearly provides for a separate civil action for restitution,
reparation and indemnity for the damages suffered by the offended party
without reference to the source of the obligation but was held to refer to Article
29 of the Civil Code which provides that when the accused in a criminal
prosecution is acquitted on the ground that his guilt has not been proved beyond
reasonable doubt, a civil action for damages for the same act or omission may
be instituted.
A quasi-delict or culpa aquiliana is a separate legal institution under the
Civil Code, with a substantivity all its own, and individuality that is entirely apart
and independent from a delict or crime.
A distinction exists between the civil liability arising from a crime and the
responsibility for quasi-delict or culpa contractual.
The same negligence causing damages may produce civil liability arising
from a crime under the Penal Code, or create an action for quasi-delicto or culpa
extra-contractual under the Civil Code.
Therefore, the acquittal or conviction in the criminal case is entirely
107

irrelevant in the civil case.

sense.

Effect of 1988 Amendment and The Revised Rules on Criminal Procedure

It includes consummated, frustrated and attempted homicide and death

arising from delict which includes reckless imprudence or quasi-delict.

Given the 1988 amendments, where the accused is acquitted on the

ground that his guilt has not been established beyond reasonable doubt or that
the obligation is purely civil without the court making a finding on the civil
liability of the accused in favor of the offended party, what would be the effect of
such judgment on the civil aspect of the case. Will the foregoing rulings
permitting the prosecution of a separate civil action still apply?
In Heirs of the Late Teodoro Guaring v. Court of Appeals, the court wrote
that Sec. 2(b), Rule 111 of the Rules of Criminal Procedure which provides that
extinction of the penal action does not carry with it extinction of the civil, unless
the extinction proceeds from a declaration in a final judgment that the fact from
which the civil might arise did not exist" and that this rule contemplates a civil
action arising from a crime and not a civil action arising from a quasi delict.
The court underscored the statement in Tayag v. Alcantara, that the civil
liability for the same act considered as a quasi delict only and not as a crime is
not extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed.
Further cited by the court to the same effect is Gula u. Dianala.
In Bunag v. Court of Appeals, a separate action for Damages based on
forcible abduction with rape was allowed despite prior dismissal of case by the
Fiscal at the preliminary investigation stage.
Jurisdiction of Court to Pass upon Motion for Reconsideration of Offended
Party in Connection with Civil Liability Despite Appeal by Accused
If the court, independently of the appeal of the accused, has jurisdiction,
within fifteen days from the date of the judgment, to allow the appeal of the
offended party, it also has jurisdiction to pass upon the motion for
reconsideration filed by the private prosecution in connection with the civil
liability of the accused.

Consolidation of Criminal and Civil Cases

Libel A criminal case for libel and a separate and independent civil
action to enforce the civil liability arising from the libel may be consolidated for
joint trial, where the two (2) cases involve common or identical questions of fact
and law, and would even have the same witnesses; and thus avoid multiplicity of
suits, prevent delay, clear congested dockets, and save unnecessary costs and
expenses, and simplify the work of the trial court.
In fact Mckee v. IAC stressed the need for consolidation of criminal and
civil actions to prevent conflicting decisions.
The final decision of guilt in criminal action is not relevant to civil action
based on quasi-delict.
There is no legal impediment against such consolidation.
Section 1, Rule 31 of the Rules of Court which seeks to avoid multiplicity of
suits, guard against oppression and abuse, prevent delays, clear congested
dockets to simplify the work of the trial court, or in short, attain justice with the
least expense to the parties litigant, would have easily sustained a
consolidation, thereby preventing the unseeming, if not ludicrous, spectacle of
two (2) judges appreciating, according to their respective orientation, perception
and perhaps even prejudice, the same facts differently, and thereafter rendering
conflicting decisions.
A civil case for replevin may proceed independently of the criminal cases
for falsification and grave coercion.
While both cases are based on the same facts, the quantum of proof
required for holding the parties liable therein differ.

SEC. 3.
When Civil Action may Proceed Independently

SEC. 4.
Effect of Death on Civil Actions

The civil action which should be suspended after the institution of the
criminal action is that arising from delict and not the civil action based on quasidelict or culpa aquiliana.
Parenthetically, "physical injuries" under Article 33 is used in a generic

Death of Accused on Appeal

The death of the accused after arraignment and during the pendency of
the criminal action shall extinguish the civil liability arising from the delict.
108

In Torrijos v. Court of Appeals,' a case of estafa, where despite the death of

the accused during the pendency of his appeal, which thereby extinguished his
criminal liability, the appeal was allowed to proceed with respect to the issue of
civil liability of the accused (arising from a contract of purchase and sale).
(The rule was not observed in People v. Satorre, where the case for Murder
was dismissed in view of the death of the appellant.)
However, in People u. Salcedo, where the accused in a murder case died
during appeal, the case was dropped with respect to his criminal liability only.
This was followed by People v. Sendaydiego a case of malversation thru
falsification, where it was held that despite the death of the accused, the
Supreme Court can continue to exercise appellate jurisdiction over an accused's
possible civil liability for the money claims of the claimants arising from criminal
acts complained of, as if no criminal case has been instituted against him, thus
making applicable, in determining his civil liability, Article 30 of the Civil Code.
When a separate civil action is brought to demand civil liability arising from
a criminal offense, and no criminal proceedings are instituted during the
pendency of the civil case, preponderance of evidence shall likewise be
sufficient to prove the act complained of.)

Thus, as every crime gives rise to a penal or criminal action for the
punishment of the guilty party, and also to a civil action for the restitution of the
thing, repair of the damage and indemnification for the losses whether the
particular act or omission is done intentionally or negligently or whether or not
punishable by law, subsequent decisions of the Supreme Court held that while
the criminal liability of an appellant is extinguished by his death, his civil liabil ity
subsists.
In such case, the heirs of the deceased appellant are substituted as parties
in the criminal case and his estate shall answer for his civil liability.
ABANDOMENT OF SENDAYDIEGO; DEATH OF ACCUSED PENDING
APPEAL EXTINGUISH CIVIL LIABILITY BASED ON CRIME
People v. Bayotas, overruled People v. Sendaydiego, where it was held that
despite the death of the accused during the pendency of the appeal, the
proceedings shall continue for the purpose of determining his civil liability
arising from the crime.
The Supreme Court en bane held in Bayotas (which is a case of rape) that:
"1. Death of the accused pending appeal of his conviction extinguishes his
criminal liability as well as the civil liability based thereon.

The Supreme Court further stated that Sendaydiego's appeal will be

resolved only for the purpose of showing his criminal liability which is the basis
of the civil liability for which his estate would be liable.
Though the death of an accused-appellant during the pendency of an
appeal extinguished his criminal liability, his civil liability survives.

As opined by Justice Regalado, in this regard, the death of the accused

prior to final judgment terminates his criminal liability and only the civil
liability directly arising from and based solely on the offense committed, i.e.,
civil liability ex in senso strictiore.
2.

Extinction of criminal liability does not necessarily mean that the civil
liability is also extinguished.

Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or
omission:

In People v. Navoa, and in People v. Sendaydiego, the Supreme Court ruled

that only the criminal liability (including the fine, which is pecuniary, but not
civil) of the accused is extinguished by his death, but the civil liability remains.

a.
b.
c.
d.

The claim of the government for the civil liability survives but only if the
offense can be proved.
The Supreme Court continues to exercise appellate jurisdiction over the
petitioner's possible civil liability for the money claims of the government arising
from the alleged criminal acts complained of, in much the same way as when no
criminal action had been filed. No separate civil action need be instituted.

Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other
than delict.

3.

109

Law
Contracts;
Quasi-contracts; xx x; and
Quasi-delicts.

Where the civil liability survives, as explained in Number 2 above, an action

for recovery therefor may be pursued but only by filing a separate civil
action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal
Procedure as amended.

This separate civil action may be enforced either against the

executor/administrator or the estate of the accused depending on the
source of obligation upon which the same is based as explained above.

SEC. 5.
Judgment in Civil Action not a Bar
COMMENT:

4.

Finally, the private party need not fear a forfeiture of his right to file this
separate civil action by prescription, in cases where during the prosecution
of the criminal action and prior to its extinction, the private offended party
instituted together with the civil action.
In such case, the statute of limitations on the civil liability is deemed
interrupted during the pendency of the criminal case, conformably with the
provisions of Article 1155 of the Civil Code, that should thereby avoid any
apprehension on a possible deprivation of right by prescription.

Thus the Supreme Court applying this set of rules to the case at bench held
that the death of the appellant extinguished his criminal liability and the civil
liability based solely on the act complained of, i.e., rape. Consequently, the
appeal was dismissed."

WHILE EVERY PERSON CRIMINALLY LIABLE IS ALSO CIVILLY LIABLE, THE

CONVERSE IS NOT TRUE.
EXTINCTION OF THE PENAL DOES NOT CARRY WITH IT EXTINCTION OF
THE CIVIL UNLESS THE EXTINCTION PROCEEDS FROM A DECLARATION
IN A FINAL JUDGMENT THAT THE FACT FROM WHICH THE CIVIL MIGHT
ARISE DID NOT EXIST.
Similarly, a final judgment rendered in a civil action absolving the defendant from
the civil liability is no bar to a criminal action unless the civil is a prejudicial question which
involves an issue similar or intimately related to the issue raised in the criminal, the
resolution of which determines whether or not the criminal action may proceed.

SEC. 6.
Suspension by Reason of Prejudicial Question

Bayotas was reiterated in People v. Rosalijos,ll where during the pendency

of the appeal convicting the accused of murder, the latter died, the court
ordered the dismissal of the criminal liability of accused and ordered the
substitution of his heirs as to the civil liability.
However, in light of Bayotas, the appeal was dismissed both as to the
criminal and civil aspects thereof.
The ruling in Bayotas and its progeny which require the filing of a separate
civil action arising from the same act or omission where the accused dies during
the pendency of the action was criticized since these civil actions are deemed
impliedly instituted with the criminal action unless reserved waived or a
separate civil action was filed.
COMMENT ON THE NEW RULE
The original proposal of the Committee was to modify Bayotas. The proposal was for
the Court to continue in the same proceedings vith the other civil actions that were
deemed impliedly instituted vith the criminal, despite the death of the accused. Since,
however, he Revised Rules on Criminal Procedure limited the civil liability leemed
instituted with the criminal action to the civil liability aris-ng from the offense, there is no
more need for the proposal since with the death to the accused, the civil liability arising
from the offense is also extinguished. The rule was, however, retained by the Court to
apply to the separate civil actions under Section 3 of the same Rule. This would, however,
only apply if these actions are consolidated with the criminal. Otherwise, since these are
purely civil actions, the effects of death should be governed by the Rules on Civil
procedure.16

SEC. 7.
Elements of Prejudicial Question
Section 7 limits a prejudicial question to a "previously instituted civil
action" in order to minimize possible abuses by the subsequent filing of a civil
action as an afterthought for the purpose of suspending the criminal action.
a.

The rule on precedence of the criminal action does not apply when the civil
action is a prejudicial question.1

b.

Prejudicial question is an exception to precedence of criminal case.

Prejudicial Question, Defined: Elements of a Prejudicial Question

According to jurisprudence, a prejudicial question involves a similar issue in

a civil action which was pending when the criminal action was instituted or
before the amendment, in a civil action filed after the institution of the criminal
action.
It is one based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of the
accused, and for it to suspend the criminal action, it must appear not only that
said case involves facts intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of the issue or issues
110

raised in the civil case, the guilt or innocence of the accused would necessarily
be determined.

owner against a person claiming co-ownership of the land leased whose

claim is pending in an intestate proceeding."

The doctrine of prejudicial question comes into play generally in a situation

where civil and criminal actions are pending and the issues involved in both
cases are similar or so closely-related that an issue must be pre-emptively
resolved in the civil case before the criminal action can proceed.
Thus, the existence of a prejudicial question in a civil case is alleged in the
criminal case to cause the suspension of the latter pending final determination
of the former.

Even if the Intestate Court should annul the project of partition and
uphold private respondent's ownership of the lots herein, that would not be
determinative of the criminal responsibility of private respondents for theft
of the standing sugar crop, which petitioner claims he has planted in good
faith by virtue of a valid contract of lease with the mortgagee.
c.

Where the civil case is not based on a fact distinct and separate from the
estafa, as both actions arose from the same fact or transaction, the former does
not constitute ,a prejudicial question, for the determination of the criminal
action.

Pendency of action for damages based on illegal possession of property

not a prejudicial question to the charge of theft filed by the alleged lessee
against the plaintiff in the damage suit.

CASES
a.

An Action for Nullity of a Deed of Sale Based on the Ground that It is a

Forgery and is Spurious is Prejudicial to a Criminal Action for Estafa based
on the Execution of said Sale

As the two cases are based on the same facts, and the entitlement to
damages being predicated on the unlawful taking treated of in the Criminal
Action, no necessity arises for that civil case to be determined ahead of the
Criminal Action.

For a civil case to be considered prejudicial to a criminal action as to

cause the suspension of the criminal action pending the determination of
the civil, it must appear not only that the civil case involves the same facts
upon which the criminal prosecution is based, but also that the resolution of
the issue raised in said civil action would be necessarily determinative of the
guilt or innocence of the accused.

Stated differently, the issues raised in the civil cases do not involve the
pivotal question of who planted the sugarcane and, therefore, are not
determinative juris et de jure of guilt or innocence in the Criminal Action.
If as the Guanteros contend, they were the ones who did the planting,
that is a matter of defense that may be interposed by them in the Criminal
Action.

Where the defense (as defendant) in the civil case of the nullity and
forgery of the alleged prior deed of sale in favor of plaintiff in the civil case
and complaining witness in the criminal case is based on the very same
facts which would be necessarily determinative of the guilt or innocence as
accused in the criminal case, the civil case constitutes a prejudicial question.

It is not an issue that must be preemptively resolved in the civil case

before proceedings in the Criminal Action may be undertaken.
d.

If the first alleged sale is void or fictitious, then there would be no

double sale and petitioner would be innocent of the offense charged.
A conviction in the criminal case (if it were allowed to proceed ahead)
would be a gross injustice and would have to be set aside if it were finally
decided in the civil action that indeed the alleged prior deed of sale was a
forgery and spurious.
b.

Ejectment: Pendency of an ejectment case does not constitute a prejudicial

question to the charge of the theft filed by alleged lessee against a person
claiming co-ownership rights with the lessor, for illegal harvest of sugarcane
on land leased.

A civil action for accounting and recovery of sum of money are not
determinative of the innocence or guilt of petitioner in the prosecution for
seventy-five (75) counts of estafa
The issues in the civil case for accounting and recovery of sums of
money are not determinative of the innocence or guilt of the petitioner in
the prosecution of the seventy-five (75) counts of estafa.
* * * the only question to be resolved in the criminal cases for estafa is whether or not
the petitioner's acts of receiving and collecting monies from the customers in
payment for goods purchased, and failing to immediately account for and deliver the
said collections having deposited them in his own personal bank accounts constitute
estafa under Article 315(l-b) of the Revised Penal Code.

The pendency of an intestate proceeding will not constitute a prejudicial

action in a criminal case for Theft of standing crops filed by a person
claiming to have a valid contract of lease on the property from its legal
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* * * a finding in the civil case for accounting and recovery of a sum of money is
not juris et de jure determinative of the innocence of the petitioner in the subsequent
seventy-five (75) criminal cases of estafa filed against him.

e.

A civil case for Annulment of Deed of Sale not prejudicial to Criminal Case
for Estafa Arising from Issuance of Rubber Check."
At the time the acts complained of in CR No. 1423-1 were committed,
the deed of sale sought to be later annulled in CV No. 8769 was binding
upon the parties thereto, including the petitioners.
The two (2) essential elements for a prejudicial question to exist are:
(a) the civil action involves an issue similar or intimately related to the issue
raised in the criminal action; and
(b) the resolution of such issue in the civil action determines whether or not
the criminal action may proceed.
As correctly observed by the appellate court, the issue in CR No. 14231 is whether or not the petitioners could be found guilty under Batas
Pambansa Big. 22 or under Article 315, No. 2(d) of the Revised Penal Code.
More specifically, what private respondents complained of in CR No.
1423-1 is that the Checks issued by petitioners in their favor were
dishonored for lack of funds upon due presentment to the drawee bank.
Undeniably, at the time of said dishonor, petitioners' obligation to pay
private respondents pursuant to the deed of sale, continued to subsist.
And because petitioners' checks were dishonored for lack of funds,
petitioners are answerable under the law for the consequences of their said
acts.

damages. Later, at the instance of the cooperative, several informations for estafa were
filed against her before the municipal court.
After pleading not guilty to the estafa charges, Godofreda moved to suspend the
proceedings in the criminal case on the ground that the collection suit is a prejudicial
question.
HELD:
a. No prejudicial question exists.
The issue in the civil action is the cooperative's right to recover from Godofreda the
amount allegedly embezzled by the latter.
The issue in the criminal case is whether her failure to account for her collections as
a teller constitutes estafa under Article 315 of the Revised Penal Code.
A finding in the civil case for or against Godofreda is not juris et dejure determinative
of her innocence or guilt in the estafa cases.

B. MOREOVER ARTICLE 33 OF THE CIVIL CODE EXPLICITLY STATES THAT

IN CASE OF DEFAMATION, FRAUD AND PHYSICAL INJURIES A CIVIL
ACTION FOR DAMAGES, ENTIRELY SEPARATE AND DISTINCT FROM THE
CRIMINAL ACTION, MAY BE BROUGHT BY THE INJURED PARTY.
Such civil action shall proceed independently of the criminal prosecution and shall
require only a preponderance of evidence.
c. Article 33 manifests that as between the civil and crimi nal cases arising from the
same fraudulent act, the doctrine of the prejudicial question cannot be invoked as both
cases may proceed independently of each other, i.e., in the same way that the civil suit
can be tried, so must the criminal prosecution run its course.
When Action for Annulment of Marriage Prejudicial to Bigamy Case

a.

And even if CV No. 8769 were to be finally adjudged to the effect that
the said deed of sale should be annulled, such declaration would be of no
material importance in the determination of the guilt or innocence of
petitioners-accused in CR No. 1423-1.

A civil action involving the nullity of a second marriage is of prejudicial

character and should be resolved before the criminal case for bigamy.
Likewise, a civil action involving title to property should first be decided
before a criminal action for damages to said property.
The reason is that in said cases the procedure in a civil proceeding and
not of the criminal case is more fitted to decide, as for example, the issue of
validity or nullity of the marriage.

A Civil Case for the Collection of a Sum of Money Allegedly Embezzled is not a Prejudicial
Question to the Criminal Action arising from the same Acts of Embezzlement

But in all such cases the prejudicial civil question refers to a dispute of
purely civil character but connected in such manner to the crime on which
the criminal case is based and is determinative of the guilt or innocence of
the accused.

Thus, as teller authorized to receive payments of electric bills from the electric
cooperative's customers, Godofreda allegedly embezzled to her own use money collected
from different consumers.
When she refused to pay the amount defrauded, the cooperative sued her for

112

A civil action filed by the husband involving the nullity of a second

marriage is of prejudicial character and should be resolved before the
criminal case for bigamy.

In order that the case of annulment of marriage be considered a

prejudicial question to the bigamy case against the accused, it must be
shown that the accused's consent to such marriage must be the one
that was obtained by means of duress, force and intimidation to show
that his act in the second marriage must be involuntary and cannot be
the basis for his conviction for the crime of bigamy.

In such a case, the prejudicial civil question refers to a dispute of

purely civil character but connected in such manner to the crime on which
the criminal case is based and is determinative of the guilt or innocence of
the accused.

The situation in the second case is markedly different.

The rule does not, however, apply where the complaint for annulment
was filed by the wife. Thus:

At the time petitioner was indicted for bigamy, the fact that two
marriage ceremonies have been contracted appeared to be
indisputable.

"a) The filing, while the bigamy case is pending, of a civil action by the
woman in the second marriage for its annulment by reason offeree and
intimidation upon her by the man, is not a bar or defense to the criminal
action.

And it was the second spouse, not the accused who filed the action for
nullity on the ground of force, threats and intimidation, x x x
Assuming that the first marriage was null and void on the ground alleged
by the accused, that fact would not be material to the outcome of the
criminal case.

The civil action does not decide that he entered the marriage against his
will and consent, because the complaint therein does not allege that he
was the victim of force and intimidation in the second marriage.

Parties to the marriage should not be permitted to judge for themselves

its nullity, for the same must be submitted to the judgment of the
competent courts and only when the nullity the marriage is so declared
can be held as void, and so long as there is no such declaration the
presumption is that the marriage exists.

It was he who used the force or intimidation and he may not use his own
malfeasance to defeat the action based on his criminal act."
b.

So also is an annulment of marriage filed by the first wife not prejudicial

to bigamy.

c.

In Landicho v. Hon. Reloua, the first wife charged the accused with
Bigamy for contracting a second marriage without first dissolving their
marriage.

Therefore, he who contracts a second marriage before the judicial

declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy.
d)

The second wife, likewise, filed an annulment of her marriage with the
accused on the ground offeree, threats, and intimidation allegedly
employed by accused and because of its allegedly bigamous character.

Donato v. Luna Leonilo was charged with bigamy in the Court of First
Instance.
The information was based on the complaint of Paz. Before Leonilo could
be arraigned, Paz filed with the Domestic Relations Court a civil action
for declaration of nullity of her marriage with Leonilo, contracted in
1978.

Accused filed a third party complaint against the first wife praying that
his first marriage be declared null and void on the ground that his
consent to the first marriage was obtained by means of threats, force,
and intimidation, and moved for the suspension of the bigamy case
pending decision on the validity of the two marriages.

She alleged that she consented to entering into the marriage, since she
had no previous knowledge that Leonilo was already married to
Rosalinda.

The Court held that the mere fact that there are actions to annul the
marriage entered into by the accused in a bigamy case does not mean
that "prejudicial questions" are automatically raised in civil actions to
warrant the suspension of the criminal case.

Donato interposed the defense that his second marriage was void since
it was solemnized without a marriage license and that force was
employed by Paz to get Leonilo's consent to the marriage.
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Before the second marriage was solemnized, Leonilo and Paz had lived
together as husband and wife, without the benefit of wedlock for at least
five years, for which reason, the requisite marriage license was
dispensed with pursuant to Article 76 of the New Civil Code.

1)

Under Article 40 of the Family Code: "The absolute nullity of a previous

marriage maybe invoked for purposes of remarriage on the basis solely of a
final judgment declaring such marriage void.

Before the criminal case could be tried, Leonilo moved to suspend the
proceedings on the ground that the annulment case raises a prejudicial
question, which must be determined before the criminal case can
proceed.

So that in a case for concubinage, the accused need not present a final
judgment declaring his marriage void for he can adduce evidence in the
criminal case of the nullity of his marriage other than proof of a final
judgment declaring his marriage void.

The trial court denied the motion to suspend the proceedings, citing
Landicho v. Relova.

The Court, however, hastened to add that even if his marriage is void
from the beginning the subsequent pronouncement that his marriage is void
from the beginning is not a defense, citing Landicho u. Relova, cited in
Donate v. Luna," holding that "so long as there is no such declaration (of
nullity) the presumption is that the marriage exists.

The Supreme Court sustained the trial judge.

The issue before the Domestic Relations Court touching upon the nullity
of the second marriage is not determinative of Leonilo's guilt or
innocence in the crime of bigamy.
Furthermore, it was Paz, Leonilo's second wife, who filed the complaint
for annulment of the Second marriage on the ground that her consent
was obtained through deceit.

to criminal prosecution for concubinage

Therefore, he who contracts a second marriage before the judicial

declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy.
2)

Leonilo cannot apply the rule on prejudicial question since a case for
annulment of marriage can be considered a prejudicial question to the
bigamy case against the accused only if it is proved that Leonilo's
consent to such marriage was obtained by means of duress in order to
establish that his act in the subsequent marriage was an involuntary
one and as such, the same cannot be the basis for conviction.

to criminal prosecution for bigamy

A declaration of the nullity of the second marriage on the ground of
psychological incapacity is of absolutely no moment insofar as the State's
penal laws are concerned.
As a second or subsequent marriage contracted during the subsistence
of petitioner's valid marriage to Villareyes, petitioner's second marriage to
Ancajas would be null and void ab initio completely regardless of petitioner's
psychological capacity or incapacity.

Obviously, Leonilo merely raised the issue of prejudicial question to

evade the prosecution of the criminal case. Prior to Leonilo's second
marriage, he had been living with Paz as husband and wife for more
than five years without the benefit of marriage.

Since a marriage contracted during the subsistence of a valid marriage

is automatically void, the nullity of this second marriage is not per se an
argument for the avoidance of criminal liability for bigamy.

Thus, Leonilo's averments that his consent was obtained by Paz through
force and undue influence in entering a subsequent marriage is belied
by the fact that both he and Paz executed an affidavit which stated that
they had lived together as husband and wife without benefit of marriage
for five years, one month and one day until their marital union was
formally ratified by the second marriage and that it was Paz who
eventually filed the civil action for nullity.

Pertinently, Article 349 of the Revised Penal Code criminalizes "any

person who shall contract a second or subsequent marriage before the
former marriage has been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a judgment rendered in the
proper proceedings."
A plain reading of the law, therefore, would indicate that the provision
penalizes the mere act of contracting a second or a subsequent marriage
during the subsistence of a valid marriage.

An Action for declaration of nullity of marriage on ground of psychological

incapacity is not a prejudicial question
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Thus, as soon as the second marriage was celebrated during the

subsistence of the valid first marriage, the crime of bigamy had already
been consummated.
There is no cogent reason for distinguishing between a subsequent
marriage that is null and void purely because it is a second or subsequent
marriage, and a subsequent marriage that is null and void on the ground of
psychological incapacity, at least insofar as criminal liability for bigamy is
concerned.
The State's penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between
spouses, and punish an individual's deliberate disregard of the permanent
character of the special bond between spouses, which petitioner has
undoubtedly done.
Although the judicial declaration of the nullity of a marriage on the
ground of psychological incapacity retroacts to the date of the celebration of
the marriage insofar as the vinculum between the spouses is concerned, it is
significant to note that said marriage is not without legal effects.
Among these effects is that children conceived or born before the
judgment of absolute nullity of the marriage shall be considered legitimate.
There is therefore a recognition written into the law itself that such a
marriage, although void ab initio, may still produce legal consequences.
Among these legal consequences is incurring criminal liability for
bigamy.
To hold otherwise would render the State's penal laws on bigamy
completely nugatory, and allow individuals to deliberately ensure that each
marital contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages, while beguiling throngs of
hapless women with the promise of futurity and commitment.
There is no prejudicial question where one case is administrative and the other is civil

The dismissal of the administrative case does not necessarily bar the filing
of a criminal prosecution for the same or similar acts which were the subject of
the administrative complaint.
A pending civil case may, however, be considered to be in the nature of a
prejudicial question to an administrative case.
In proper cases, a pending administrative case may also be considered in
the nature of a prejudicial question to a civil case.
Thus, an administrative case between parties involving a parcel of land
subject matter of an ejectment case is a prejudicial question which would
operate as a bar to said ejectment case.
Thus, it has been held that the question of ownership which is pending in a
civil case a prejudicial question justifying suspension of proceedings in the
criminal case for violation of the Anti-Squatting Law.
OTHER CASES

An action to cancel copyright is not prejudicial to criminal prosecution for

infringement of copyright.
A civil action of replevin is not prejudicial to theft.
Where the issue before the Court of Appeals is the authenticity of a motion
to withdraw which at the same time is the object of a falsification charged
pending in CFI, there is a prejudicial question involved in the civil case which
justifies the suspension of the criminal case.
Pisalban u. Tesoro, a criminal case for falsification of an affidavit presented
in a cadastral case should not be suspended to await termination of civil case.
If at all, it should be the latter that should be suspended.
A civil action instituted to resolve whether the designations of certain
persons as sectoral representatives were in accordance with law constitutes a
prejudicial question vis-a-vis a criminal case for violation of the anti-graft law
premised on the accused's partiality and evident bad faith in not paying the
former's salaries and per diem as sectoral representatives.

It has been held that one thing is administrative.

Quite another is the criminal liability.
The determination of the administrative liability for falsification of public
documents is in no way conclusive of his lack of criminal liability.

There is no prejudicial question where the outcome of the civil case is not
in any way determinative of the guilt or innocence of the respondent in the
criminal cases.
RULE 112
PRELIMINARY INVESTIGATION

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SECTION 1.
Preliminary Investigation Defined; When Required

person against whom it is taken in jeopardy.

Nature of Right to Preliminary Investigation

Formerly, the right to a preliminary investigation refers only to offenses cognizable by the
Regional Trial Court.
In view, however, of the expanded jurisdiction of the Municipal Trial Court under R.A. No.
7691, jurisdiction over certain offenses which before falls under the exclusive jurisdiction
of the Regional Trial Court were vested in the Municipal Trial Court and accordingly, under
the former rule were no longer entitled to preliminary investigation.
The present rule includes among offenses entitled to preliminary investigation those
punishable by at least four (4) years, two (2) months and one (1) day, even if the same is
cognizable by the Municipal Trial Court.

Purpose of Preliminary Investigation

As provided for in the foregoing section, the preliminary investigation should
determine whether there is a sufficient ground to engender a well-grounded
belief that a crime has been committed and that the respondent is probably
guilty thereof, and should be held for trial.
And if the evidence so warrants, the investigating prosecutor is duty bound to
file the corresponding information.
The Purposes of a Preliminary Investigation or a previous Inquiry of Some Kind are

a.

for the investigating prosecutor to determine if a crime has been committed.

b.

to protect the accused from the inconvenience, expense and burden of

defending himself in a formal trial unless the reasonable probability of his
guilt shall have been first ascertained in a fairly summary proceeding by a
competent officer.

c.

to secure the innocent against hasty, malicious and oppressive prosecution,

and to protect him from an open and public accusation of a crime, from the
trouble, expenses and anxiety of a public trial; and

d.

to protect the state from having to conduct useless and expensive trials.
Scope of Preliminary Investigation

Preliminary investigation is merely inquisitorial, and it is often the only means of

discovering the persons who may be reasonably charged with a crime, to enable
the fiscal to prepare his complaint or information.
It is not a trial of the case on the merits and has no purpose except that of
determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof, and it does not place the

Neither the 1935 nor the 1973 (or 1987) Constitution requires the holding of a
preliminary investigation.
It is a settled doctrine that the right thereto is of statutory character and may be
invoked only when specifically created by statute.
It is not a fundamental right and is not among the rights guaranteed to him in
the Bill of Rights.
It may be waived expressly or by silence.
As stated in Marcos u. Cruz, "the preliminary investigation in criminal cases is
not a creation of the Constitution; its origin is statutory and it exists and the
right thereto can be invoked when so established and granted by law.
It is so specifically granted by procedural law.
If not waived the absence thereof may amount to a denial of due process.
Thus, the right of accused (to a preliminary investigation when granted) is a
"substantial one."
Its denial over his opposition is a "prejudicial error in that it subjects the accused
to the loss of life, liberty or property without due process of law."
While that right is statutory rather than constitutional in its fundament, since it
has in fact established by statute, it is a component part of due process in
criminal justice.
The right to have a preliminary investigation conducted before being bound over
to trial for a criminal offense and, hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it is a substantive right.
The accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to
avoid a process painful to any one save, perhaps, to hardened criminals, is a
valuable right.
To deny petitioner's claim to a preliminary investigation would be to deprive him
of the full measure of his right to due process.
While a preliminary investigation is not an occasion for a full and exhaustive
display of the parties evidence, being merely an inquiry to determine whether or
116

not there is sufficient ground to engender a founded belief that a crime has been
committed and that the respondent is probably guilty thereof, the right to such
preliminary investigation is still an indispensable element of our criminal justice
system that may not be treated lightly, let alone ignored.
The right of the accused not to be brought to trial except when remanded
therefor as a result of a preliminary examination before a committing
magistrate, has been held as a substantial one.
Its denial over the objections of the accused is prejudicial error in that it subjects
the accused to the loss of life, liberty or property without due process of law.
If it is not waived may amount to a denial of due process.
As stated in a case, the Solicitor General's argument that the right to a
preliminary investigation may be waived and was in fact waived by the
petitioner, impliedly admits that the right exists.
Since the right belongs to the accused, he alone may waive its denial.

Effect of Absence of Preliminary Investigation

As the absence of a preliminary investigation is not a ground to quash the
complaint or information, the proceedings upon such information in the
Sandiganbayan should be held in abeyance and the case should be remanded to
the office of the Ombudsman for him or the Special Prosecutor to conduct a
preliminary investigation.
Thus, the absence of preliminary investigation does not affect the court's
jurisdiction over the case, but merely to the regularity of the proceedings.
Nor do they impair the validity of the information or otherwise render it
defective; but, if there were no preliminary investigation and the defendants,
before entering their plea, invite the attention of the court to their absence, the
court, instead of dismissing the information, should conduct such investigation,
or order the fiscal to conduct it.
Moreover, the absence of a preliminary investigation will not justify petitioner's
release because such defect did not nullify the information and the warrant of
arrest against him.

If he demands it, the State may not withhold it.

COMPARE:

The purpose is, however, satisfied if the accused is given all the opportunity to
submit countervailing evidence.
Probable cause merely implies probability of guilt and should be determined in a
summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront
and cross-examine his accusers to establish his innocence.
Thus, the lack of authentication of the document presented during the
preliminary investigation does not impair the validity of the investigation.
The only purpose of a preliminary investigation is "to determine whether a crime
has been committed and whether there is probable cause to believe that the
accused is guilty thereof."
The Court have maintained a consistent policy of non-interference in the
determination by the Ombudsman of the existence of probable cause, provided
there is no grave abuse in the exercise of its discretion.
While it may be true that the documents were unauthenticated, this is a matter
of defense best passed upon after a full-blown trial.
As ruled in Webb v. De Lean, "the validity and the merits of a party's defense or
accusation as well as the admissibility of testimonies and evidences are better
ventilated during the trial stage than in the preliminary investigation level."

In Rolito Go v. Court of Appeals, despite the fact that trial on the merits had
began and the prosecution had already presented four witnesses, the trial was
ordered suspended and the accused allowed to be released on bail pending the
preliminary investigation.
The right to bail was emphasized in Tolentino v. Camano, Jr.
Right May be Waived
The right to a preliminary investigation may be waived by failure to invoke the
right prior to or at least at the time of their plea.
The rule was restated in People v. Monteverde, where the Supreme Court stated:
"A PRELIMINARY INVESTIGATION IS MANDATORY AND A CERTIFICATION
THAT SUCH INVESTIGATION WAS HELD IS REQUIRED, STILL THIS RULE
DOES NOT APPLY IF THE ISSUE IS RAISED ONLY AFTER CONVICTION.
After a plea of not guilty to the information, an accused is deemed to have foregone the
right of preliminary investigation and to have abandoned the right to question any
irregularity that surrounds it."

In People v. Lambino, Lambino, before commencement of trial, demanded his

right to preliminary investigation. His motion for preliminary investigation was
denied by the trial court which, in due course of time, convicted Lambino.
On appeal, the Supreme Couri held that the trial court did not err in denying
117

Lambino's motion for preliminary investigation because said motion was filed
after he had entered a plea of not guilty and because he took no steps to bring
the matter to a higher court to stop the trial of the case.
The right to a preliminary investigation shall be deemed waived for failure to
invoke it during arraignment in People u. Valencia People v. Hubilo, People v. De
Asis, or by failing to go to Appellate Court on certiorari to question denial.
The right to a preliminary investigation may not be raised for the first time on
appeal.
Consenting to be arraigned and entering a plea of not guilty without invoking the
right to preliminary investigation is a waiver.
It should be invoked prior to or at least, at the time of the plea.
It is also deemed waived by going to trial without previously claiming that they
did not have the benefit of preliminary investigation.
It may be waived expressly or by silence.
No Waiver When Properly Invoked
A waiver, whether express or implied, must be made in clear and unequivocal
manner.
Mere failure of petitioner and his counsel to appear before the City Prosecutor
cannot be construed as a waiver of his right to preliminary investigation, where
petitioner has been vigorously invoking his right to a regular preliminary
investigation since the start of the proceedings before the City Prosecutor.

Effect of Lack of Certification

Lack of certification by the fiscal that a preliminary investigation had been
conducted does not vitiate the information, as a preliminary investigation is not
an essential part of the information.
The absence of a certification is waived by the failure to allege it before the plea.
Cases on Right to a New Preliminary Investigation Where Allegation on Complaint Is
Amended

The need to conduct a new preliminary investigation when the defendant

demands it and the allegations of the complaint have been amended, has been
more than once affirmed by the Supreme Court:
"(a) xxx, the Court finds that since the information for alleged violation of the Anti-Graft
Law was filed without any previous notice to petitioners and due preliminary investigation
thereof, and despite the dismissal of the original charge for falsification as being without
any factual or legal basis,' petitioners are entitled to a new preliminary investigation for
the graft charge, with all the rights to which they are entitled under section 1 of Republic
Act No. 5180, approved September 8, 1967, as invoked by them anew from respondent
court, viz., the submittal of the testimonies in affidavit form of the complainant and his
witnesses duly sworn to before the investigating fiscal, and the right of accused, through
counsel, to cross-examine them and to adduce evidence in their defense.
In line with the settled doctrine as restated in People v. Abejuela, respondent court shall
hold in abeyance all proceedings in the case before it until after the outcome of such new
preliminary investigation.

The right is not waived even if the accused had filed an application for bail and
arraigned over his objections and trial on the merits already began with four
witnesses having testified where accused had from the beginning demanded
that a preliminary investigation be conducted and forthwith brought the case on
certiorari to the Supreme Court.
Presumption of Regularity
The accused who alleges lack of preliminary investigation must prove such
allegation convincingly.
When it does not appear from the record that a preliminary investigation was
not granted, it must be presumed that the proceedings in the trial court were in
accordance with law.
In the absence of evidence to the contrary, the Court will presume that the fiscal
or officer who conducted the requisite investigation did so in accordance with
law.

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OTHER CASES ON WHETHER

INVESTIGATION IS NEEDED
a.

OR

NOT

ANOTHER

PRELIMINARY

In Almeda v. Villaluz, the amendment as to habitual delinquency was not

considered substantial.

If after preliminary investigation, a case is filed in the Court of First Instance

which was dismissed, the Fiscal cannot file another information charging a
different offense based on the same preliminary investigation.

d.

A new preliminary investigation is not called for where the court orders the
filing of correct information involving a cognate offense, such as unfair
competition to infringement of trademarks."

He must conduct another preliminary investigation.

e.

Where only a formal amendment was involved such as frustrated murder

to consummated murder where death of the victim supervened a
preliminary investigation is unnecessary and cannot be demanded by the
accused.

f.

If the crime originally charged is related to the amended charge such that an
inquiry into one would elicit substantially the same facts that an inquiry into
the other would reveal, a new preliminary investigation is unnecessary.

g.

In Gaspar v. Sandiganbayan, the Supreme Court pointed out that there is no

rule or law requiring the Tanodbayan to conduct another preliminary
investigation of a case under review by it.

h.

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.

The principle does not apply where the original information was not
dismissed.
b.

In Bandiala u. Court of First Instance of Misamis Occidental, where the

preliminary investigation was for robbery in band (with one of the two
accused waiving the second stage), the Court held that the provincial fiscal
could not file against the accused an information for the graver crime of
robbery with kidnapping, without giving the accused "ample opportunity at
full-blown preliminary investigation to demonstrate that what the fiscal
regards as 'kidnapping* in the legal sense was merely an incident of, and is
therefore absorbed in the crime of robbery."
The Court noted once again that "(A) preliminary investigation, it must be
borne in mind, is a practical device created by statute and by mandate of
our Rules of Court, principally for the purpose of preventing hasty, malicious
and ill-advised prosecution," and pointedly emphasized that "(T)he Rules of
Court on the matter of preliminary investigation, construed in their
intregrated entirety, direct that, in the circumstances here obtaining, the
Fiscal, if he believes that he should raise the category of the offense, must
conduct a preliminary investigation anew as to the entire charge.
Fundamental principles of fair play dictate this course of action.
The Fiscal is not allowed by the Rules of Court to wait in ambush; the role of
a Fiscal is not mainly to prosecute, but essentially to do justice to every man
and to assist the courts in dispensing that justice."
A new preliminary investigation is not, however, necessary after the
amendment of the information, where there has been no change in the
nature of the crime charged which is rebellion, and moreover, petitioner,
who was already in custody when the amended information was filed, should
have asked, but did not, for a re-investigation of said case within the period
of five days from the time he learned of the amended information.

c.

Where the amendment to an information is not substantial, there is no need

of another preliminary investigation.

Another preliminary investigation must be undertaken and thereafter, based

on the evidence adduced, a new information should be filed.
Exception to Right of Preliminary Investigation
Exception There is no right of preliminary investigation under Section 7, Rule
112 when a person is lawfully arrested unless there is waiver of the provisions of
Article 125 of the Revised Penal Code.
There is no waiver of the right to a preliminary investigation despite trial and
presentation of four (4) witnesses over the objection of the accused.
There is a right to preliminary investigation where warrantless arrest is not
lawful.
Motion for Reinvestigation Addressed to Trial Judge

A motion for reinvestigation should, after the court had acquired jurisdiction over
the case, be addressed to the trial judge and to him alone. Neither the Secretary
of Justice, the State Prosecutor, nor the Fiscal may interfere with the Judge's
disposition of the case, much less impose upon the court their opinion regarding
the guilt or innocence of the accused, for the court is the sole judge of that.
119

The private complainant cannot move for reinvestigation.

But he can appeal to the DOJ or the Ombudsman as the case maybe.
Caution by Court in Granting Reinvestigation
Courts are, however, called upon to exercise great restraint in granting any
reinvestigation with the consequent delay involved, since the weighing and
evaluation of such evidence in defense of the accused against the State's
evidence is best left to its judgment and its verdict rather than to that of the
prosecution.
To ferret out the truth, trial is to be preferred to a reinvestigation.
It cannot be denied that in the search for truth, a trial has distinct merits over a
reinvestigation.
A preliminary investigation or reinvestigation, unlike a trial, is summary in
nature.
The direct examination of witnesses is substituted by the complainant's sworn
statement and that of his witnesses, and by the counter-affidavit of the
respondent and his witnesses.
While the respondent may be present at the investigation, he has no right to
cross-examine the witnesses against him.
To ferret out the truth, therefore, a trial is to be preferred to a reinvestigation.
Rather than delay the trial of private respondents waiting for the conduct and
outcome of a reinvestigation, it is best that respondent Judge set the case for
immediate trial
As a general rule, the practice of holding in abeyance a criminal case already
filed for reinvestigation of a case filed by the fiscal upon the accused's motion to
present evidence or newly discovered evidence should be discouraged because
it generates the impression that the accused would be able to fix his case or that
it would be easier for him to manipulate and maneuver its dismissal in the
fiscal's office.

120

SEC. 2.
Officers Authorized to Conduct Preliminary Investigations
Under the B.P. Big. 129

The COMELEC may, however, deputize other prosecuting arms of

government to conduct the investigation and prosecute the offense in Court
b.

SEC. 37. Preliminary Investigation. Judges of Metropolitan Trial Courts, except those in
the National Capital Region, of Municipal Trial Courts, and Municipal Circuit Trial Courts
shall have authority to conduct preliminary investigation of crimes alleged to have been
committed within their respective territorial jurisdictions which are cognizable by the
Regional Trial Courts.

This means that the COMELEC is empowered to conduct preliminary

investigation in cases involving, election offenses for the purpose of helping
the Judge determine probable cause and for filing an information in court.
This power is exclusive with COMELEC, whether it involves a private
individual or public officer or employee, and in the later instance,
irrespective of whether the offense is committed in relation to his official
duties or not.

The preliminary investigation shall be conducted in accordance with the

procedure prescribed in Section 1, paragraphs (a), (b), (c), and (d) of Presidential
Decree No. 911;

In other words, it is the offender that matters.

Provided, however. That he shall forward the records of the case if after the
preliminary investigation the Judge finds a prima facie he shall forward the
records of the case to the Provincial/City Fiscal for the filing of the corresponding
information with the proper court.

As long as the offense is an election offense, jurisdiction over the same rests
exclusively with the COMELEC in view of its all-embracing power over the
conduct of elections.

No warrant of arrest shall be issued by the Judge in connection with any criminal
complaint filed with him for preliminary investigation, unless after an
examination in writing and under oath or affirmation of the complaint and his
witnesses, he finds that a probable cause exists.

Hence, the Provincial Prosecutor, as such assumes no role ii the prosecution

of election offenses.
If the Fiscal or Prosecutor file; an information charging an election offense or
prosecutes a violation of election law, it is because he has been deputized
by the COMELEC.

Any warrant of arrest issued in accordance herewith may be served anywhere in

the Philippines.
The Supreme Court has expanded the offenses offense where the penalty
prescribed by law is at least four (4) years, two (2) months and one (1) day
without regard to the fine even if it is cognizable by municipal trial courts.
The provisions ofP.D. No. 911 had been incorporated in Section 3.
A.M. No. 05-8-26-SC (Effective October 3, 2005) removed the authority of first
level judges to conduct preliminary investigations.
Upon effectivity of the amendments, first level courts shall no longer accept new
cases for preliminary investigation, which fall under the exclusive jurisdiction of
other levels.
Other Persons Authorized to Conduct Preliminary Investigation

a.

The COMELEC is vested with power and authority to conduct preliminary

investigations of all election offenses punishable under the Omnibus Election
Code and to prosecute offenses in court.

The 1987 Constitution mandates the COMELEC not only to investigate but
also to prosecute cases of violation of election laws

He does not do so under the sole authority of his office.

Preliminary Investigation of Sandiganbayan Case! a. Office of the Ombudsman

The Ombudsman is clothed with authority to conduct preliminary investigation

and to prosecute all criminal cases involving public officers and employees, not
only those within the jurisdiction of the Sandiganbayan, but those within the
jurisdiction of the regular court as well.
The authority of the Ombudsman to investigate and prosecute offenses
committed by public officers and employees is founded in Section 15 and
Section 11 of R.A. No. 6770.
Section 15 vests the Ombudsman with the power to investigate and prosecute
any act or omission of any public officer or employee, office or agency, when sue
act or omission appears to be illegal, unjust, improper or inefficient
The power to investigate and to prosecute granted by law to the Ombudsman is
plenary and unqualified.
121

cases not cognizable by the Sandiganbayan.

It pertains to any act or omission of any public officer or employee when such
act or omission appears to be illegal, unjust, improper or inefficient.
The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts.
It has been held that the clause "any illegal act or omission of any pub lic official"
is broad enough to embrace any crime committed by a public officer or
employee.
The reference made by R.A. No. 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4)
granting the Special Prosecutor the power to conduct preliminary investigation
and prosecute criminal cases within the jurisdiction of the Sandiganbayan,
should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.

With respect to cases cognizable by the Sandiganbayan, the ombudsman has

primary authority to investigate and exclusive authority to file and prosecute
Sandiganbayan cases
Section 5, Rule II of Administrative No. 8 of the Office of the Ombudsman
provides that: "Cases falling under the jurisdiction of the Office of the
Ombudsman which are. cognizable by municipal trial courts, including those
subject to the Rule on Summary Procedure may only be filed in court by
Information approved by the Ombudsman, or the proper Deputy Ombudsman in
all other cases."
Under Republic Act No. 6770, the power to investigate and prosecute cases
which are cognizable by the Sandiganbayan is now lodged with the
Ombudsman.
This includes Ombudsman cases which are cognizable by regular courts.
The Office of the Special Prosecutor (The Tanodbayan)

Section 15 of R.A. No. 6770 gives the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing the Ombudsman "to
take over, at any stage, from any investigatory agency of the government, the
investigation of such cases."
The grant of this authority does not necessarily imply the exclusion from its
jurisdiction of cases involving public officers and employees cognizable by other
courts.

As a new Office of the Ombudsman was established, the then existing

Tanodbayan became the Office of the Special Prosecutor which continued to
function and exercise its powers provided by law, except those conferred on the
Office of the Ombudsman created under the 1987 Constitution.
Distinction between Office of the Ombudsman and Office of the Special Prosecutor

a.

The exercise by the Ombudsman of his primary jurisdiction over cases

cognizable by the Sandiganbayan is not incompatible with the discharge of his
duty to investigate and prosecute other offenses committed by public officers
and employees.
Indeed, it must be stressed that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and employees
during their tenure of office.

The jurisdiction of the office of the Ombudsman should not be equated with
the limited authority of the Special prosecutor under Section 11 of R.A. No.
6770 which was established after the creation of the Office of the Special
Prosecutor.
The office of the special prosecutor is merely a component of the Office of
the Ombudsman and may only act under the supervision and control and
upon authority of the Ombudsman.
Its power to conduct preliminary investigation and to prosecute is limited to
criminal cases within the jurisdiction of the Sandiganbayan.

b.

Power to Investigate, to file and to prosecute, distinguished

A distinction should be made between the power to investigate, to file and to

prosecute ombudsman cases.

The Office of the Special Prosecutor (the Tanod Bayan), was made an organic
component of the Office of the Ombudsman, who under the supervision and
control and upon authority of the Ombudsman may conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan.
Or to prosecute cases outside the Sandi-ganbayan's jurisdiction in
accordance with section ll(4c) of R.A. No. 6770, viz., "to perform such other

A prosecutor has a shared authority to investigate and prosecute ombudsman

122

duties assigned to it by the Ombudsman."

c.

While the Ombudsman's investigatory and prose-cutory power is plenary

and unqualified, the authority of the Special Prosecutor is limited. While the
Ombudsdman may delegate his investigatory function, including the power
to conduct administrative investigation, to the Special Prosecutor, the latter
has no power to preventively suspend which is only granted to the
Ombudsman and the Deputy Ombudsman.

The order clarified that: "The preliminary investigation of an Ombudsman case

does not have to be conducted strictly in accordance with Section 3, Rule 112 of
the Rules of Court.
Said rule shall be applied as modified by Rule II of Administrative Order No. 07 of
the Office of the Ombudsman. Particular attention is directed to the provisions
thereof of which are not exactly in conformity with Section 3, Rule 112 of the
Rules of Court, such as, those on the:

If the Ombudsman delegates his authority to conduct administrative

investigation to the Special Prosecutor and the latter finds that preventive
suspension is warranted, the Special Prosecutor may recommend to the
ombudsman to place the said public officer or employee under preventive
suspension."

(1) issuance of an order in lieu of subpoena for the filing of counter-affidavits;

(2) prohibition against a motion to dismiss, motion for a bill of particulars,
and second motion for reconsideration or reinvestigation;

c-1 Moreover, unless authorizing by the Ombudsman the special prosecutor is

not authorized to file an information.

(3) manner of conducting clarificatory questioning; and the

(4) form of affidavits and counter-affidavits.

All that was delegated to the special prosecutor by Office Order No. 40-05
was the discretional authority to review and modify the deputy ombudsmanauthorized information, but even this is subject to the condition that such
modification must be "without departing from, or varying in any way, the
contents of the basic resolution, order or decision."
The doctrine was made operative to cases filed upon the finality of the
decision.
d.

Deloso v. Domingo upheld the primary and concurrent jurisdiction of

Ombudsman to investigate cases cognizable by the Sandiganbayan under
section 15(i) of R.A. No. 6770 to all kinds of malfeasance by any officer or
employee during his tenure of office.
Preliminary Investigation By Ombudsman

Section 18 of R.A. No. 6770 allows the Office of the Ombudsman to promulgate
its rules of procedure for the effective exercise or performance of its powers,
functions, and duties.
The rules of procedure shall include a provision whereby the Rules of Court are
made suppletory.
Accordingly, the Office of the Ombudsman promulgated Administrative Order No.
07 known as the RULES OF PROCEDURE OF THE OFFICE OF THE OMBUDSMAN
(Appendix K) and Administrative Order No. 08 CLARIFYING AND MODIFYING CERTAIN RULES OF PROCEDURE OF THE OMBUDSMAN

It is to be understood, however, that the preliminary investigation Ombudsman

case in accordance with Rule 112 of the Rules of Court is perfectly valid.
The changes in such procedure effected by Administrative Order No. 07 are
designed merely to expedite the process of preliminary investigation and to
conform with the provisions of Republic Act No. 6770.
The officer who review a case on appeal should not be the same person whose
decision is under review.
Primary Jurisdiction Refers To Cases in Relation To Public Office of Accused

The primary jurisdiction, refers to cases in relation to public office of accused

[and punishable for more than six years or a fine of P6,000.00.]
The Ombudsman's primary power to investigate is dependent on the cases
cognizable by the Sandiganbayan.
Thus, the public prosecutor may conduct preliminary investigation of Mayor's
criminal acts not in relation to his public office.
For Ombudsman's authority to overrule investigatory prosecutor, see Cruz v.
People, and Sec. 4, Rule 112.
Any officer authorized to conduct a preliminary investigation who is investigating
an offense or felony committed by public officer must determine if the crime was
committed by the respondent in relation to his office.

123

If it was, the investigating officer shall forthwith inform the office of the
Ombudsman who may either:
(a) take over the investigation of the case pursuant to Section 15(1) of R.A.
No. 6770 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.
In light of the broad powers conferred by law on the Ombudsman and the
Special Prosecutor, it is completely inconsequential that the complaint by which
a criminal case was instituted charging a crime cognizable by the
Sandiganbayan might have been originally filed with the Iloilo Prosecution
Office, or the preliminary investigation therein conducted.
Power Includes all Criminal Cases Involving Public Officers and Employees

In its Resolution On March 20, 2001 The Court in George Uy v Sandiganbayan,

which was reiterated in Office of the Ombudsman v. Breua, categorically stated
that: "the Ombudsman is clothed with authority to conduct preliminary
investigation and to prosecute all criminal cases involving public officers and
employees, not only those within the jurisdiction of the Sandiganbayan, but
those within the jurisdiction of the regular courts as well."
Elaborating on its n ruling nullifying its earlier decision, writes:
THE AUTHORITY OF THE OMBUDSMAN TO INVESTIGATE AND PROSECUTE
OFFENSES COMMITTED BY PUBLIC OFFICERS AND EMPLOYEES IS
FOUNDED IN SECTION 15 AND SECTION 11 OF R.A. NO. 6770. SECTION
15 VESTS THE OMBUDSMAN WITH THE POWER TO INVESTIGATE AND
PROSECUTE ANY ACT OR OMISSION OF ANY PUBLIC OFFICER OR
EMPLOYEE, OFFICE OR AGENCY, WHEN SUCH ACT OR OMISSION
APPEARS TO BE ILLEGAL, UNJUST, IMPROPER OR INEFFICIENT, THUS:
"Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omis sion
appears to be illegal, unjust, improper or inefficient.
It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory
agency of Government, the investigation of such cases
Section 11 grants the Office of the Special Prosecutor, an organic component of the Office
of the Ombudsman... the power to conduct preliminary investigation and prosecute

criminal cases within the jurisdiction of the Sandiganbayan. It states:

"Sec. 11. Structural Organization. xxx xxx

xxx

xxx

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon
authority of the Ombudsman, have the following powers:
(a) To conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan;

The power to investigate and to prosecute granted by law to the Ombudsman is

plenary and unqualified.
It pertains to any act or omission of any public officer or employee when such
act or omission appears to be illegal, unjust, improper or inefficient.
The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts.
It has been held that the clause "any illegal act or omission of any public official"
is broad enough to embrace any crime committed by a public officer or
employee.
The reference made by R.A. No. 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4)
granting the Special Prosecutor the power to conduct preliminary investigation
and prosecute criminal cases within the jurisdiction of the Sandiganbayan,
should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
Section 15 of R.A. No. 6770 gives the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing the Ombudsman "to
take over, at any stage, from any investigatory agency of the government, the
investigation of such cases."
The grant of this authority does not necessarily imply the exclusion from its
jurisdiction of cases involving public officers and employees cognizable by other
courts.
Moreover, the jurisdiction of the Office of the Ombudsman should not be
equated with the limited authority of the Special Prosecutor under Section 11 of
R.A. No. 6770 [whose] power to conduct preliminary investigation and to
prosecute is limited to criminal cases within the jurisdiction of the
Sandiganbayan.
124

Certainly, the lawmakers did not intend to confine the investigatory and
prosecutory power of the Ombudsman to these types of cases.

a. The investigation and prosecution of the civil action for the recovery of ill-gotten
wealth under Republic Act No. 1379, accumulated by former President Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the
Philippines or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his administration,
directly or through his nominees, by taking undue advantage of their public office
and/or using their powers, authority and influence, connections or relationship; and

The Ombudsman is mandated by law to act on all complaints against officers

and employees of the government....
The Presidential Commission on Good Government (PCGG)

Prosecution for Violations of RA. No. 3019 (Anti-Graft Law) and RA. No. 1379
(Unexplained Wealth)

b.

However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise
falling under the foregoing categories, require a previous authority of the President for
the PCGG to investigate and prosecute the same in accordance with Section 2(b) of
Executive Order No. 1.

Under Executive Order No. 14, signed by President Aquino on May 7,1986.
The Presidential Commission on Good Government with the assistance of the
Office of the Solicitor General and other government agencies, were empowered
to file and prosecute 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.

Otherwise, jurisdiction over such cases is vested in the Ombudsman and other duly
authorized investigating agencies as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants, and the state prosecutors.
c.

The Presidential Commission on Good Government shall file all such cases,
whether civil or criminal, with the Sandiganbayan, which shall have exclusive
and original jurisdiction thereof.
Upon the other hand, civil suits for restitution, reparation of damages, or
indemnification for consequential damages, forfeiture proceedings provided for
under Republic Act No. 1379, or any other civil actions under the Civil Code or
other existing laws, in connection with Executive Order No. 2, dated March 12,
1986, may be filed separately from and proceed independently of any criminal
proceedings and may be proved by preponderance of evidence.
From the foregoing provisions of law, particularly Sections 2(b) and 3(a) of
Executive Order No. 1 and Sections 1 and 2 of Executive Order No. 14, the PCGG
has the power to investigate and prosecute such ill-gotten wealth cases of the
former President, his relatives and associates, and graft and corrupt practices
cases that may be assigned by the President to the PCGG to be filed with the
Sandiganbayan.
The authority to investigate extended to the PCGG includes the authority to
conduct a preliminary investigation.
The ruling was further clarified in Cruz, Jr. v. Sandiganbayan:
THE COURT THEN HELD THAT SECTIONS 2(A) AND 3, OF EXECUTIVE
ORDER NO. 1, IN RELATION WITH SECTIONS 1, 2 AND 3 OF EXECUTIVE
ORDER NO. 14, SHOWS THAT WHAT THE AUTHORITY OF THE
RESPONDENT PCGG TO INVESTIGATE AND PROSECUTE COVERS ARE:

The investigation and prosecution of such offenses committed in the acquisition of

said ill-gotten wealth as contemplated under Section 2(a) of Executive Order No. 1.

The PCGG would not have jurisdiction over an ordinary case falling under Rep. Act
Nos. 3019 and 1379.
The PCGG may, however, investigate and cause the prosecution of active and retired
members of the AFP for violations ofR.A. Nos. 3019 and 1379 only in relation to E.O.
Nos. 1, 2, 14, and 14-a, i.e., insofar as they involve the recovery of ill-gotten wealth of
former President Marcos and his family and his cronies.

d.

The appropriate prosecutory agencies that may investigate and file the petition under
R.A. No. 1379 and file the petition for forfeiture of unexplained wealth against a
private citizen are the provincial prosecutor and the Solicitor General

e.

For violation of R.A. No. 3019 and 1379 of those who are still in office the agency
granted the power to investigate and prosecute them is the office of the Ombudsman.
Under Presidential Decree No 1606, as amended and Batas Pambansa Big. 195,
violation of Rep. Act Nos. 3019 and 1379 shall be tried by the Sandiganbayan.
It is a civil procreedings in rem but criminal in nature

The law underwent several changes. Under R.A. No. 6770 the Ombudsman was
granted the authority to investigate and initiate the proper action for the
recovery of ill-gotten and/or unexplained wealth amassed after 25 February
1986 and the prosecution of the parties involved.
After reviewing the legislative history of the Sandiganbayan and the Office of the
Ombudsman, the Court declared that
"UNDER R.A. NO. 8249, THE SANDIGANBAYAN IS VESTED WITH
EXCLUSIVE ORIGINAL JURISDICTION IN ALL CASES INVOLVING
VIOLATIONS OF R.A. NO. 3019, R.A. NO. 1379, AND CHAPTER II, SEC. 2,
TITLE VII, BOOK II OF THE REVISED PENAL CODE, WHERE ONE OR MORE
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OF THE ACCUSED ARE OFFICIALS OCCUPYING THE FOLLOWING

POSITIONS WHETHER IN A PERMANENT, ACTING OR INTERIM CAPACITY,
AT THE TIME OF THE COMMISSION OF THE OFFENSE:

approval of said court.

(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade '27' and higher, of the Compensation and Position
Classification Act of 989 (R.A. No. 6758), specifically including:

Under Section 14 of Republic Act No. 6770: No writ of injunction shall be issued
by any court to delay an investigation being conducted by the Ombudsman
under this act, unless there is a prima facie evidence that the subject matter of
the investigation is outside the jurisdiction of the office of the Ombudsman.

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan,

and provincial treasurers, assessors, engineers, and other city department heads;
(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department heads;

No Injunction Against Ombudsman to Delay Investigation

Moreover, no court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman except the Supreme Court, on pure
question of law.

(c) Officials of the diplomatic service occupying the position of consul and higher;

Remedy

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintendent or higher;
(f)

The remedy of aggrieved parties from resolutions of the office of the

Ombudsman finding probable cause in criminal cases or non-administrative
cases, when tainted with grave abuse of discretion, is to file an original action
for certiorari with the Supreme Court and not with the Court of Appeals.

City and provincial prosecutors and their assistants, and officials and prosecutors in
the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions

The PCGG may, however, also investigate and prosecute graft and corrupt
practices cases that may be assigned by the President to the PCGG to be filed
with the Sandiganbayan.
Non-interference with Ombudsman

Jurisdiction over money-laundering cases

The Anti money-laundering law provides for two kinds of cases which are
independent of each other.
The criminal action for anti-money-laundering offense and the civil forfeiture
proceedings which may be filed separately and proceed independently of the
criminal prosecution.
a. The Criminal Action

The Court recognizing the investigatory and prosecutory powers granted by the
Constitution to the office of the Ombudsman and for reasons of practicality,
declared in an en bane resolution dated August 30, 1993, issued in Ocampo u.
Ombudsman, that the Court will not interfere nor pass upon the findings of the
Ombudsman to avoid its being hampered by innumerable petitions assailing the
dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, and that it will not review
the exercise of discretion on the part of the fiscals or prosecuting attorneys each
time they decide to file an information in court or dismiss a complaint by a
private complainant.
The court, however, stressed that while it is the Ombudsman who has
discretion to determine whether or not a criminal case should be filed in
Sandiganbayan, once the case has been filed with said court, it is
Sandiganbayan, and no longer the Ombudsman, which has full control of
case so much so that the informations may not be dismissed without

Republic Act No. 9160 as amended (The Anti-Money Laundering Act of 2001)
Defines
Money Laundering Offense. Money laundering is a crime whereby the
proceeds of an unlawful activity are transacted, thereby making them
appear to have originated from legitimate sources.
It is committed by the following:
1) Any person knowing that any monetary instrument or property
represents, involves, or relates to the proceeds of any unlawful activity,
transacts or attempts to transact said monetary instrument or property.

full
the
the
the
the

2) Any person knowing that any monetary instrument or property involves

126

the proceeds of any unlawful activity, performs or fails to perform any

act as a result of which he facilitates the offense of money laundering
referred to in paragraph (a) above.

the State of any monetary instrument, property, or proceeds representing, involving,

or relating to an unlawful activity or a money laundering offense.
SEC.

3. Venue of cases cognizable by the regional trial court. A petition for civil
forfeiture shall be filed in any regional trial court of the judicial region where the
monetary instrument, property, or proceeds representing, involving, or relating to an
unlawful activity or to a money laundering offense are located;

3) Any person knowing that any monetary instrument or property is

required under this Act to be disclosed and filed with the Anti-Money
Laundering Council (AMLC), fails to do so.

Provided, however. That where all or any portion of the monetary instrument,
property, or proceeds is located outside the Philippines, the petition may be filed in
the regional trial court in Manila or of the judicial region where any portion of the mon etary instrument, property, or proceeds is located, at the option of the petitioner.

b. Jurisdiction of Money Laundering Cases

The regional trial courts shall have jurisdiction to try all cases on money
laundering.

c.

The Rule does not provide for civil forfeiture before the Sandiganbayan.

Those committed by public officers and private persons who are in

conspiracy with such public officers shall be under the jurisdiction of the
Sandiganbayan.

The law created an Anti-Money Laundering Council (AMLC). tasked with

implementing the law, was empowered:

The foregoing section apparently refers to the criminal offense of anti-money

laundering as defined in section 4 of the law.

(3) to institute civil forfeiture proceedings and all other

proceedings through the Office of the Solicitor General;

The Civil Forfeiture Proceedings

(4) to cause the filing of complaints with the Department of Justice or the
Ombudsman for the prosecution of money laundering offenses;

The law provided that in petitions for civil forfeiture the Revised Rules of
Court shall apply.
In consequence thereof, the Supreme Court issued the RULE OF PROCEDURE
IN CASES OF CIVIL FORFEITURE, ASSET PRESERVATION, AND FREEZING OF
MONETARY INSTRUMENT, PROPERTY, OR PROCEEDS REPRESENTING,
INVOLVING, OR RELATING TO AN UNLAWFUL ACTIVITY OR MONEY
LAUNDERING OFFENSE UNDER REPUBLIC ACT NO. 9160, AS AMENDED

remedial

(5) to initiate investigations of covered transactions, money laundering

activities and other violations of this Act.
d. Civil and Criminal Forfeiture Distinguished
It is to be noted that under the Anti-Money Laundering Act, so far as Civil
Forfeiture is concerned it is the AMLC that is authorized to institute civil
forfeiture proceedings and all other remedial proceedings through the Office
of the Solicitor General with the Regional Trial Court.

The Rule expressly provided that

There is no similar authority to file such cases with the Sandiganbayan.

The Rule shall govern all proceedings for civil forfeiture, asset preservation
and freezing of monetary instrument, property, or proceeds representing,
involving, or relating to an unlawful activity or a money laundering offense
under Republic Act No. 9160, as amended.

It is only in criminal cases that the AMLC is authorized to cause the filing of
complaints with the Department of Justice or the Ombudsman for the
prosecution of money laundering offenses.

The Revised Rules of Court shall apply suppletorily when not inconsistent
with the provisions of this special Rule.

But unlike Civil Forfeiture under R.A. No. 1379 which specifically authorized
its filing by the Ombudsman or thru the Office of Special Prosecutor in the
Sandiganbayan.
No similar authority have been granted the Ombudsman with respect to civil
forfeiture under the Anti-money Laundering Law.

II of the Rule provided only for Civil Forfeiture in the Regional Trial
Court. Thus
TITLE

SEC.

2. Party to institute proceedings. The Republic of the Philippines, through the

Anti-Money Laundering Council, represented by the Office of the Solicitor General,
may institute actions for civil forfeiture and all other remedial proceedings in favor of

SEC. 3.
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Procedure
COMMENT:

Preliminary Investigation Concept

a.

1. Amendment in paragraph (a) requires that the complaint should be accompanied

by affidavits of the complainant and his witnesses as well as other supporting papers
relied upon by him (the complainant) to establish probable cause.

The conduct of a preliminary investigation is the initial step towards the

criminal prosecution of a person.

A significant amendment is the 2nd paragraph of par. (b) regarding respondent's right
to examine all other evidence submitted by the complainant of which he may not
have been furnished and to obtain copies thereof at his expense.

After such preliminary investigation, if the investigating officer finds that

there is sufficient ground to engender a well-founded belief that a crime has
been committed and that the respondent is probably guilty thereof and
should be held for trial, then the corresponding complaint or information
shall be filed in the competent court.

If such records are voluminous the complainant may be required to specify and
identify those which he 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.
The amendment was brought about because of the case of Commissioner of Internal
Revenue v. Court ofAppeals, where among the issues raised is the failure of the
complainant to produce the documents in support of the complaint.

It is the filing of said complaint or information that initiates the criminal

prosecution of the accused when he is brought to court for trial.
b.

For obvious reasons, objects as evidence need not be furnished either party but shall
be made accessible for examination, copying or photocopying by the complainant or
respondent at the expense of the requesting party.
2.

"The purpose of a preliminary investigation is to secure the innocent against

hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of crime, from the trouble, expense and anxiety
of a public trial, and to protect the state from useless and expensive trials.
The right to a preliminary investigation is a statutory grant, and to withhold
it would be to transgress constitutional due process."

It abrogates the ruling in Commissioner of Internal Revenue v. Court of Appeals, where

the court castigated the investigator for proceeding without first acting on
respondents' motion to dismiss. Since a motion to dismiss is now a prohibited
pleading, the investigator may properly ignore such a motion.
The amendments require the respondent to submit counter-affidavits and other
supporting documents relied upon by him for his defense.
The amendment in sub-par, (d) requires the prosecutor to resolve the complaint based
on the evidence presented by the complainant if the respondent cannot be
subpoenaed or, if subpoenaed, does not submit counter-affidavit[s] within the ten (10day period.

4.

In sub-par, (e), the clarificatory hearing shall only be limited to facts and issues which
the investigating officer believes need to be clarified.

However, in order to satisfy the due process clause, it is not enough that the
preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity.
A preliminary investigation serves not only the purposes of the State.
More important, it is a part of the guarantee of freedom and fair play which
are birthrights of all who live in our country.

The clarificatory hearing shall be held within ten (10) days from submission of the
counter-affidavit and other documents, or from expiration of the period for their
submission. It shall be terminated within five (5) days.
5.

Importance of Preliminary Investigation

The Supreme Court stressed the importance of a preliminary investigation or
how the same should be conducted in order for it to conform with the
essential requisites of due process and reiterated its ruling in the cases of
Salonga v. Pano, et al., and Geronimo v. Ramos, that:

The amendment in paragraph (c) prohibits the filing of a motion to dismiss. This is a
significant amendment.

3.

A preliminary investigation is merely inquisitorial, but it is considered as a

judicial proceeding wherein the prosecutor or investigating officer, by the
nature of his functions acts as a quasi-judicial officer.

It is, therefore, imperative upon the fiscal or the judge as the case may be,
to relieve the accused from the pain of going through a trial once it is
ascertained that the evidence is insufficient to sustain a prima facie case or
that no probable cause exists to form a sufficient belief as to the guilt of the
accused.

The investigation shall then be deemed concluded and the investigating officer shall,
within ten (10) days, determine whether or not there is sufficient ground to hold the
respondent for trial upon the evidence adduced.

128

the fiscal to prepare his complaint or information.

Although there is no general formula or fixed rule for the determination of

probable cause since the same must be decided in the light of the conditions
obtaining in given situations and its existence depends to a large degree
upon the finding or opinion of the prosecutor (judge) conducting the
examination, such a finding should not disregard the facts before the
prosecutor (judge) nor run counter to the clear dictates of reasons.

It is not a trial of the case on the merits and has no purpose except that of
determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said to be acting as a quasicourt, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.

Such a preliminary investigation must be undertaken in accordance with the

procedure provided in Section 3, Rule 112 of The Revised Rules on Criminal
Procedure.

Though some cases describe the public prosecutor's power to conduct a

preliminary investigation as quasi-judicial in nature, this is true only to the
extent that, like quasi-judicial bodies, the prosecutor is an officer of the
executive department exercising powers akin to those of a court, and the
similarity ends at this point.

This procedure is to be observed in order to assure that a person undergoing

such preliminary investigation will be afforded due process.
c.

A quasi-judicial body is as an organ of government other than a court and

other than a legislature which affects the rights of private parties through
either adjudication or rule-making.

The Proceedings are Considered as Judicial in Nature

Thus, the conduct of a preliminary investigation, which is defined as "an
inquiry or proceeding for the purpose of determining whether there is
sufficient ground to engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof, and should be
held for trial," is, like court proceedings, subject to the requirements of both
substantive and procedural due process.

A quasi-judicial agency performs adjudicatory functions such that its awards,

determine the rights of parties, and their decisions have the same effect as
judgments of a court.
Such is not the case when a public prosecutor conducts a preliminary
investigation to determine probable cause to file an information against a
person charged with a criminal offense, or when the Secretary of Justice is
reviewing the former's order or resolutions.

This is because a preliminary investigation is considered a judicial

proceeding wherein the prosecutor or investigating officer, by the nature of
his functions, acts as a quasi-judicial officer, but only to the extent that, like
quasi-judicial bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court.
d.

Since the DOJ is not a quasi-judicial body and it is not one of those agencies
whose decisions, orders or resolutions are appealable to the Court of
Appeals under Rule 43, the resolution of the Secretary of Justice finding
probable cause to indict petitioners for estafa is, not appealable to the Court
of Appeals via a petition for review under Rule 43.

DOJ is not a quasi-judicial agency; Preliminary Investigation is not a quasijudicial proceeding reviewable under Rule 43
The Court, however, clarified that: A preliminary investigation is not a quasijudicial proceeding, and the DOJ is not a quasi-judicial agency exercising a
quasi-judicial function when it reviews the findings of a public prosecutor
regarding the presence of probable cause.

However, the Resolution of the DOJ Secretary is appelable administratively to

the Office of the President where the offense charged is punishable by
Reclusion perpetua."

The Court pointedto its ruling in Bautista u. Court of Appeals, holding that a
preliminary investigation is not a quasi-judicial proceeding, thus:

The availability of the remedy of a petition for review under Rule 43 of the
Rules of Court to appeal the Decision and Resolution of the Office of the
President effectively foreclose the right to resort to a special civil action for
certiorari.

[t]he prosecutor in a preliminary investigation does not determine the guilt or

innocence of the accused. He does not exercise adjudication nor rule-making
functions.
Preliminary investigation is merely inquisitorial, and is often the only means of
discovering the persons who may be reasonably charged with a crime and to enable

RESPONDENT CANNOT BE COMPELLED TO SUBMIT COUNTER-AFFIDAVIT BEFORE

COMPLAINANT HAS SUBMITTED ITS AFFIDAVITS; CRIMINAL INVESTIGATION AND
PRELIMINARY INVESTIGATION DISTINGUISHED

The respondent undergoing a preliminary investigation may not be compelled to

129

submit a counter-affidavit before the submission of complainant's affidavit.

The general power of investigation of the PCGG as consisting of two stages; the
first stage, called the criminal investigation, is a fact-finding inquiry conducted
by law enforcement agents, whereby they gather evidence and interview
witnesses and afterwards assess the evidence so that, if they find sufficient
basis, they can file a complaint for the purpose of preliminary investigation.
The second stage, called the preliminary investigation stage, is conducted for
the purpose of ascertaining if there is sufficient evidence to bring a person to
trial.
Having found petitioner prima facie guilty of violation of Rep. Act No. 3019 for
which reason it issued a freeze order against him and filed a civil complaint for
recovery of alleged ill-gotten wealth, the PCGG could not thereafter act as an
impartial judge in conducting a preliminary investigation of criminal complaints
based on the same facts found by it to constitute prima facie evidence against
petitioner.
In our criminal justice system, the law enforcer who conducted the criminal
investigation, gathered the evidence and thereafter filed the complaint for the
purpose of preliminary investigation cannot be allowed to conduct the
preliminary investigation of his own complaint. It is to say the least arbitrary and
unjust.

Thus, a finding of probable cause does not require an inquiry into whether there
is sufficient evidence to procure a conviction.
It is enough that it is believed that the act or omission complained of constitutes
an offense charged.
Precisely, there is a trial for the reception of evidence of the prosecution in
support of the charge.
Probable cause is 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 was
prosecuted.
As a protection against false prosecution and arrest, the knowledge of facts,
actual or apparent must, however, be strong enough to justify a reasonable man
in the belief that he has lawful grounds for arresting the accused
It is such a state of facts in the mind of the prosecutor as would lead a person of
ordinary caution and prudence to believe an honest or strong suspicion that a
thing is so.
The term does not mean "actual or positive cause"; nor does it import absolute
certainty.
It is merely based on opinion and reasonable belief.

One cannot be a prosecutor and judge at the same time.

Determination of Probable Cause
Having gathered the evidence and filed the complaint as a law enforcer, he
cannot be expected to handle with impartiality the preliminary investigation of
his own complaint, this time as a public prosecutor.
Since a preliminary investigation is designed to screen cases for trial, only
evidence may be considered.
While reports and even raw information may justify the initiation of an
investigation, the stage of preliminary investigation can be held only after
sufficient evidence has been gathered and evaluated warranting the eventual
prosecution of the case in court.

As summed up in Webb u. de Leon, a finding of probable cause needs only to

rest on evidence showing that more likely than not
a crime has been committed and was committed by the suspects.
Probable cause need not be based on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond reasonable doubt and definitely,
not on evidence establishing absolute certainty of guilt.
As well put in Brinegar v. United States, while probable cause demands more
than "bare suspicion," it requires "less than evidence which would justify x x x a
conviction."

Meaning of Probable Cause for Purpose of Filing Information

Probable cause is a reasonable ground of presumption that a matter is, or may

be, well founded does not mean actual and positive cause nor does it import
actual certainty.
It is merely based on opinion and reasonable belief.

A finding of probable cause merely binds over the suspect to stand trial.
It is not a pronouncement of guilt.
Thus, probable cause should be determined in a summary but scrupulous
manner to prevent material damage to a potential accused's constitutional right
130

to liberty and the guarantees of freedom and fair play.

The preliminary investigation is not the occasion for the full and exhaustive
display of the parties evidence.
It is for the presentation of such evidence as may engender a well grounded
belief that an offense has been committed and that the accused is probably
guilty thereof.

(2) the preliminary investigation proper, where the complaint or information is

read to the accused after his arrest and he is informed of the substance of
the evidence adduced against him, after he is allowed to present his
evidence in his favor if he so desires, was changed by Presidential Decree
No. 911, upon which the present rule is based which removed the
preliminary examination stage and integrated it into the preliminary
investigation proper.
Now, the proceedings consist only of one stage.

It is a means of discovering the persons who may be reasonably charged with a

crime.
The validity and merits of a party's defense or accusation, as well as
admissibility of the testimonies and evidence, are better ventilated during trial
proper than at the preliminary investigation level.
No Need to Set Investigation for Clarificatory Questioning

Considering the low quantum and quality of evidence needed to support a

finding of probable cause, the court held that the DOJ Panel did not gravely
abuse its discretion in refusing to call the NBI witnesses for clarificatory
questions.

JUDGES OF REGIONAL TRIAL COURTS (FORMERLY COURTS OF FIRST INSTANCE) NO LONGER

HAVE AUTHORITY TO CONDUCT PRELIMINARY INVESTIGATIONS

That authority, at one time, reposed in them under Sections 13, 14 and 16, Rule
112 of the Rules of Court of 1964 was removed from them by the 1985 Rules on
Criminal Procedure, effective on January 1, 1985, which deleted all provisions
granting that power to said judges.
The Supreme Court had occasion to point this out in Salta v. Court of Appeals,
and to stress as well certain other basic propositions, namely:
(1) that the conduct of a preliminary investigation is "not a judicial function
x x x (but) part of the prosecution's job, a function of the executive,"

The decision to call witnesses for clarificatory questions is addressed to the

sound discretion of the investigator and the investigator alone.

(2) that wherever "there are enough fiscals or prosecutors to conduct

preliminary investigations, courts are counseled to leave this job which
is essentially executive to them," and the fact "that a certain power is
granted does not necessarily mean that it should be indiscriminately
exercised."

If the evidence on hand already yields a probable cause, the investigator need
not hold a clarificatory hearing.
Probable cause merely implies probability of guilt and should be determined in a
summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront
and cross-examine his accusers to establish his innocence.
It is not the proper forum for an exhaustive production of evidence.
Stages of Preliminary Investigation: Former and Present Rule

The Court, pointed out in Sangguniang Bayan ofBatac v. Judge Efren Albano, that
the two stages under the old rule, namely:
(1) the preliminary examination stage, during which the investigating judge
determines whether there is reasonable ground to believe that an offense
has been committed, and the accused is guilty thereof, so that a warrant of
arrest may be issued and the accused hold for trial; and

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared

effective on October 1, 1988, did not restore that authority to Judges of Regional
Trial Courts; said amendments did not in fact deal at all with the officers or
courts having authority to conduct preliminary investigations.
Judges' Power (Duty) to Conduct Preliminary Examination

This is not to say, however, that somewhere along the line, RTC Judges also lost
the power to make a preliminary examination for the purpose of determining
whether probable cause exists to justify the issuance of a warrant of arrest (or
search warrant).
Such a power indeed, it is as much a duty as it is a power has been and
remains vested in every judge by the provision in the Bill of Rights in the 1935,
the 1973 and the present 1987 Constitutions securing the people against
unreasonable searches and seizures, thereby placing it beyond the competence
of mere Court rule or statute to revoke.
131

The distinction must, therefore, be made clear.

No Right to Counsel During Preliminary Investigation

While an RTC Judge may no longer conduct preliminary investigations to

ascertain whether there is sufficient ground for the filing of a criminal complaint
or information, he retains the authority when such a pleading is filed with his
Court, to determine whether there is probable cause justifying the issuance of a
warrant of arrest.

It has been held that there is nothing in the rules which renders a preliminary
investigation invalid because defendant was without counsel.

It might be added that this distinction accords, rather than conflicts, with the
rationale of Salta because both law and rule, in restricting to judges the
authority to order arrest, recognize that function to be judicial in nature.
No Right of Cross-Examination
It is a fundamental principle that the accused in a preliminary investigation has
no right to cross-examine the witnesses which the complainant may present.
Section 3, Rule 112 of the Rules of Court expressly provides that the respondent
shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded
an opportunity to be present but without the right to examine or cross-examine.
The parties may propound questions thru the investigating officer.

See, however, People v. Abano, where the confession obtained during

preliminary investigation without the assistance of counsel was held as
inadmissible.
The Right of Accused to Discovery Procedures
In Webb u. de Leon, the court held that an accused is entitled during preliminary
investigation to discovery procedure.
While recognizing the absence of any provision in the Rules on Criminal
Procedure for discovery proceedings during preliminary investigation, the Court
held that such failure does not, however, negate its use by a person under
investigation when indispensable to protect his constitutional right to life, liberty
and property.

Absence of Counsel

Preliminary investigation is not too early a stage to guard against significant

erosion of the constitutional right to due process of a potential accused; x x x
and upheld the legal basis of the right of petitioners to demand from their
prosecutor, the NBI, the original copy of the sworn statement and the FBI report
considering their exculpatory character, and hence, unquestionable materiality
to the issue of their probable guilt.

Where the accused is not represented by a counsel during the preliminary

investigation, such irregularity which amounts to an absence of preliminary
investigation should be raised before the trial court.

Under the present rule, the respondent shall have the right to examine the
evidence submitted by the complainant which he may not have been furnished
and to copy them at his expense.

When so raised, the trial court is called upon not to dismiss the information but
hold the case in abeyance and conduct its own investigation or require the fiscal
to hold a reinvestigation.

If the evidence is voluminous, the complainant may be required to specify those

which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.

This is the proper procedure since the absence of such investigation did not
impair the validity of the information or otherwise render it defective.

Preliminary Designation of Offense Not Conclusive

Much less did it affect the jurisdiction of the trial court.

The right to a preliminary investigation, being waivable does not argue against
the validity of the proceedings.
The most that should be done is to remand the case in order that such
investigation could be conducted.

The preliminary designation of the offense in a directive to file counter affidavits

is not conclusive as to the true nature of the offense charged.
The Right to be Present Not Absolute
The New Rules on Criminal Procedure does not require as a condition sine qua
non to the validity of the proceedings in the preliminary investigation; the
presence of the accused for as long as efforts to reach him were made, and an
opportunity to controvert the evidence of the complainant is accorded him.
132

General Court Martial

The obvious purpose of the rule is to block attempts of unscrupulous
respondents to thwart the prosecution of offenses by hiding themselves or by
employing dilatory tactics.
Thus, preliminary investigation can be conducted ex-parte if the respondent
cannot be subpoenaed or does not appear after due notice.
The fiscal need not call the witnesses for clarificatory questioning if the evidence
on hand already yields probable cause.

Under Military law, the conduct of investigations is primarily governed by

Articles 71 of the Articles of War, which provides: Charges and specifications
must be signed by a person subject to military law, and under oath either that
he has personal knowledge of, or has investigated the matters set forth therein
and that the same are true in tact, to the best of his knowledge and belief.
No charge will be referred to a general court martial for trial until after a
thorough and impartial investigation thereof shall have been made.

The Right to Notice

The, respondent is, however, entitled to be notified of the proceedings and to be
present thereat.
The fact that he was not so notified is a denial of fundamental fairness which
taints the preliminary investigation.
In a petition for forfeiture under R.A. No. 1379 respondent must be furnished a
copy of the resolution directing the filing of a petition for forfeiture and to file a
motion for reconsideration.
The notice must be sent at the right address.

This investigation will include inquiries as to the truth of the matter set forth in
said charges, form of charges, and what disposition of the case should be made
in the interest of justice and discipline.
At such investigation, full opportunity shall be given to the accused to crossexamine witnesses against him if they are available and to present anything he
may desire in his own behalf, either in defense or mitigation, and the
investigating officer shall examine available witnesses requested by the
accused.
If the charges are forwarded after such investigation, they shall be accompanied
by a statement of the substance of the testimony taken on both sides.

Preliminary Investigation Must Be Completed

Where the rules of the Ombudsman (R.A. No. 6770, Sec. 7, Rule II,
Administrative Order No. 7), allows a party to file a motion for reconsideration,
but the respondents were not furnished a copy of the resolution and an
opportunity to file a motion for reconsideration before the filing of the
information against them in court, the Supreme Court held that, they were
deprived of their right to a full preliminary investigation preparatory to the filing
of the information against them, which warranted the remand of the case to the
Office of the Ombudsman to complete the preliminary investigation.
The failure, however, to furnish the respondent with a copy of an adverse
resolution pursuant to Section 6, Rule II of the Rules of Procedure of the Office of
the Ombudsman, does not affect the validity of information thereafter filed.
Under Section 7(b) of the same Rule no motion from reconsideration or
reinvestigation shall be entertained after the information shall have been filed in
court, except upon order of the court wherein the case was filed.
Thus, when required by law the right to a preliminary investigation is a
substantial right and its denial amounts to a denial of due process.
Its absence, however, is not a ground for a motion to quash.

Before directing the trial of any charge by general court-martial the appointing
authority will refer it to his staff judge advocate for consideration and advise.
SEC. 4.
Resolution of Investigating Prosecutor and its Review
COMMENTS:
1.

Under the amendment, whether the recommendation of the investigating officer is to

file or dismiss the case, he shall, within five (5) days from his resolution, forward the
records of the case to the provincial or city prosecutor or chief state prosecutor or, for
offenses cognizable by the sandiganbayan in the exercise of its original jurisdiction, to
the ombudsman or his deputy the latter shall take appropriate action thereon within
ten (10) days from receipt and shall immediately inform the parties of said action.

2.

For offenses cognizable by the Sandiganbayan in the exercise of its original

jurisdiction, the records should be remanded to the Ombudsman, since it is the latter
that has primary jurisdiction to investigate, file and prosecute said cases.'

3.

The rule recognize the right of a party to appeal to the Secretary of Justice and
requires that the parties be notified of the recommendation of the action to be taken
thereon.

133

Under Sec. 11 of Rule 116, among the grounds for suspension of the arraignment is
when:
"(c) A petition for review of the prosecutor's resolution is pending at either the
department of justice or the office of the president: Provided, That the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office."

Role of the Prosecutor

Prosecutors should not allow, and should avoid giving the impression that their
noble office is being used or prostituted, wittingly or unwittingly, for the political
ends or other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice even-handedly, without fear or favor
to any and all litigants alike, whether rich or poor, weak or strong, powerless or
mighty.
Only by strict adherence to the established procedure may the public's
perception of the impartiality of the prosecutor be enhanced.

134

Officer Conducting Preliminary Investigation Must be Impartial

of averments of the offense charged.

An indispensable requisite of due process is that the person who presides and
decides over a proceeding, including a preliminary investigation, must possess
the cold neutrality of an impartial judge.

He may dismiss the complaint forthwith if he finds it to be insufficient in form or

substance or if he otherwise finds no ground to continue with the inquiry, or
proceed with the investigation if the complaint is, in his new, in due and proper
form.

Although such a preliminary investigation is not a trial and is not intended to

usurp the function of the trial court, it is not a casual affair.
The officer conducting the same investigates or inquires into the facts
concerning the commission of the crime with the end in view of determining
whether or not an information may be prepared against the accused.
Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the
merits of the case. Sufficient proof of the guilt of the accused must be adduced
so that when the case is tried, the trial court may not be bound as a matter of
law to order an acquittal.
A preliminary investigation has then been called a judicial inquiry.
It is a judicial proceeding.
An act becomes judicial when there is opportunity to be heard and for the
production and weighing of evidence, and a decision is rendered thereon.
The authority of a prosecutor or investigating officer duly empowered to preside
or conduct a preliminary investigation is no less than that of a municipal judge
or even a regional trial court judge.
While the investigating officer, strictly speaking, is not a "judge," by the nature
of his functions, he is and must be considered to be a quasi-judicial officer.
It should be realized that when a man is hailed to court on a criminal charge, it
brings in its wake problems not only for the accused but for his family as well.
Therefore, it behooves a prosecutor to weigh the evidence carefully and to
deliberate thereon to determine the existence of prima facie case before filing
the information in Court.
Anything less would be a dereliction of duty.
The officer who review a case on appeal should not be the same person whose
decision is under review.
Discretion of Prosecutor
The investigating fiscal has discretion to determine the specificity and adequacy

It is not his duty to require a more particular statement of the allegations of the
complaint merely upon the respondents' motion and specially where, after an
analysis of the complaint and its supporting statements, he finds it sufficiently
definite to apprise the respondents of the offenses with which they are charged.
The institution of a criminal action depends upon the sound discretion of the
fiscal. He has the quasi-judicial discretion to determine whether or not a criminal
case should be filed in court.
Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal Procedure, the
Information shall be prepared by the Investigating Prosecutor against the
respondent only if he or she finds probable cause to hold such respondent for
trial.
The Investigating Prosecutor acts without or in excess of his authority under the
Rule if the Information is filed against the respondent despite absence of
evidence showing probable cause therefor.
Duty of Investigation Fiscal; Effect of Absence of Certification

If a preliminary investigation was actually conducted, the absence

certification by the investigating fiscal that it was conducted is not fatal.

of

Absence of certification as to holding of Preliminary Investigation does not affect

validity of information.
The certification "that a preliminary investigation has been conducted in this
case; that there is a reasonable ground to engender a well-founded belief that a
crime has been committed and that the accused are probably guilty thereof is
sufficient.
The failure to state therein that the accused was informed of the complaint and
was given an opportunity to submit controverting evidence is fatal and
untenable.
Designation of Offense by Fiscal Not Binding Upon Court

The designation of the offense by the Fiscal is not binding upon the Court.
Remedies if There is No Preliminary Investigation

135

Absence of preliminary investigation does not impair the validity of information.

It is not a ground for a motion to quash.
Absence of Preliminary Investigation is not a ground for motion to quash.
Dismissal for lack of Preliminary Investigation is not allowed,
The remedy is to hold in abeyance proceedings and order the Fiscal to hold
preliminary Investigation
The same principles were stressed in Torralba v. Sandiganbayan.
Proper Forum to Raise Absence of Preliminary Investigation

The proper forum before which absence of preliminary investigation should be

ventilated is the Regional Trial Court and not the Supreme Court. Absence of a
preliminary investigation does not go to the jurisdiction of the court but merely
to the regularity of the proceedings that could be waived.
Habeas Corpus Not a Remedy
If there was no preliminary investigation, the remedy is not a petition for habeas
corpus but a motion before the trial court to quash the warrant of arrest, and/or
the Information on grounds provided by the Rules, or to ask for an
investigation/reinvestigation of the case.
Habeas corpus would not lie after the Warrant of Commitment was issued by the
Court on the basis of the Information filed against the accused. So it is explicitly
provided for by Section 14, Rule 102 of the Rules of Court x x x.
Ilagan was a reiteration of the Supreme Court's ruling in People v. Casiano.
The same rule was reiterated in Doromal v. Sandigabayan.

136

If there was no preliminary investigation, the accused must

(a) refuse to enter a plea upon arraignment and object to further proceedings
upon such ground;
(b) insist on preliminary investigation;
(c) file certiorari if refused;
(d) raise lack of preliminary investigation as error on appeal;
(e)
file prohibition.
When Habeas Corpus allowed
Habeas Corpus was allowed as a remedy for irregular preliminary investigation
conducted by a municipal judge in a murder case, who without legal authority
for being disqualified as a relative within the 3rd degree and without proper
preliminary examination ordered the issuance of a warrant of arrest as a
consequence of which accused was illegally detained.
The judge then remanded the case to the provincial prosecutor who was then
held as without authority to lift the warrant of arrest.
The judge was considered, as in construe five custody of the accused, by virtue
of an illegal warrant of arrest.

the filing of an information based upon a complaint where he is not convinced

that the evidence would warrant the filing of the action in court.
As he has the power of supervision and control over prosecuting officers, the
Minister of Justice has the ultimate power to decide which as between conflicting
theories of the complainant and the respondents should be believed.
Thus, 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.
Power of Secretary to Review
The power of the Secretary of Justice to review resolutions of his subordinates
even after the information has already been filed in court is well settled.
In Marcelo v. Court of Appeals, reiterated in Roberts v. Court of Appeals, the
Court clarified that nothing in Crespo v. Mogul, forecloses the power or authority
of the Secretary of Justice to review resolutions of his subordinates in criminal
cases despite an information already having been filed in court.
Nature of Justice Secretary's Power of Control over prosecutors

Appeals to the Secretary of Justice

The power of supervision and control by the Minister of Justice over the fiscals
cannot be denied.
As stated in Noblejas v. Sales, "Section 79 of the Revised Administrative Code
defines the extent o a department secretary's power.
The power of control therein contemplated means (the power of the 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 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 to act in lieu of such officers."

The nature of the Justice Secretary's power of control over prosecutors was
explained in Ledesma u. Court of Appeals, in this wise:
"DECISIONS OR RESOLUTIONS OF PROSECUTORS ARE SUBJECT TC
APPEAL TO THE SECRETARY OF JUSTICE WHO, UNDER THE REVISED
ADMINISTRATIVE CODE EXERCISES THE POWER OF DIRECT CONTROL
AND SUPERVISION OVER SAID PROSECUTORS; AND WHO MAY THUS
AFFIRM; NULLIFY, REVERSE OR MODIFY THEIR RULINGS.
SECTION 39, CHAPTER 8, BOOK IV IN RELATION TO SECTION[S] 5; 8,
AND 9, CHAPTER 2, TITLE III OF THE CODE GIVES THE SECRETARY OF
JUSTICE SUPERVISION AND CONTROL OVER THE OFFICE OF THE CHIEF
PROSECUTOR AND THE PROVINCIAL AND CITY PROSECUTION OFFICES.
The scope of his power of supervision and control is delineated in Section 38, paragraph 1,
Chapter 7, Book IV of the Code:

For, while it is the duty of the fiscal to prosecute persons who, according to
evidence received from the complainant, are shown to be guilty of a crime, the
Minister of Justice is likewise bound by his oath of office to protect innocent
persons from groundless, false or serious prosecution.

'(1) Supervision and Control. Supervision and control shall include authority to act
directly whenever s specific function is entrusted by law or regulation to a sub ordinate;
direct the performance of duty; restrain the commission of acts; review, approve, reverse
or modify acts and decisions of subordinate officials or units; x x x.'

He would be committing a serious dereliction of duty if he orders or sanctions

Supplementing the aforequoted provisions are Section ofR.A. No. 3783 and
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Section 37 of Act 4007, which read:

prosecuting officers, is the ultimate authority who decides which of the

conflicting theories of the complainants and the respondents should be believed.

'Section 3. x x x
The Chief State Prosecutor, the Assistant Chief Stat( Prosecutors, the Senior State
Prosecutors, and the Statt Prosecutors shall x x x perform such other duties as may be
assigned to them by the Secretary of Justice in the in terest of public service.'

SECTION 37. THE PROVISIONS OF THE EXISTING LAW TO TH( CONTRARY

NOTWITHSTANDING, WHENEVER A SPECIFIC POWER AUTHORITY, DUTY,
FUNCTION, OR ACTIVITY IS ENTRUSTED TO A CHIEF OF BUREAU, OFFICE,
DIVISION OR SERVICE, THE SAME SHALL B( UNDERSTOOD AS ALSO
CONFERRED UPON THE PROPER DEPARTMENT HEAD WHO SHALL HAVE
AUTHORITY TO ACT DIRECTLY IN PURSUANCE THEREOF, OR TO REVIEW,
MODIFY, OR REVOKE ANY DECISION OR ACTION OF SAID CHIEF OF
BUREAU, OFFICE, DIVISION OR SERVICE."
'SUPERVISION' AND 'CONTROL' OF A DEPARTMENT HEAD OVER HIS
SUBORDINATES HAVE BEEN DENNED IN ADMINISTRATIVE LAW AS FOLLOWS:
'IN ADMINISTRATIVE LAW, SUPERVISION MEANS OVERSEEING OR THE
POWER OR AUTHORITY OF AN OFFICER TO SEE THAT SUBORDINATE
OFFICERS PERFORM THEIR DUTIES.
If the latter fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform such duties.
Control, on the other hand, means the power of an officer to alter or 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.'

Review as an act of supervision and control by the justice secretary over the
fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative
remedies which holds that mistakes, abuses or negligence committed in the
initial steps of an administrative activity or by an administrative agency should
be corrected by higher administrative authorities, and not directly by courts.
As a rule, only after administrative remedies are exhausted may judicial
recourse be allowed."
Hence, after the Resolution of the provincial fiscal have already been affirmed
the resolution of the Prosecutor which in effect is a finding of the Secretary of
Justice himself as to the existence of probable cause to hold the accused for
trial, the Fiscal should not conduct another reinvestigation and the court should
not entertain the same.
The Secretary of Justice who has the power of supervision and control over

The provincial or city prosecutor has neither the personality nor the legal
authority to review or overrule the decision of the Secretary.
A motion for reinviestigation on the ground of newly discovered evidence must
be filed before the Secretary of Justice rules on an appeal from a resolution in a
preliminary investigation.
The Court still reiterated in the 2005 case of Serag, the 1994 case of Marcelo for
the Court to suspend the proceedings until after the Secretary of Justice had
resolved the motion with finality and cited Section 7 of DOJ Circular No. 70 which
provides:
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.

More importantly, the ruling in Solar Entertainment, Inc. v. Haw, that the thirtyday period to suspend the arraignment (as provided for in Section 2 of Circular
No. 38-98) is not absolute was reiterated in the 2006 case of Lumanlaw v.
Peralta, Jr.
Secretary of Justice to Refrain Only as Far as Practicable from Review of Cases Already
Filed in Court

In Dee v. Court of Appeals, the Supreme Court reiterated its pronouncement in

Crespo v. Mogul, that the Secretary of Justice as far as practicable, should refrain
from entertaining a petition for review of appeal from the action of the fiscal,
when the complaint or information has already been filed in court.
The matter should be left entirely for the determination of the Court.
The Court, however, clarified en bane in Roberts v. Court of Appeals, that 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 fiscal, when the complaint or
information has already been filed in Court."
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The Secretary of Justice is only enjoined to refrain, as far as practicable, from

entertaining a petition for review or appeal from the action of the prosecutor
once a complaint or information is filed in court.
In any case, the grant of a motion to dismiss, which the prosecution may file
after the Secretary of Justice reverses an appealed resolution, is subject to the
discretion of the court.
In Roberts, the Court went further by saying that Crespo could not have
foreclosed said power or authority of the Secretary of Justice "without doing
violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules
of Court."
While the section speaks of resolutions dismissing a criminal complaint,
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
ofPampanga effectively "dismissed" the complaint for murder. Accordingly,
petitioners could file an appeal under said Section 1.
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.

Once a petition for review is filed with the DOJ it behooved the RTC to suspend
the proceedings until after the Secretary of Justice had resolved the motion with
finality, including the consideration of the motion of the Provincial Fiscal for the
admission of the Second Amended Information for homicide, the dismissal of
Criminal Case No. 926 and the arraignment of the Petitioner for homicide. The
court reiterated its earlier ruling in Marcelo v. Court of Appeals (supra).
COMPARE
Under Section ll(c) of Rule 116 the period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the reviewing office. (This is a new Rule under
the 2000 Rules on the Revised Rules of Criminal Procedure.)
The period of suspension shall not exceed sixty (60) days counted from the filing of the
petition with the reviewing office after the expiration of said period, the trial court is bound
to arraign the accused or to deny the motion to defer arraignment.
Despite the foregoing provision and ruling, the Court in the 2005 case ofSerag (supra)
reiterated the 1994 ruling in the case ofMarcelo (supra) for the Court to suspend the
proceedings until after the Secretary of Justice had resolved the motion with finality and
cited Section 7 ofDOJ Circular No. 70 which provides:
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.

Section 1 is not to be literally applied in the sense that appeals by the offended
parties are allowed only in case of dismissal of the complaint, otherwise the last
paragraph of Section 4, Rule 112, Rules of Court would be meaningless.

Any arraignment made after the filing of the petition shall not bar the Secretary of Justice
from exercising his power of review.

Need to Defer Arraignment if DOJ had Already Given Due Course to Appeal

This may be interpreted to mean that while the Court may not suspend the arraignment
beyond the 60 day limitation, it may still suspend the trial pending final resolution by the
DOJ.

Where the DOJ had already given due course to the petitioner's petition for
review, it was premature for respondent judge to deny the motions to suspend
proceedings and to defer arraignment on the ground that "since the case is
already pending for trial, to follow whatever opinion the Secretary of Justice may
have on the matter would undermine the independence and integrity of this
court."
Thus the complainant cannot be stripped of the Secretary's authority to act on
and resolve the motion of the private complainant on the Prosecutor's insistence
that the accused be arraigned on June 6, 2002.
Indeed, under Section 7 of DOJ Circular No. 70, the Secretary of Justice may
resolve the said motion despite the arraignment of the petitioners.

Under the Speedy Trial Rule any period of delay resulting from other proceedings
concerning the accused including but not limited to those enumerated in Section 3 of Rule
119 in computing the time within which trial must commence shall be excluded
f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of
either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis
of his findings set forth in the order that the ends of justice served by taking such action outweigh the
best interest of the public and the accused in a speedy trial.* 9

The Supreme Court stressed that the real and ultimate test of the independence and
integrity of the court is not the filing of the motion to suspend at that stage of the
proceedings but the filing of a motion to dismiss or to withdraw the information on the
basis of a resolution of the petition for review reversing the Joint Resolution of the
investigating prosecutor.
Before that time, the pronouncement in Crespo v. Mogul, that "once a complaint or

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information is filed in court any disposition of the case as its dismissal or the conviction of
accused or acquittal of the accused rests in the sound discretion of the court," did not yet
become relevant or applicable.
However, once a motion to dismiss or withdraw the information is filed the trial judge may
grant or deny it, not out of subservience to the Secretary of Justice, but in faithful
excercise of judicial nrerogative on the duty of the trial judge to make an independent
assessment and finding of the evidence, it not being sufficient for the valid and proper
excercise of judicial discretion merely to accept the prosecution's word for its supposed
insufficiency.
In the absence of such a finding, the order of the court denying or granting the motion is
void.
The procedure of appeals to the Secretary of Justice were consolidated and modified by
Department of Justice Circular No. 70 dated July 3, 2000 entitled 2000 NFS RULE ON
APPEAL (Appendix F) and Department Circular No. 70-A dated July 10, 2000 DELEGATION
OF AUTHORITY TO REGIONAL STATE PROSECUTORS TO RESOLVE APPEALS IN CERTAIN
CASES.

Determination of Probable Cause Not a Supreme Court Function: Exceptions

The Court thus pointed out that ordinarily, the determination of probable cause
is not lodged with this Court.
Its duty in an appropriate case is confined to the issue of whether the executive
or judicial determination, as the case may be, of probable cause was done
without or in excess of jurisdiction with grave abuse of discretion amounting to
want of jurisdiction.
This is consistent with the general rule that criminal prosecutions may not be
restrained or stayed by injunction, preliminary or final.
There are, however, exceptions to the rule, among which were enumerated in
Brocka v. Enrile, as follows:
a.

To afford adequate protection to the constitutional rights of the accused;

b.

When necessary for the orderly administration of justice or to avoid

oppression or multiplicity or actions;

c.

When there is a prejudicial question;

d.

When the acts of the officer are without or in excess of authority;

e.

Where the prosecution is under an invalid law, ordinance or regulation;

f.

When double jeopardy is clearly apparent;

g.

Where the court has no jurisdiction over the offense;

h.

Where it is a case of persecution rather than prosecution;

i.

Where the charges are manifestly false and motivated by the lust for
vengeance;

j.

When there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied; and

k.

Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners.

Determination of Probable Cause, Either Executive or Judicial Prerogative

In criminal prosecutions, the determination of probable cause may either be an

executive or judicial prerogative. In People v. Inting, the Court aptly stated:
"JUDGES AND PROSECUTORS ALIKE SHOULD DISTINGUISH THE PRELIMINARY INQUIRY WHICH DETERMINES PROBABLE CAUSE FOR THE
ISSUANCE OF A WARRANT OF ARREST FROM A PRELIMINARY
INVESTIGATION PROPER WHICH ASCERTAINS WHETHER THE OFFENDER
SHOULD BE HELD FOR TRIAL OR RELEASED.
Even if the two inquiries are conducted in the course of one and the same proceeding,
there should be no confusion about the objectives.
The determination of probable cause for the warrant of arrest is made by the Judge.
The preliminary investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trial is the function of
the Prosecutor.
Preliminary investigation should be distinguished as to whether it is an investigation for
the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature.
It is part of the prosecution's job.
The second kind of preliminary investigation which is more properly called preliminary
examination is judicial in nature and is lodged with the judge."

In these exceptional cases, the Court may ultimately resolve the existence or
non-existence of probable cause by examining the records of the preliminary
investigation, and may also restrain a preliminary investigation.
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is pending at either the Department of Justice or the office of the President;

The Court in the "349" Pepsi-Cola cases recognized the several thousands of
complainants in Criminal Case No. Q-93-43198 (in which the order of arrest was
appealed to the DOJ), and several thousands more in different parts of the
country who are similarly situated as the former for being holders of "349" Pepsi
crowns, any affirmative holding of probable cause in the said case nay cause or
provoke, the filing of several thousand cases in various courts throughout the
country.
Inevitably, the petitioners would be exposed to the harassments of warrants of
arrest issued by such courts and to huge expenditures for premium on the bail
bonds and for travels from one court to another throughout the length and
breath of the archipelago for their arraignments and trials in such cases.
Worse, the filing of these staggering number of cases would necessarily affect
the trial calendar of our overburdened judges and take much of their attention,
time and energy, which they could devote to other equally, if not more,
important cases.
Such a frightful scenario would seriously affect the orderly administration of
justice, or cause oppression or multiplicity of actions a situation already long
conceded to be an exception to the general rule that criminal prosecutions may
not be restrained or stayed by injunction.
The Court, however, refused to reevaluate the evidence to determine if indeed
there is probable cause for the issuance of warrants of arrest in Criminal Case
No. 93-43298, as it did, in Allado and Webb for, as reasoned out by the Court,
the respondent Judge did not, in fact, find that probable cause exists, and if he
did he did not hrve the basis therefor as mandated by Soliven, Inting, Lim,
Allado, and even Webb. Moreover, the records of the preliminary investigation
are not with the court but with the DOJ.
The Supreme Court held that the trial court and the DOJ must be required to per form their duty.
The Court, therefore directed the DOJ to resolve on the merits, petitioner's
petition for review of the Joint Resolution of the Investigating prosecutors and
thereafter file the appropriate motion or pleading before respondent Judge which
he shall then resolve in the light of Crespo v. Mogul.
In the meantime, respondent Judge was directed to cease and desist from
further proceeding with the criminal case and to defer the issuance of warrants
of arrest against the petitioners.
Under section ll(c), Rule 116, Upon motion of the proper party, the arraignment
shall be suspended when a petition for review of the resolution of the prosecutor

Provided, That the period of suspension shall not exceed sixty (60) days counted
from the filing of the petition with the reviewing office.
Determination of Probable Cause in Preliminary Investigation Exclusively Pertains to
Prosecutor

In a separate opinion. Chief Justice Narvasa expressed concurrence with the

disposition of the case, that the determination of whether or not probable cause
exists to warrant the prosecution in court of the petitioners should be consigned
and entrusted to the Department of Justice as reviewer of the findings of the
public prosecutor. Further elucidating on his reasons, the Chief Justice stated:
"IN THIS SPECIAL CIVIL ACTION, THIS COURT IS BEING ASKED TO
ASSUME THE FUNCTION OF A PUBLIC PROSECUTOR.
IT IS BEING ASKED TO DETERMINE WHETHER PROBABLE CAUSE EXISTS
AS REGARDS PETITIONERS.
More concretely, the Court is being asked to examine and assess such evidence as has
thus far been submitted by the" parties and, on the basis thereof, make a conclusion as to
whether or not it suffices 'to engender a well founded belief that a crime has been
committed and that the respondent is probably guilty thereof and should be held for trial.'"

It is a function that this Court should not be called upon to perform.

It is a function that properly pertains to the public prosecutor, one that, as far as
crimes cognizable by a Regional Trial Court are concerned, and notwithstanding
that it involves an adjudicative process of a sort exclusively pertains, by law, to
said executive officer, the public prosecutor.
It is moreover a function that in the established scheme of things, is supposed to
be performed at the very genesis of indeed, prefatorily to, the formal
commencement of a criminal action.
The proceedings before a public prosecutor, it may well be stressed, are
essentially preliminary, prefatory, and cannot lead to a final, definite and
authoritative adjudgment of the guilt or innocence of the persons charged with a
felony or crime.
Whether or not that function has been correctly discharged by the public
prosecutor i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case is a matter that the trial court itself
does not and may not be compelled to pass upon.
There is no provision of law authorizing an aggrieved party to petition for such a
determination.
It is not for instance permitted for an accused, upon the filing of an information
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against him by the public prosecutor, to pre-empt trial by filing a motion with the
Trial Court praying for the quashal or dismissal of the indictment on the ground
that the evidence upon which the same is based is inadequate.
Nor is it permitted, on the antipodal theory that the evidence is in truth
adequate, for the complaining party to present a petition before the Court
praying that the public prosecutor be compelled to file the corresponding
information against the accused.
(N.B.: Where, however, the public prosecutor finds that probable cause exists as
regards several suspects but unaccountably files the information only against
some, but not all of them, mandamus will lie to compel him to include in the
indictment those he has excluded.)
Besides, the function that this Court is asked to perform is that of a trier of facts
which it does not generally do, and if at all, only exceptionally, as in an appeal in
a criminal action where the penalty of life imprisonment, reclusion perpetua, or
death has been imposed by a lower court (after due trial, of course), or upon a
convincing showing of palpable error as regards a particular factual conclusion in
the judgment of such lower court.
What, in sum, is being attempted in this Court is to reverse the established and
permanent order of things for the Court to act before trial and judgment by a
lower tribunal; to require it to perform the role of trier of facts which, to
repeat, it does not generally do, the issues properly cognizable by it being
normally limited exclusively to questions of law to make it do something that
even the trial court may not do at this stage of the proceedings itself to
determine the existence of probable cause; to usurp a duty that exclusively
pertains to an exclusive official (supra, at note 3) to conduct a preliminary
investigation or review the findings and conclusions of the public prosecutor who
conducted one.
The matter is not within the review jurisdiction of the Court as this is clearly
specified in the Constitution, a jurisdiction which even the Congress may not
increase "without * * * (the Court's) advice and concurrence."
From the pragmatic aspect, it is also an undesirable thing, for the result could
well increase the already considerable work load of the Court.
Furthermore, any judgment of this Court in this action would be inconclusive, as
above intimated. It would not necessarily end the case.
It would not, for instance, prevent the complaining witnesses from presenting
additional evidence in an effort to have the information ultimately filed in the
proper court against the accused, or the respondents from asking for a
reinvestigation and presenting additional or other evidence warranting the
dropping of the case.

The Court would thus have wielded judicial power without a definite settlement
of rights and liabilities.
There are set rules, and procedural mechanisms in place for the determination
of probable cause at the level of the public prosecutor, the Department of Justice
and, to a certain extent, the Regional Trial Court.
No recourse to this Court should normally be allowed to challenge their
determinations and dispositions.
I therefore vote to refer to the Department of Justice for resolution, the petition
for the review of the Joint Resolution issued by Investigating Prosecutor Ramon
Gerona.
Finding of Probable Cause by Prosecutor To hold Accused For Trial Distinguished From
Finding of Probable Cause of Judge To Issue Warrant

The foregoing disquisition of the Chief Justice should, however, be taken in the
light of the distinction of whether the preliminary investigation is an
investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for
the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature.
It is part of the prosecution's job.
The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge, but it
is only after the first kind have been exhausted, that the second kind comes in
and the Crespo rule applies.
Before that time, the pronouncement in Crespo that "any disposition of the case
as its dismissal or the conviction or acquittal of the accused rests in the
discretion of the court "is not yet relevant and applicable.
When the second kind comes in, the court must, then exercise independent
judgment, personally evaluate the documents and evidence adduced before the
Fiscal, and determine for itself the existence of probable cause for the issuance
of warrants of arrest.
If there is a motion to dismiss or withdraw the information, the court must
exercise its judicial prerogative, make an independent assessment of the
evidence and make its own findings it not being sufficient for the valid and
proper exercise of judicial discretion merely to accept the prosecution's word for
its supposed insufficiency.
Finding by Judge of Probable Cause Not Subject to Judicial Review

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Moreover, a finding probable cause by the judge for purposes of issuing a

warrant of arrest after an evaluation of the documents and other supporting
evidence, should no longer, in the meantime, be subject to judicial review,
except in the regular course of appeal, for to paraphrase the Chief Justice in his
separate opinion, that would be asking the court to examine and assess such
evidence as has thus far been submitted by the parties, before the trial, and, on
the basis thereof make a conclusion as whether or not, it suffices to establish the
guilt of the accused.

If during the pendency of the civil action, an information should be presented by

the prosecuting attorney, the civil action shall be suspended until the
termination of the criminal proceedings.

There are set of rules, and procedural mechanisms in place for the
determination of probable cause at the level of the public prosecutor, the
Department of Justice and, to a certain extent, the Regional Trial Court. No
recourse to the higher court should normally be allowed to challenge their
determinations and dispositions.

(From the Office of the President the aggrieved party may file an appeal with
the Court of Appeals pursuant to Rule 43 [Supra])

Findings of Probable Cause as Prosecutors Entitled to Highest Respect

The prosecutor's finding of probable cause is entitled to highest respect.

This is a function that the court should not be called upon the perform.
As a general rule, if the information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on the part of public
prosecutor courts should not dismiss it for want of evidence.
Remedy Where Minister of Justice Refuses Filing of Case

The remedy of complainant in a case where the Minister of Justice would not
allow the filing of a criminal complaint against an accused because it is his
opinion that the evidence is not sufficient to sustain an information for the
complaint with which the respondents are charged of, is to file a civil action as
indicated in Article 35 of the Civil Code, which provides:
"ART. 35. WHEN A PERSON, CLAIMING TO BE INJURED BY A CRIMINAL
OFFENSE, CHARGES ANOTHER WITH THE SAME, FOR WHICH NO INDEPENDENT CIVIL ACTION IS GRANTED IN THIS CODE OR ANY SPECIAL
LAW, BUT THE JUSTICE OF THE PEACE FINDS NO REASONABLE GROUNDS
TO BELIEVE THAT A CRIME HAS BEEN COMMITTED, OR THE
PROSECUTING ATTORNEY REFUSES OR FAILS TO INSTITUTE CRIMINAL
PROCEEDINGS, THE COMPLAINANT MAY BRING A CIVIL ACTION FOR
DAMAGES AGAINST THE ALLEGED OFFENDER.
SUCH CIVIL ACTION MAY BE SUPPORTED BY A PREPONDERANCE OF
EVIDENCE. UPON THE DEFENDANT'S MOTION, THE COURT MAY REQUIRE
THE PLAINTIFF TO FILE A BOND TO INDEMNIFY THE DEFENDANT IN
CASE THE COMPLAINT SHOULD BE FOUND TO BE MALICIOUS."

Availability of Appeal From DOJ

The Resolution of the DOJ Secretary is appealable administratively to the Office
of the President where the offense charged is punishable by Reclusion perpetua.

Unavailability of Mandamus or Certiorari To Compel Filing of Cases

In Lim u. Court of Appeals, the Court reiterated the rule of long standing that the
matter of deciding who to prosecute is a prerogative of the prosecuting fiscal as
a quasi-judicial officer, who assumes full discretion and control of the case and
this faculty may not be interfered with, for a prosecution may not be compelled
by mandamus to file a criminal information where he is convinced that he does
not have the necessary evidence against an individual, x x x."
While the prosecuting officer is required by law to charge all bhose who, in his
opinion, appear to be guilty, he nevertheless cannot be compelled to include in
the information a person against whom he believes no sufficient evidence of
guilt exists.
The appreciation of the evidence involves the use of discretion on the part of the
arosecutor.
The decision of the prosecutor may be reversed or modified by the Secretary of
Justice or in special cases by the President of the Philippines.
But even the Supreme Court cannot order the prosecution of a person against
whom the prosecutor does not find sufficient evidence to support at least a
prima facie case.
The courts try and absolve or convict the accused but as a rule have no part in
the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a grave
abuse of discretion that will justify judicial intrusion into the precincts of the
executive.
But in such a case, the proper remedy to call for such exception is a petition for
mandamus, not certiorari or prohibition.
Moreover, before resorting to this relief, the party seeking the inclusion of
another person as a co-accused in the same case must first avail itself of other
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adequate remedies such as the filing of a motion for such reconsideration of

decision.
The rule is thus settled that the court's duty in an appropriate case is confined to
determining whether the executive or judicial determination, as the case may
be, of probable cause was done without or in excess of jurisdiction or with grave
abuse of discretion.
Thus, although it is entirely possible that the investigating fiscal may
erroneously exercise the discretion lodged in him by law, this does not render his
act amenable to correction and annulment by the extraordinary remedy of
correction and annulment by the extraordinary remedy of certiorari, absent any
showing of grave abuse of discretion amounting to excess of jurisdiction.
The remedy of mandamus does not lie to compel public respondents to file an
Information against private respondents.

Remedies are:
(1)
(2)
(3)
(4)
(5)

posting bail;
ask provincial fiscal for reinvestigation;
petition for review;
motion to quash information;
if denied appeal, the judgment after trial.104
Exception When Certiorari as a Remedy Allowed

However, certiorari was allowed as a remedy to annul dismissal of the petition

for review by the Secretary of Justice for lack of jurisdiction since the dispute
involves an intra-corporate one which (then) falls under the jurisdiction of the
Securities and Exchange Commission.

There being no showing of grave abuse of discretion on the part of public

respondents which would warrant the overturning of their decision to dismiss the
complaint against the private respondents, corollarily, there is also no ground to
issue a writ of mandamusl

Certiorari was allowed also to annul the Order of the ETC Judge for the issuance
of warrant of arrest on the ground that there was no probable cause.

Where the preliminary investigation falls under the first kind, the decision
whether or not to dismiss the complaint against private respondents is
necessarily dependent on the sound discretion of the prosecuting fiscal, and
ultimately that of the Secretary or Undersecretary (acting for the Secretary) of
Justice (which ordinarily is not compellable by mandamus.

In Mendoza-Arce v. Office of the Ombudsman (Visayas), this Court held that the acts of a
quasi-judicial officer may be assailed by the aggrieved party via a petition for certiorari
and enjoined:

Exception When Mandamus Available

However, if government prosecutors make arbitrary choices of those they would
prosecute under a particular law, excluding from the indictment certain
individuals against whom there is the same evidence as those impleaded, the
fault is not in the law but in the prosecutors themselves whose duty it is to file
the corresponding information or complaint against all persons who appear to be
liable for the offense involved, a duty that should be performed responsibly,
without discrimination, arbitrariness or oppression.
If that duty is not performed evenhandedly, the persons aggrieved are not without remedy.
They may avail of the remedy of mandamus to compel compliance with that
duty by the prosecutors concerned.
NOTE: It was held in Yap u. IAC, that certiorari does not lie to annul the Municipal
judge's order finding probable cause that the accused committed the crime
charged and consequently ordering their arrest.

Summing up, the Court in Ching v. The Secretary of Justice held:

(a) when necessary to afford adequate protection to the constitutional rights of the
accused;
(b) when necessary for the orderly administration of justice;
(c) when the acts of the officer are without or in excess of authority;
(d) where the charges are manifestly false and motivated by the lust for vengeance; and
(e) when there is clearly no prima facie case against the accused.
The Court also declared that, if the officer conducting a preliminary investigation (in that
case, the Office of the Ombudsman) acts without or in excess of his authority and resolves
to file an Information despite the absence of probable cause, such act may be nullified by
a writ of certiorari.
If the Secretary of Justice reverses the Resolution of the Investigating Prosecutor who
found no probable cause to hold the respondent for trial, and orders such prosecutor to file
the Information despite the absence of probable cause, the Secretary of Justice acts
contrary to law, without authority and/or in excess of authority.
Such resolution may likewise be nullified in a petition for certiorari under Rule 65 of the
Revised Rules of Civil Procedure.
In the same manner, just as the Court may resolve to overrule the finding of probable
cause as in Allado v. Diokno, the Court may also overrule the decision of the judge
reversing a finding of probable cause, also on the ground of grave abuse of discretion.

144

However, while probable cause should be determined in a summary manner,

there is a need to examine the evidence with care to prevent material damage
to a potential accused's constitutional right to liberty and the guarantees of
freedom and fair play and to protect the State from the burden of unnecessary
expenses in prosecuting alleged offenses and holding trials arising from false,
fraudulent or groundless charges.

a.

The provisions of the former Section 5 relating to the preliminary investigation by a

judge were deleted. Section 6 was modified (bb) by deleting reference to preliminary
investigation by the MTC are changing the same to prosecutor accordingly transposed
to Section 5.

b.

The first paragraph on the issuance of warrant of arrest by the Regional Trial Court is
in conformity with the rulings of the Supreme Court.

Effect of Delay in Conducting Preliminary Investigation

The former Rule simply provides that a warrant of arrest may be issued by the
Regional Trial Court upon the filing of the information. This was because before the
1987 constitution, a warrant of arrest may be issued by the Regional Trial Court on the
basis merely of the certification of the investigating fiscal that there is probable cause.

The long delay in the termination of preliminary investigation by the Tanodbayan

is violative of the constitutional right of the accused to due process.

Under the 1973 not only the Judge but also by any responsible officer, which includes
a fiscal, may determine Constitution probable cause.

Substantial adherence to the requirements of the law governing the conduct of

preliminary investigation, 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.

This is no longer true. Under the 1987 Constitution it is only the judge who is
authorized to determine personally the existence of probable cause.
Hence, jurisprudence evolved, that for purposes of determining probable cause for the
issuance of a warrant of arrest, the judge must personally evaluate the prosecu tor's
report, the evidence adduced during the preliminary investigation.
These jurisprudence are now capsulized in the present rule.

Not only under the broad umbrella of the due process clause, but under the
constitutional guarantee of "speedy disposition" of cases as embodied in Section
16 of the Bill of Rights (both in the 1973 and the 1987 Constitution), the
inordinate delay is violative of the accused's constitutional rights.

Under this rule, the judge must determine the existence of probable cause within ten
(10) days from the filing of the information.

A delay of close to three (3) years cannot be deemed reasonable or justifiable in

the light of the circumstances obtaining in the case.

This is intended to prevent prolonged detention of a person who is arrested without a

warrant, only to turn out that the arrest was not lawful.

The suggestion that the long delay in terminating the preliminary investigation
should not be deemed fatal, for even the complete absence of a preliminary
investigation does not warrant dismissal of the information, is without merit.

If the accused had already been arrested, the judge must within the same period often
(10) days determine the existence of probable cause and issue an order of
commitment.

The absence of a preliminary investigation can only be corrected by giving the

accused such investigation.
But an undue delay in the conduct of preliminary investigation cannot be
corrected, for until now, man has not yet invented a device for setting back the
time.

The judge may, on the other hand, disregard the prosecutor's report and require the
submission of additional evidence to determine the existence of probable cause. If the
judge still finds no probable cause, he shall dismiss the case.
c.

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 counsel.

In cases falling under the original jurisdiction of the municipal trial court, which require
a preliminary investigation, the preliminary investigation shall be conducted by the
prosecutor
1)

If such preliminary investigation is conducted by a prosecutor, the procedure in

the preceding section (5a) on the issuance of a warrant arrest shall be applied
upon the filing ol the information.
Under this situation, probable cause may be determined by the Judge on the basis
of the evidence adduced before the prosecutor, which conducted the preliminary
investigation.

SEC. 5.
When Warrant of Arrest may Issue
2)

COMMENT:

145

Subsection (c) is new provision. When warrant of arrest not necessary. A

warrant of arrest shall not issue if the accused is already under detention

satisfy himself of the existence of probable cause.

pursuant to a warrant issued by the municipal trial court in accordance with

paragraph (b) of this section, or if the complaint or information was filed pursuant
to section 6 of this Rule or is for an offense penalized by fine only.

In satisfying himself of the existence of probable cause for the issuance of a

warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses.

The court shall then proceed in the exercise of its original jurisdiction.
Under this subsection, a warrant of arrest need not be issued if the accused is
already under detention pursuant to a warrant issued by the Municipal Trial Court
in accordance with section (5b) of this rule or if the complaint or information was
filed pursuant to section 6 hereof, the court shall then proceed in the exercise of
its original jurisdiction.

Following established doctrine and procedure, he shall:

(1) personally evaluate the report and the supporting documents submitted
by the fiscal regarding the existence of probable cause and, in the basis
thereof, issue a warrant of arrest; or

Warrant of Arrest, Defined

(2) if on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses ;o aid him in arriving at a conclusion as to the existence of
probable cause.

A warrant of arrest is a legal process issued by competent authority, directing

the arrest of a person or persons upon grounds stated therein.
It is usually directed to regular officers of the law, but occasionally, it is issued to
a private person named in it.

Sound policy dictates this procedure, otherwise judges would he unduly

laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.

John Doe Warrants

Warrant of arrests issued against "John Doe" whom the witnesses to the
complaint could not identify are in the nature of a general warrant, one of a class
of writs long proscribed as unconstitutional and once anathematized as "totally
subversive of the liberty of the subject."

b.

Such warrants are void because they violate the constitutional injunction that
warrants of arrest should particularly describe the person or persons to be
seized.

* * * the Judge does not have to personally examine the complainant and his
witnesses.

Judge May No Longer Rely on FiscaLs Certification

The Prosecutor can perform the same functions as a commissioner for the
taking of the evidence.

The earlier rulings of the Supreme Court which allows the Judge in the exercise
of its discretion, whether or not to determine the existence of probable cause
and issue a warrant of arrest on the basis of the Fiscal's Certification which were
capsulized in Circular No. 12, dated November 30, 1987 have in effect been
abandoned by the Supreme Court in the light of the 1987 Constitution which
provides that no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to
be seized.
a.

The doctrine was reiterated in Enrile v. Salazar, holding that it is not the
unavoidable duty of the judge to make a personal examination, it being
sufficient that he follows established procedure by personally evaluating the
report and the supporting documents submitted by the prosecutor.

However, there should be a report and necessary documents supporting the

Fiscal's bare certification.
All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case.
We cannot determine beforehand how cursory or exhaustive the Judge's examination should be.

The withdrawal started with the case of Soliven v. Makasiar decided after
the effectivity of the 1987 Constitution where the Supreme Court then held
that the addition of the word "personally" after the word "determined"
underscores the exclusive and personal responsibility of the issuing judge to
6

The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution.
146

(3) the records submitted to the trial court were incomplete and insufficient
from which to base a finding of probable cause; xxx. petitioners
postulate that it was impossible to conduct a searching examination of
witnesses and evaluation of the documents on the part of the judge.

It can be as briefer as detailed as the circumstances of each case require.

To be sure, the Judge must go beyond the Prosecutor's certification and
investigation report whenever necessary.

After pointing out the

warrant of arrest and
Court stressed that
determine personally
accused.

He should call for the complainant and witnesses themselves to answer the
court's probing questions when the circumstances of the case so require.
It is the exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause for the issuance of a warrant of
arrest, the judge is not required to personally examine the complainant and
his witnesses.

differences in the issuance of a search warrant and a

its ruling in Soliven v. Makasiar (supra), the Supreme
before issuing warrants of arrest, judges merely
the probability, and not the certainty of guilt of an

In doing so, judges do not conduct a de novo hearing to determine the

existence of probable cause.

Following established doctrine and procedure, he shall:

They just personally review the initial determination of the prosecutor

finding a probable cause to see if it is supported by substantial evidence.

(1) personally evaluate the report and the supporting documents submitted
by the fiscal regarding the existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or

The sufficiency of the review process cannot be measured by merely

counting minutes and hours.

(2) if on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.

The fact that it took the judges a few hours to review and affirm the
probable cause determination of the DOJ panel does not mean they made no
personal evaluation of the evidence attached to the records of the case.
Explaining its ruling in Allado u. Diokno, which reversed the trial court's
finding of probable cause and ordered the outright dismissal of the case, the
Court stated that the Allado ruling is predicated on the utter failure of the
evidence to show the existence of probable cause.

In Cruz v. People (supra), petitioner would have respondent court order the
production of the records of the preliminary investigation in its
determination of the existence of probable cause for the issuance of the
warrant of arrest.

Not even the corpus delicti of the crime was established by the evidence of
the prosecution in that case.

The Supreme Court held: "First and foremost, as hereinabove stated, in a

preliminary examination for the issuance of a warrant of arrest, the court is
not tasked to review in detail the evidence submitted during the preliminary
investigation.

Given the clear insufficiency of the evidence on record, the court there
stressed the necessity for the trial judge to make a further personal
examination of the complainant and his witnesses to reach a correct
assessment of the existence or non existence of probable cause before
issuing warrants of arrest against the accused.

It is sufficient that the judge personally evaluates the report and supporting
documents submitted by the prosecution in determining probable cause."
In Webb u. De Leon, the Supreme Court again reiterated the doctrine in the
seminal case of Soliven v. Makasiar (supra), in the issuance of warrants of
arrest by the RTC. Petitioners in the Webb case challenged the validity of the
warrants of arrest issued in said case on the following grounds:

The case at bar rests on a different factual setting.

(1) the issuance of the warrants of arrest was made in a matter of few
hours;
(2) the failure of the judge to issue orders of arrest;

The Court concluded:

The various types of evidence extant in the records of the case provide
substantial basis for a finding of probable cause against the petitioners.

"Clearly then, the Constitution, the Rules of Court, and our case law repudiate the
submission of petitioners that respondent judges should have conducted searching

147

examination of witnesses before issuing warrants of arrest against them.

They also reject petitioners contention that a judge must first issue an order of arrest
before issuing a warrant of arrest.
There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of
arrest."

Outright Dismissal
The absence of probable cause for the immediate issuance of a warrant of arrest
is not a ground for the quashal of the information but is a ground for the
dismissal of the case under Section 5[6], Rule 112 which is without prejudice.
The trial court is mandated to immediately dismiss the case upon finding that no
probable cause exists to issue a warrant of arrest and after having evaluated the
resolution of the fiscal and supporting information.
The Need for Personal Evaluation of Documents Not Merely Resolution

The absence or presence of probable cause is to be determined from the

material avernments of the information the appendages thereof as enumerated
in Rule 112, Section 8 of the Rules.
The Courts attention was again focused on the issuance of warrants of arrest in
the en bane decision in Roberts u. Court of Appeals, where the court emphasized
the need for the court prior to the issuance of the warrant of arrest to evaluate
"the affidavits, the transcript of stenographic notes (if any), and all other
supporting documents behind the Prosecutor's certification which are material in
assisting the Judge to make his determination of probable cause."
The teachings then of Soliven, Inting, Lim, Allado, and Webb, reject the
proposition that the investigating prosecutor's certification in an information or
his resolution which is made the basis for the filing of the information, or both,
would suffice in the judicial determination of probable cause in the judicial
determination of probable cause for the issuance of a warrant of arrest.
The court went on to explain that in Webb, this Court assumed that since the
respondent Judges had before them not only the 26 page resolution of the
investigating panel, but also the affidavits of the prosecution witnesses and even
the counter-affidavits of the respondents, they (judges) made a personal
evaluation of the evidence attached to the records of the case.
On the Need to Make Separate Finding of Probable
It was held that where, the information was not accompanied by any document,
and there is nothing in the records or evidence supporting the prosecutor's

finding of probable cause except the Joint Resolution as bases thereof and does
not have the records or evidence supporting the prosecutor's finding of probable
cause, the Court declared the Order for the issuance of the warrant of arrest as
invalid.
The court found it strange that there is no specific finding of probable cause but
a mere directive to issue the warrants of arrest.
The Court rejected the argument that the directive presupposes a finding of
probable cause.
"Compliance with a constitutional requirement for the protection of individual
liberty cannot be left to presupposition, conjecture or even convincing logic."
The Court in Roberts rejected the court of appeals' finding that the Joint
Resolution is sufficient in itself to have been relied upon by the respondent judge
in convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest.
Thus: "To bolster its finding, the Court of Appeals held that the mere silence of
the records or the absence of any express declaration in the questioned order of
May 17, 1993 as to where the respondent Judge based his finding of probable
cause does not give rise to any adverse inference on his part.
The fact remains that the Joint Resolution was at respondent Judge's disposal at
the time he issued the Order for the issuance of the warrants of arrest.
After all, respondent Judge enjoys in his favor the presumption of regularity in
the performance of his official duties.
And this presumption prevails until it is overcomed by clear and convincing
evidence to the contrary.
Every reasonable intendment will be made in support of the presumption, and in
case of doubt as to an officer's act being lawful or unlawful, it should be
construed to be lawful."
The Court expressed its inability to agree with this disquisition, for it merely
assumes at least two things: (1) that respondent Judge Asuncion had read and
relied on the Joint Resolution; and (2) he was convinced that probable cause
exists for the issuance of warrants of arrest against the petitioners.
Nothing in the records provides reasonable basis for these assumptions.
In his assailed order, the respondent Judge made no mention of the Joint
Resolution, which was attached to the records of Criminal Case No. Q-93-43198
148

on 22 April 1993. Neither did he state, he found probable cause for the issuance
of warrants of arrest.
And, for an undivinable reason, he directed the issuance of warrants of arrest
only after June 21, 1993. If he did read the Joint Resolution and, in so reading,
found probable cause, there was absolutely no reason at all to delay for more
than one month the issuance of warrants of arrest.
The most probable explanation for such delay could be that the respondent
Judge had actually wanted to wait for a little while for the DOJ to resolve the
petition for review.
All told, it would seem from the foregoing discourse of the court that there is
need to issue an order finding probable cause prior to the issuance of a warrant
of arrest.
Dissent on Need to Issue Separate Order
The foregoing statements would appear to negate the pronouncement in Webb
that there is no need for the court to first issue an order of arrest before issuing
a warrant of arrest, and the presumption of regularity resorted to in justifying
the issuance of a warrant of arrest from the mere availability of the records
before the court in Enrile v. Salazar (supra), even in the absence of a separate
finding of probable cause.
In his dissent with the concurrence of Justice Mendoza, Justice Reynato Puno
found as sufficent basis to justify a finding of probable cause the 17-page Joint
Resolution of the Investigating Prosecutor, and pointed out that Soliven and
other related cases did not establish the absolute rule that unless a judge has
the complete records of the preliminary investigation before him, he cannot lawfully determine probable cause and issue a warrant of arrest.
Soliven only held that it is the personal responsibility of the judge to determine
probable cause on the basis of the report and supporting documents submitted
by the fiscal; that he must independently evaluate the report and supporting
documents if he finds no probable cause on the basis thereof, he can require
submission of additional supporting affidavits of witnesses.
There is nothing in Soliven that requires prosecutors to physically submit to the
judge the complete records of the preliminary investigation especially if they are
voluminous.
Nor is there anything in Soliven that holds the omission to physically submit the
complete records of the case would constitutionally infirm a finding of probable
cause by a judge even if it was made on the basis of an exhaustive prosecutor's
report or resolution.

Indeed, in Webb v. de Leon, we sustained the finding of probable cause made by

the trial judge even if the complete records of the preliminary investigation were
not elevated to the said judge.
Justice Puno further maintains that there was no need for respondent Judge to
make a finding of probable cause.
"When Judge Asuncion issued the warrants of arrest against petitioners, I
assume as did the respondent Court of Appeals, that he had studied the In formation and 17-page Resolution of the prosecutors and that he agreed with
the prosecutor's findings of probable cause.
It is unnecesary for him to issue an Order just to reiterate the findings of the
prosecutors, xxx'
Apparently to reconcile these conflicting views, the Court en bane in Ho v.
People, laid down the following principles:
SUMMARY OF PRINCIPLES
The court en banc summed up the following principles:
First, The determination of probable cause by the prosecutor is for a purpose different from
that which is to be made by the judge, Whether there is reasonable ground to believe that
the accused is guilty of the offense charged and should be held for trial is what the
prosecutor passes upon.
The judge, on the other hand, determines whether a warrant of arrest should be issued
against the accused, i.e., whether there is a necessity for placing him under immediate
custody in order not to frustrate the ends of justice.
Thus, even il both should base their findings on one and the same proceeding 01 evidence,
there should be no confusion as to their distinct objectives,
Second, since their objectives are different, the judge cannot rely solely on the report of
the prosecutor in finding probable cause to justify the issuance of a warrant of arrest.
Obviously and understandably, the contents of the prosecutor's report will support his own
conclusion that there is reason to charge the accused of an offense and hold him for trial.
However, the judge must decide independently.
Hence, he must have supporting evidence, other than the prosecutor's bare report, upon
which to legally sustain his own findings on the existence (or nonexistence) of probable
cause to issue an arrest order.
This responsibility of determining personally and independently the existence of
nonexistence of probable cause is lodges in him by no less than the most basic law of the
land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the

149

litigation process by forwarding to the latter not only the information and his bare
resolution finding probable cause, but also sc much of the records and the evidence on
hand as to enable His honoi to make his personal and separate judicial finding on whether
tc issue a warrant of arrest.
Lastly, it is not required that the complete or entire records oi the case during the
preliminary investigation be submitted to and examined by the judge.
We do not intend to unduly burden trial courts by obliging them to examine the complete
records of every case all the time simply for the purpose of ordering the arrest of an
accused.
What is required, rather that the judge must have sufficient supporting documents (such
as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his independent judgment
or, at the very least, upon which to verify the findings of the prosecutor as to the existence
of probable cause.

hold the accused for trial is an executive function as distinguished from the
determination by the judge in the issuance of a warrant of arrest is a judicial
function, which must be determined separately, the Court, nonetheless ruled
that the findings of the prosecutor is entitled to the highest respect.
Thus, "Verily, a judge cannot be compelled to issue a warrant of arrest if he or
she deems that there is no probable cause for doing so.
Corollary to this principle, the judge should not override the public prosecutor's
determination of probable cause to hold an accused for trial, on the ground that
the evidence presented to substantiate the issuance of an arrest warrant was
insufficient, as in the present case.
Indeed, it would be unfair to expect, the prosecution to present all the evidence
needed to secure the conviction of the accused upon the filing of the information
against the latter.

The point is: he cannot rely solely and entirely on the prosecutor's recommendation.
Although the prosecutor enjoys the legal presumption of regularity in the performance of
his official duties and functions, which in turn gives his report the presumption of accuracy,
the Constitution, we repeat, commands the judge to personally determine probable cause
in the issuance of warrants of arrest.
This Court has consistently held that a judge fails in his bounden duty if he relies merely
on the certification or the report of the investigating officer.
Thus, a warrant of arrest is void where the court did not personally determine the
existence of probable cause but based the same merely on: (1) the resolution of the Panel
of Investigators of the Ombudsman recommending the filing of the information, and (2)
memorandum of the office of the Special Prosecutor denying the existence of a prejudicial
question.
The court, however clarified that: "It is not required that the issuing judge categorically
state in his resolution that he personally determined the existence of probable cause.
It is enough that it may easily be gleaned from the resolution directing the issuance of the
warrant that he performed his duty in accordance with the constitutional mandate on the
matter.
Findings of Probable Cause as Prosecutors Entitled to Highest Respect

The prosecutor's finding of probable cause is entitled to highest respect.

This is a function that the court should not be called upon to perform.
As a general rule, if the information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on the part of public
prosecutor, courts should not dismiss it for want of evidence.
While recognizing that the determination by the Prosecutor of probable cause to

The reason is found in the nature and the objective of a preliminary

investigation.
Here, the public prosecutors do not decide whether there is evidence beyond
reasonable doubt of the guilt of the person charged; they merely determine
"whether there is sufficient ground to engender a well-founded belief that a
crime x x x has been committed and that the respondent is probably guilty
thereof, and should be held for trial."
Evidentiary matters must be presented and heard during the trial.
Therefore, if the information is valid on its face, and there is no showing of
manifest error, grave abuse of discretion and prejudice on the part of the public
prosecutor, the trial court should respect such determination.
The court stressed that its rulings in Allado v. Diokno and Salonga v. Pano, which
set aside the trial court's finding's on the existence of probable cause, are
exceptions to the general rule and may be invoked only if similar circumstances
are clearly shown to exist.
Ruling Does Not Deviate from Need of Personal Evaluation

The foregoing principles refer to the findings of the prosecutor for the purpose of
filing the case in court which should be distinguished from the determination by
the judge of probable cause foi the issuance of a warrant of arrest.
Thus, although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties, which in turn gives his report the presumption
of accuracy, nothing less than the fundamental law of the land commands the
judge to personally determine probable cause in the issuance of warrants of
150

arrest.
A judge fails in this constitutionally mandated duty if he relies merely on the
certification or report of the investigating officer.

accused.
If the judge finds probable cause on the basis thereof, he shall issue a warrant of
arrest or, if the accused has already been arrested, a commitment order
otherwise.

In merely stating that he had no reason to doubt the validity of the certification
made by the investigating prosecutor, the judge has abdicated his duty under
the constitution to determine on his own the issue of probable cause before
issuing a warrant of arrest.

He may either dismiss the case outright or to aid him in determining the
existence of probable cause; require additional evidence within then (10) days
from notice should the Judge still find no probable cause, he shall dismiss the
case.

Consequently, the warrant of arrest should be declared null and void.

The Court in Government of the United States of America v. Hon. Guillermo G.

Purganan, held that:

In Cojuangco v. Sandiganbayan, the court declared the warrant of arrest issued

in said case void because the respondent court did not personally determine the
existence of probable cause but based the same merely on:
(1) the resolution of the Panel of Investigators of the Ombudsman
recommending the filing of the information and
(2) memorandum of the Office of the Special Prosecutor denying the
existence of a prejudicial questions.
The Judge may order the production of the records and determine on the basis
thereof the existence of probable cause or return the record and direct the Fiscal
to conduct further investigation.
Effect of Refusal by Prosecution to Adduce Additional Evidence

To determine probable cause for the issuance of arrest warrants, the Constitution
itself requires only the examination under oath or affirmation of
complainants and the witnesses they may produce.
There is no requirement to notify and hear the accused before the issuance of
warrants of arrest.
In Ho v. People and in all the cases cited therein, never was a judge required to
go to the extent of conducting a hearing just for the purpose of personally
determining probable cause for the issuance of a warrant of arrest.
All we required was that the "judge must have sufficient supporting documents
upon which to make his independent judgment, or at the very least, upon which
to verify the findings of the prosecutor as to the existence of probable cause."

The Court held that the trial court may disregard the Fiscal's report and require
submission of supporting affidavits of witnesses.
The failure or refusal of the petitioner to present further evidence, although a
good ground for the respondent Judge not to issue a warrant of arrest, is not a
legal cause for dismissal.

In Webb v. De Leon, the Court categorically stated that a judge was not
supposed to conduct a hearing before issuing a warrant of arrest:

The judge was directed to proceed with the case, it being understood that, if
within ten (10) days after notice by the judge, the petitioner fails or refuses to
present other evidence, the dismissal will stand for lack of prosecution.
However, va.Alla.do v. Diokno, it was held that the Judge may dismiss the case
outright for lack of probable cause.

In doing so, judges do not conduct a de novo hearing to determine the existence
of probable cause.

Determination of Probable Cause for Issuance of Warrant of Arrest

At most, in cases of clear insufficiency of evidence on record, judges merely

further examine complainants and their witnesses.

No Need of Conducting Hearing For Judicial determination of Probabe Cause to

Issue Warrant
Under the present rule the Rule does not require case to be set for hearing to
determine probable cause for the issuance of a warrant for the arrest of the

"Again, we stress that before issuing warrants of arrest, judges merely

determine personally the probability, not the certainty of guilt of an accused.

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

Validating the act of respondent judge and instituting the practice of hearing the
accused and his witnesses at this early stage would be discordant with the
rationale for the entire system.
151

If the accused were allowed to be heard and necessarily to present evidence

during the prima facie determination for the issuance of a warrant of arrest,
what would stop him from presenting his entire plethora of defenses at this
stage if he so desires in his effort to negate a prima facie finding?

Provided, however, That in the absence or unavailability of an inquest prosecutor, the

complaint may be filed by the offended party or a peace officer directly with the proper
court on the basis of the affidavit of the offended party or arresting officer or person.
The former rule allows a direct filing in court in cases of lawful arrest without a warrant
except in Metropolitan Manila and chartered cities, without an inquest.

Such a procedure could convert the determination of a prima facie case into a
full-blown trial of the entire proceedings and possibly make trial of the main case
superfluous.

However, before the filing of such complaint or information, the person arrested may ask
for a preliminary investigation by a proper officer in accordance with this Rule, but he must
sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended.

This scenario is also anathema to the summary nature of extraditions.

Under the former rule, the waiver may be made with the assistance of a lawyer and in
case of non-availability of a lawyer, a responsible person of his choice.

The Accused is not, however, Prohibited from Filing a Motion to Dismiss on the Ground of
Lack of Probable Cause

It has been held that the absence of probable cause for the immediate issuance
of a warrant of arrest is not a ground for the quashal of the information but is a
ground for the dismissal of the case under Section 6 (now Sec. 5), Rule 112
which is without prejudice.
The trial court is mandated to immediately dismiss the case upon finding that no
probable cause exists to issue a warrant of arrest and after having evaluated the
resolution of the fiscal and supporting information.
If the Court may motu propio dismiss the case for lack of probable cause then it
could do so when a motion to dismiss on such ground is filed as was done
va.Allado u. Diokno.
In cases governed by the Rule on Summary Procedure, the court may likewise
dismiss the case outright, for patently being without basis or merit and order the
release of the accused if in custody.
SEC. 6.
When accused lawfully arrested without warrant
COMMENT:

THE FORMER RULE EMBRACED ONLY LAWFUL ARRESTS FOR CRIMES

COGNIZABLE BY THE REGIONAL TRIAL COURT.
In view, however, of the expanded cases, which require preliminary investigation even of
cases that are not cognizable by the Regional Trial Court as now defined in section 1
hereof, the present section was accordingly amended.
Under the amendment, a complaint or information may only be filed after an inquest
conducted in accordance with existing rules;

Under the amended rule, the waiver may be made only IN THE PRESENCE OF HIS
COUNSEL pursuant to Section 2 ofRA. No. 7438.2
The former rule provides that if a lawyer is unavailable, a responsible person of his own
choice would be sufficient.
This was, however deleted in view of the provisions of section 2 of R.A. No. 7438 limiting
the assistance to that of a lawyer, which in this case appears to be restrictive.
If the case has been filed in court without a preliminary investigation the accused may,
within five (5) days from the time he learns of its filing, ask for a preliminary investigation
with the same right to adduce evidence in his DEFENSE AS provided in this Rule.
The request for preliminary investigation should be made before plea, otherwise the right
to ask for a preliminary investigation shall be deemed waived.

NOTES
The rule was originally taken from section 15 of Rule 112, "where the accused is
detained without a warrant for his arrest" which in turn was taken from Republic
Act No. 409, as amended by Republic Act No. 1201, which reads:
"In all cases brought to the Office of the City Fiscal involving crimes cognizable by the
Court of First Instance, where the accused is not already in the legal custody of the police,
no complaint or information shall be filed without first giving the accused a chance to be
heard in a preliminary investigation, where such accused can be subpoenaed and appears
before the investigating fiscal, with the right to cross-examine the complainant and his
witnesses: Provided, That when the accused is detained, he may ask for a preliminary
investigation, but he must sign a waiver of the provisions of Article One Hundred Twentyfive of the Revised Penal Code, as amended: And provided, further, That if the case has
already been filed in court, he may ask for a reinvestigation thereof later on with the same
right to cross-examine the witnesses against him: Provided, finally, That notwithstanding
such waiver, the said investigation must be terminated within seven days from its
inception."

The rule as now modified refers to all persons lawfully arrested without a
warrant for an offense which requires a preliminary investigation.
152

It was thus held in Go v. Court of Appeals, Larranaga v. Court of Appeals:

There are two (2) situations contemplated under this rule:
First, is when the person is lawfully arrested without a warrant for an offense
which requires a preliminary investigation, and no complaint or information has
yet been filed, in which case, he may ask for a preliminary investigation by
signing a waiver of the provisions of Article 125 of the Revised Penal Code. To
prevent pro longed detention pending preliminary investigation, the accused
may apply for bail even if no information have been filed.
In any event the preliminary investigation must be terminated within fifteen (15)
days from its inception.
Second, when a person is lawfully arrested without a warrant for an offense
which requires a preliminary investigation and the complaint or information was
filed by the offended party, peace officer or fiscal without a preliminary
investigation in which case the accused may within five (5) days from the time
he learns of the filing of the information, ask for a preliminary investigation with
the same right to adduce evidence in his favor in the manner prescribed in the
Rule.
The Inquest
Inquest is an informal and summary investigation conducted by a public
prosecutor in criminal case 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 said persons should remain under custody and correspondingly
be charged in court.
To safeguard the rights of the accused who was arrested without a warrant,
Department Circular No. 61, dated September 21, 1993, requires the arresting
officer to bring the arrestee before the inquest fiscal who shall determine
whether or not said person should remain in custody and correspondingly be
charged in court or that he be released either for lack of evidence or further
investigation.

"WHEN THE POLICE FILED A COMPLAINT FOR FRUSTRATED HOMICIDE

WITH THE PROSECUTOR, THE LATTER SHOULD HAVE IMMEDIATELY
SCHEDULED A PRELIMINARY INVESTIGATION TO DETERMINE WHETHER
THERE WAS PROBABLE CAUSE FOR CHARGING PETITIONER IN COURT
FOR THE KILLING OFELDON MAGUAN.
Instead, the Prosecutor proceeded under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article 125 of the
Revised Penal Code as a condition for carrying out a preliminary investigation.
This was substantive error, for petitioner was entitled to a preliminary investigation and
that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also
entitled to be released forthwith subject only to his appearing at the preliminary
investigation."

However, since an information had already been filed and the absence of a
preliminary investigation does not impair the validity of the information or affect
the jurisdiction of the court, the Supreme Court instead of ordering the dismissal
of the case directed the fiscal to conduct a preliminary investigation and allowed
the accused in the meantime to post bail."
Period to File Motion For Preliminary InvestigatioN

The period for filing a motion for preliminary investigation after an information
has been filed against an accused who was arrested without a warrant has been
characterized as mandatory by the court.
In People v. Figueroa, the Supreme Court applied a substantially similar rule held
that as the accused in that case did no exercise his right within the five-day
period, his motion for reinvestigation was denied.
The case should be distinguished from Rolito Go v. Court o, Appeals (supra).

The custodial investigation report shall be reduced to writing by the

investigating officer, provided that before such report is signed, or thumbmarked
if the person arrested or detained does not know how to read and write, it shall
be read and adequately explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the language or dialect known to
such arrested or detained person, otherwise, such investigation report shall be
null and void and of no effect whatsoever.

In said case, Go not only asked for preliminary investigation on the very day the
information was filed, but he is also clearly entitled to a preliminary
investigation.

The rule is not applicable if the person is not lawfully arrested without a warrant

Accordingly, he effectively waived his right to a preliminary investigation

Section 7, Rule 112 is clearly not applicable because Go was not lawfully
arrested, the right to demand preliminary investigation was subject to the
condition that he should claim it seasonably. He did not do so.

The Right To Bail Pending Preliminary Investigation

153

It may be noted that under Section 7 (now Sec. 6) of Rule 112, i person lawfully
arrested may post bail before the filing of the information or even after its filing
without waiving his right to preliminary investigation, provided that he asks for a
preliminary investigation by the proper officer within the period fixed in the said
rule."
Waiver of Illegal Arrest
The accused may be estopped to question the illegality of the arrest by entering
a plea of not guilty without moving to quash th information on such ground.
Thus, any irregularity attendant to an arrest was cured when accused voluntarily
submitted himself to the jurisdiction of the Court by entering a plea of not guilty
"and [by] participating in the trial."
Where the Warrant of Arrest is void for want of probable cause, the appropriate
remedy is certiorari and prohibition with prayer for the issuance of a TRO rather
than actively participate in the proceeding.

respondent and be accompanied by affidavits of the complainant and his

witnesses as well as other supporting documents RELIED UPON BY HIM TO
ESTABLISH PROBABLE CAUSE, in such manner of copies as there are respondent,
plus two (2) copies for the official file.
The said affidavits shall be sworn to before any PROSECUTOR, state prosecutor
or government official authorized to administer oath, or, in their absence or
unavailability, a notary public, who must certify that he personally examined the
affiants and that he is satisfied that they voluntarily executed and understood
their affidavits.
The prosecutor shall take appropriate action based on the affidavits and other
supporting documents submitted by the complainant WITHIN TEN (10) DAYS
FROM ITS FILING.
In other words, he may either dismiss the case or file it in court without any
further investigation since this refers to cases that are not entitled to preliminary
investigation.
The Prosecutor has no authority to issue a warrant of arrest.

SEC. 7.
Records
SEC. 8.
Cases not requiring a preliminary investigation nor covered by the Rule
on Summary Procedure

It is only the court that may do so.

A case cognizable by the Municipal Trial Court may, however, be filed in court
directly by the complainant or by the prosecutor, without preliminary
investigation.
Options of the Judge

Warrant of Arrest in Cases which Do Not Require Preliminary Investigation

In cases which falls under the original jurisdiction of the municipal trial court,
which does not require a preliminary investigation nor does it fall under the
Rules on Summary Procedure, the case may either be filed in court by a
prosecutor or directly filed in court by the offended party.

The Judge has three (3) options in the issuance of a warrant of arrest:
A.

The amended rule in the issuance of warrants of arrest by the Municipal Trial
Courts for actions filed in the exercise of its original Jurisdiction provides for two
distinct situations.

The procedure in section 3(a) of this rule shall be observed.

If the judge finds no sufficient ground to hold the respondent for trial, he
shall dismiss the complaint or information.

The case may be filed directly in the municipal trial court or by the prosecutor in
Metro Manila or other chartered cities.

Otherwise, he shall issue a warrant of arrest or a commitment order if the

accused had already been arrested, after personally examining in writing
and under oath the complainant and his witnesses in the form of searching
questions and answers, or

If the complaint is filed with the PROSECUTOR for offenses which do not require
a preliminary investigation the procedure outlined in Section 3(a) of this Rule
shall be observed.
Under Section 3(a), the complaint shall state the known address of the

Where filed directly with the municipal trial court. if the complaint or
information is filed directly with the municipal trial court.

B.

154

He may personally evaluate the affidavits and supporting evidence attached

to the complaint or information if on the basis thereof he finds no probable

cause, he may require the submission of additional evidence to aid him in

determining the existence of probable cause.
C. However, instead of issuing a warrant of arrest, the court may issue
summons if it is satisfied that there is no necessity for placing the accused
under immediate custody.
No warrant of arrest shall issue for offenses which fall under the original
jurisdiction of the court if such warrant had already been issued during the
preliminary investigation by the same court pursuant to section 6(b) [now
sec. 5] of this rule the court shall instead proceed to hear the case in the
exercise of its original jurisdiction.

Meaning of Personal Examination

Where the respondent judge personally examined the witnesses for the
prosecution adopting as his own personal examination the questions asked by
the investigating officer as appearing in the written statements, which he read
over again to the witnesses together with the answers given therein, asking the
witnesses whether said answers were theirs, and whether the same answers
were true, to which the witnesses answered in the affirmative, the court considered this as sufficient. Republic Act No. 3838 does not prohibit the municipal
judge from adopting the questions asked by a previous investigator.
Meaning of Examination under Oath

No warrant of arrest may be also be issued for cases covered by the Revised
Rule on Summary Procedure.
The No Necessity Rule

The finding of the trial court that the complaint was "supported by statements of
the witnesses under oath" and the record also shows the sworn statements of
the witnesses to have been subscribed and sworn to before respondent Judge,
satisfies the second requirement.

The "necessity" rule restores the 1985 amendment which was deleted in 1988.
Meaning of Searching Questions and Answers
The statement that the judge determines whether there is need for placing the
accused under custody in order not to frustrate the ends of justice only applies
to warrants of arrest issued by the Municipal Judge during a preliminary
investigation.
Discretion to Dispense with Searching Questions
The foregoing provisions have provided an alternative mode of determining
probable cause in cases filed for trial by allowing the municipal judge to
personally evaluate the affidavits and supporting evidence of the complainant or
if on the basis thereof he finds no probable cause he may require the submission
of additional evidence to aid him in arriving at a conclusion as to the existence
of probable cause.
This is in line with the pragmatic interpretation by the Supreme Court that under
the Constitution the judge does not have to conduct a personal examination of
the witnesses but that for purposes of determining probable cause for the
issuance of a warrant of arrest, the Judge must personally evaluate the
prosecutor's report, the evidence adduced during the preliminary investigation.
These jurisprudence are now capsulized in the present rule, where the judge
needs only to evaluate the report of the Prosecutor and the supporting
documents.
Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their courts.

The term "searching questions and answers" means only, taking into
consideration the purpose of the preliminary examination which is to determine
"whether there is a reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof so that a warrant of arrest
may be issued and the accused held for trial," such questions as have tendency
to show the commission of a crime and the perpetrator thereof.
What would be searching questions would depend on what is sought to be
inquired into, such as: the nature of the offense, the date, time and place of its
commission, the possible motives for its commission; the subject, his age,
education, status, financial and social circumstances, his attitude toward the
investigation, social attitudes, opportunities to commit the offense; the victim,
his age, status, family responsibilities, financial and social circumstances,
characteristics, etc. the points that are the subject of inquiry may differ from
case to case.
The questions, therefore, must to a great degree depend upon the judge making
the investigation.
At any rate, the court a quo found that respondent Judge was "satisfied that the
questions and answers contained in the sworn statements taken by T-Sgt. Patosa
partake of the nature of his searching questions and answers as required by
law," so the respondent Judge adopted them."

155

Preliminary Examination May be Ex-parte

officer.

Preliminary examination is not an essential part of due process of law.

Preliminary examination may be conducted by the municipal judge, prior to the
issuance of the warrant of arrest, either in the presence, or in the absence, of
the accused.

If an officer having authority to make an arrest lays his hand upon the person of
the prisoner, however lightly, with the intention of taking him into custody, there
is an arrest, even though he has not succeeded in stopping or holding him even
for an instant.

There is no need of warrant or bail in cases covered by the Rule on Summary

Procedure.

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.

RULE 113
ARREST
SECTION 1.
Definition of arrest
SEC. 2.
Arrest; how made
What Constitutes Arrest
The act relied upon as constituting an arrest must have been performed with the
intent to effect an arrest and must have been so understood by the party
arrested.
Also, the person making the arrest must be acting under some real or pretended
legal authority for taking the person into custody.
It is not necessary, however, that there be an application of actual force, or
manual touching of the body, or physical restraint which may be visible to the
eye, or a formal declaration of arrest.
It is sufficient if the person arrested understands that he is in the power of the
one arresting and submits in consequence.
However, in all cases in which there is no manual touching or seizure or any
resistance, the intentions of the parties to the transaction are very important;
there must have been an intent an the part of one of them to arrest the other,
and an intent on the part of the other to submit, under the belief and impression
that submission was necessary.
There can be no arrest when the person sought to be arrested is not conscious
of any restraint of his liberty.
But the mere submission of a person whether pretended or actual, will not
constitute an arrest, if he is not at the time actually within the power of the

No Unnecessary or Unreasonable Force shall be Used in Making Arrest

Although an officer in making a lawful arrest is justified in using such force as is

reasonably necessary to secure and detain the offender, overcome his
resistance, prevent his escape, recapture him if he escapes, and protect himself
from bodily harm, yet he is never justified in using unnecessary force or in
treating him with wanton violence, or in resorting to dangerous means when the
arrest could be effected otherwise.
The doctrine is restated in the Rules of Court thus: "No violence or unnecessary
or unreasonable force shall be used in making an arrest, and the person arrested
shall not be subject to any greater restraint than is necessary for his detention."
And a peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making an arrest.
Arrest of Notorious Criminal
The court noted in one case: "It is suggested that a notorious criminal 'must be
taken by storm' without regard to his right to life which he has by such notoriety
already forfeited.
This Court may approve of this standard of official conduct where the criminal
offers resistance or does something which places his captors in danger of
imminent attack.
Otherwise, this court cannot see how, as in the present case, the mere fact of
notoriety can make the life of a criminal a mere trifle in the hands of the officers
of the law.
Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it
never can justify precipitate action at the cost of human life.
Where, as here, the precipitate action of the appellants has cost an innocent life
and there exist no circumstances whatsoever to warrant action of such character
in the mind of a reasonably prudent man, condemnation not condonation
156

should be the rule; otherwise, this Court would offer a premium to crime in the
shelter of official actuation.
Thus, it may be true that Anseimo Balagtas was a notorious criminal, a lifetermer, a fugitive from justice and a menace to the peace of the community but
these facts alone constitute no justification for killing him when, in effecting his
arrest, he offers no resistance, or in fact no resistance can be offered, as when
he is asleep.
This, in effect, is the principle laid down, although upon different facts."
Force Necessary to Overcome Actual Resistance to Arrest
In People v. Delima, a prisoner escaped from jail. He was found armed with a pointed piece
of bamboo in the shape of a lance. Accused policeman asked him to surrender but prisoner
answered with a stroke of his lance. The policeman fired his revolver but did not hit the
criminal who ran away. He pursued, firing and killing the prisoner.

opponent. The force requires him to overcome his opponent.

The force which he may exert therefore differ somewhat from that which may ordinarily be
offered in self-defense.
Bearing this in mind, we do not think that the appellant in using his revolver against the
deceased can be said to have employed unnecessary force.
The deceased attacked him with a deadly weapon; he might perhaps, have saved himself
by running away, but this his duty forbade.
Was he to allow himself to be stabbed before using his arms?
It may, perhaps, be argued that the appellant might have used his club, but a policeman's
club is not a very effective weapon as against a drawn knife and a police officer is not
required to afford a person attacking him the opportunity for a fair and equal struggle.

SEC. 3.
Duty of Arresting Officer

Held: The killing was done in the performance of a duty.

The deceased was under the obligation to surrender, and had no right, after evading
service of his sentence, to commit assault and disobedience with a weapon in the hand,
which compelled the policeman to resort to extreme means, which, although it proved to
be fatal, was justified by circumstances.

In another case, the deceased was creating a disturbance when the defendant, a
policeman, attempted to arrest him and take him to the presidensia.
The deceased resisted the arrest by striking the accused with a calicut
whereupon the latter shot him with his revolver causing the former's death.
The Court held: "Although a police officer may employ force to overcome active
resistance to an arrest, it is not reasonably necessary to kill his assailant" to
repel an attack with a calicut, and only an incomplete defense is made out.
A police officer is not justified in using unnecessary force in effecting arrest or in
treating with wanton violence the arrested person or in resorting to dangerous
means when the arrest could be affected otherwise.

COMMENT:

As a matter of law, when a person indicted for an offense is arrested, he is

deemed placed under custody of the law.
He is placed in actual restraint to liberty in jail so that he may be bound to an swer for the commission of the offense.
He must be detained in jail during the pendency of the case against him, unless
he is authorized by the court to be released on bail or on recognizance.
The prisoner whether under preventive detention or serving fail sentence can
not practice their profession nor engage in any business or occupation or hold
office, elective or appointee, while in detention.
This is a necessary consequence of arrest and detention.

Police Officer Must Stand His Ground

SEC. 4.
Execution of Warrant

In U.S. v. Mojica One of the Constabulary soldiers, the deceased, was placed under
arrest. He resisted and finally succeeded in freeing himself. He then struck a policeman
with the fist, drew a mess kit knife and brandishing it attacked the accused, another po liceman. The accused retreated a step or two, drew his revolver and fired killing the
soldier.

The rule does not require a return of the warrant of arrest but only a report to
the judge who issued the warrant and, in case of the officer's failure to execute
the same, shall state the reasons therefor.

Held: A police officer, in the performance of his duty, must stand his ground and cannot,
like a private individual, take refuge in flight, his duty requires him to overcome his

A warrant of arrest does not become stale or functus oficio unlike a search
warrant which is valid only for ten days.
157

As revised, the present rule reads:

A warrant of arrest remains valid until arrest is effected or the warrant lifted.
SEC. 5.
Arrest without warrant; when Lawful

Amendments to the Rule, Explained

a.
b.

Former Rule (1964)

Sec. 6, Rule 113

"(B) WHEN AN OFFENSE HAS JUST BEEN COMMITTED AND HE HAS

PROBABLE CAUSE TO BELIEVE BASED ON PERSONAL KNOWLEDGE OF
FACTS OR CIRCUMSTANCES THAT THE PERSON TO BE ARRESTED HAS
COMMITTED IT."
The present rule removed the requirement that an offense must have in fact
been committed and clarified that probable cause to believe based on personal
knowledge of facts refer to "facts and circumstances" that the person to be
arrested has committed it.
Such knowledge would be sufficient to justify a warrantless arrest for an offense
that has just been committed.

When an offense has in fact been committed, and he has reasonable ground
to believe that the person to be arrested has committed it; and

1985 AMENDMENT
b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed
it; and
Reason For 1985 Amendment
In 1985, the rule, which was transposed to section 5 of Rule 113, introduced a
significant change.
Subsection (b) of section 5, Rule 113 inserted the word "just" before been
committed, and the phrase "he has reasonable ground to believe" was changed
to "he has personal knowledge of facts" to minimize arrests based on mere
suspicion or hearsay.
Controversy arose in the interpretation of what are those fact which must be
within the personal knowledge of the person effecting the arrest?
Otherwise stated, what are the facts indicating that the person to be arrested
has committed the crime.
The restrictive interpretation is that the facts constituting the crime must be personally known by the person effecting the arrest, hence, there are cases which
excluded even an eyewitness identification allegedly because of lack of personal
knowledge by the arresting officer.
The Revised Rules on Criminal Procedure

The amendment is in accord with Supreme Court decisions that the indubitable
existence of a crime is not necessary to justify a warrantless arrest and that
'personal knowledge of facts,' in arrests without warrant must be based upon
probable cause, which means an actual belief or reasonable grounds of
suspicion.
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.
The only difference is that in flagrante arrests, under subpar. (a), the facts
constituting probable cause occur in the presence of the arresting person, while
in hot pursuit, knowledge of the facts occurred after the commission of the
crime.
Although probable cause eludes exact and concrete definition, it generally
signifies a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man to believe that the
person is guilty of the offense with which he is charged.
It, likewise, refers to the existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the item(s), article(s) or object(s) sought in connection with
said offense or subject to seizure and destruction by law is in the place to be
searched.
Personal Knowledge of Facts Constituting Probable Cause

158

In its resolution denying the Motion for Reconsideration in the Umil v. Ramos
cases, the majority opinion explained the meaning of Personal Knowledge of
Facts (under section 5[b]), as follows:

after due investigation, that there is a probability that a crime has been
committed and the accused is guilty thereof, a fortiori a police officer has no
authority to arrest and detain a person charged with an offense upon
complaint of the offended party or other persons even though after
investigation, he becomes convinced that the accused is guilty of the
offense charged.

"It has been ruled that 'personal knowledge of facts,' in arrests without warrant must be
based upon probable cause, which means an actual belief or reasonable grounds of
suspicion.

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."
The foregoing standards were again adopted in warrantless "hot pursuit" arrest
in the 1999 case of People v. Doria.
As observed by an eminent author there does not exist (and never will exist) a
"bright line" marking the exact boundaries of probable cause, so that a warrant
should be upheld when the initial judgment of the magistrate could considerably
have gone either way.
General Principles; Warrantless Arrest Not Allowed

a.

As a general rule, no peace officer or person has the power or authority to

arrest anyone without a warrant except in those cases expressly authorized
by law.
The law expressly allowing arrests without a warrant is found in Section 5,
Rule 113 of the Rules of Court.
A warrantless arrest under circumstances contemplated under Sec. 5(a) has
been denominated as one "in flagrante delicto" while that under Section 5(b)
has been described as a "hot pursuit arrest."

b.

A peace officer has no power or authority to arrest a person without a

warrant upon complaint of the offended party or any other person, except in
those cases expressly authorized by law.
What he or the complainant may do in such case is to file a complaint with
the city fiscal in cities, or directly with the justice of the peace courts (now
municipal courts) in municipalities and other political subdivisions.
If the city fiscal has no authority, and he has not, to order the arrest of a
person charged with having committed a public offense even if he finds,

c.

Section 2463 of Revised Administrative Code recognized as basis for

warrantless arrest was repealed by R.A. No. 409 otherwise known as the
Charter of Manila.
Exception

The rules recognize and allow arrests without warrant and a search and seizure
without warrant incident to a lawful arrest whether the arrest is with or without a
warrant.
As stated in People v. Kaqui Malasugui, the Constitutional precepts do not
prohibit arrests, searches and seizures without judicial warrant, but only those
that are unreasonable.
To hold that no criminal can in any case be arrested and searched for the
evidence and tokens of his crime without a warrant, would be to leave society,
to a large extent, at the mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many instances.
It is the duty of a policeman to arrest those who disturb an assemblage by words
and blows constituting a breach of the peace and the defendant who requested
the arrest and the officer who made it did not incur criminal responsibility.
Municipal councilors and lieutenants or "barrios" are charged with duty of
maintaining order, and preserving and protecting life and property in the
"barrios" specially placed under their direction in conformity with Sec. 37 of Act
No. 82, and are therefore clothed with authority to make arrests without
warrants, not inferior to those powers usually conferred upon peace officers,
more especially those of peace officers known as "constables" in American and
English law.
Thus, the Lieutenant of a "barrio" was held to be within lawful performance of
his duties when he attempted to arrest a person caught in flagrante delicto
conducting a clandestine cockpit.
Any officer charged with the preservation of the public peace may arrest without
a warrant any person who is committing, or has committed, a breach of peace in
his presence.

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Source of Rule on Warrantless Arrest

a.

person making the arrests has reasonable grounds to strongly believe that
the person so arrested is guilty of such crime and where there is likelihood of
the person escaping before a legal warrant can be obtained for his arrest,
but the person arrested shall be immediately taken before the competent
Court of Justice.

A warrantless arrest in this jurisdiction as an exception to the constitutional

prohibition against unreasonable search and seizure was originally governed
by Rules 27, 28, 29 and 30 of the Provisional Law for the Application of the
Penal Code, which authorized among others the arrest of persons when
there is reasonable ground to believe him guilty of some offense, provided:

Under this law members of the investigation staff of the Bureau of

Investigation shall be peace officers and as such have the power to make
arrests, searches and seizure in accordance with existing laws and rules.

First. That the authority or agent had reasonable cause to believe that an
unlawful act, amounting to crime had been committed.

Earlier Rulings (Before 1940): Arrest Based on Suspicion, Were Held Valid

Second. That the authority or agent had sufficient reason to believe that the
person arrested participated in the commission of such unlawful act or
crime.
The Supreme Court in the 1909 case U.S. v. Fortaleza (supra), likewise
pointed to section 37 of Act No. 183 (Charter of Manila) which designated
customs officials, including police officers or peace officers who may pursue
and arrest without warrant, any person found in suspicious places or under
suspicious circumstances reasonably tending to show that such person has
committed, or is about to commit any crime or breach of the peace; or may
arrest, or cause to be arrested without warrant, any offender, when the
offense is committed in the presence of a peace officer or within his view.
b.

The extent of a peace officers' arrest powers in the Philippines without

warrant and the limitations therein was upheld by the Supreme Court in the
1917 case of U.S. v. Santos and as stated in the Legislature in the Charter of
the City of Manila and (2) the Administrative Code and (3) Sec. 2258, edition
of 1917 which enjoins Municipal policemen to "exercise vigilance in the
prevention of public offenses.

The bases of the rulings are Rules 27 and 28, Provisional Rules for Application of
Penal Code, Revised Administrative Code and Section 37 Charter of Manila which
allows warrantless arrest based on reasonable ground of belief.
The following cases are illustrative:
a.

U.S. u. Burgueta warrantless arrest of accused while quarreling in public

with Municipal Councilor.

b.

U.S. v. Fortaleza upholding warrantless arrest of operator by barrio

lieutenant of a clandestine, cockpit operation.

c.

U.S. u. Samonte - Meaning of committed in one's presence Seeing or

Hearing at a Distance. An offense is committed in the presence or within the
view of an officer, within the meaning of the rule authorizing an arrest
without a warrant, when the officer sees the offense, although at a distance,
or hears the disturbances created thereby and proceeds at once to the
scene thereof.
In this case, as the priest engaged in a quarrel was down and was being
maltreated, he shouted "police! police!" and the police heard this and
attempted to arrest appellant, he resisted arrest and struck the police.
Appellant was held guilty of assault upon an agent of a person in authority.

The decision, likewise cited the common law rule on the arrest of suspicious
night walkers.
c.

d.

In the 1939 case of People v. Ancheta the Supreme Court pointed to

section 848 of the Administrative Code and Article 124 of the Revised Penal
Code as allowing members of the Constabulary or policemen to make arrests
without warrant, not only when a crime is being committed or is about to be
committed in their presence, but also when they reasonably believe or have
grounds to suspect that a crime has been committed and that it has been
committed precisely by the person arrested.
Under Commonwealth Act No. 181 (Sec. 3), an arrest without warrant may
be made by agents of the Department of Justice (i.e., the Chief of the
Division of Investigation and his subordinates) for a crime which has been
committed in their presence, or within their view, or in cases where the

d.

U.S. u. Batallones A peace officer can justify an arrest without warrant if

there is reasonable ground of suspicion tending to show that a person
committed or is about to commit any crime 01 breach of the peace, and if he
acts in good faith. Under such conditions, even if the suspected person is
later found to be innocent, the peace officer is not liable for coercion or
arbitrary detention.

e.

U.S. v. Sanchez The legality of the detention does not depend upon the
fact of the crime, but upon the nature of the deed, where such
characterization may reasonably be inferred by the officer or functionary to

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whom the law at that moment leaves the decision for the urgent purpose of
suspending the liberty of the citizen.

It is sufficient that there was ample ground to believe honestly and reasonably that the cause of the surrounding phenomena at the time was a crime
that has just been or was about to be committed and that the person
detained was responsible for it.

One of the duties of the police is to arrest lawbreakers in order to place them
at the disposal of the judicial or executive authorities upon whom devolves
the duty to investigate the act constituting the violation or to prosecute and
secure the punishment thereof.
One of the means conducing to these ends being the identification of the
person of the alleged criminal or lawbreaker, the duty that directly devolves
upon the police to make the arrests or detentions for the purposes of such
investigation cannot be questioned, (supra)
Hearing the screeching of tires followed by a thud and seeing the sideswiped
victim is a crime committed in one's presence to justify a warrantless arrest.
f.

In a case of arbitrary detention, the Supreme Court held that there is No

need of fact of commission of offense to justify the detention. Probable
cause for an arrest without warrant is allowed where there is reasonable
ground of suspicion supported by circumstances sufficiently strong in
themselves as to warrant a reasonable man in believing the accused to be
guilty. No crime was committed here.

People v. Ancheta, reiterated the ruling laid down in U.S. v. Santosand

adopted that of a decision of the Supreme Court of Spain of November 5,
1892.
Indubitable Existence of Crime Not Required
Thus, under the pre-1940 rulings, a lawful warrantless arrest does not require
the indubitable existence of a crime.
It is sufficient if the officer effecting the arrest has reasonably sufficient grounds
to believe the existence of an act having the characteristic of a crime and that
the person sought to be detained has participated therein, a warrantless arrest
was made on the basis of information given by one of the accused naming his
companions who, on the basis thereof, was arrested without a warrant.
The arrest was considered as lawful.
Restrictions on Warrantless Arrest

The persons merely entered an uninhabited camarin but their arrest was
justified to prevent the commission of a crime.
Common Law rule applied. Justice Malcolm stated that:
"One should, however, not expect too much of an ordinary policeman. He is not
presumed to exercise the subtle reasoning of a judicial officer.
Often he has no opportunity to make proper investigation but must act in haste on his
own belief to prevent the escape of the criminal. To err is human. Even the most con scientious officer must at times be misled.
If, therefore, under trying circumstances and in a zealous effort to obey the orders of
his superior officer and to enforce the law, a peace officer makes a mere mistake in
good faith, he should be exculpated.
Otherwise, the courts will put a premium on crime and will terrorize peace officers
through a fear of themselves violating the law."

In Sayo, et al. v. Chief of Police, the court, however, held that:

"THE LAW RESTRICTS THE CASES WHEN A PEACE OFFICER MAY ARREST
WITHOUT A WARRANT; THE SO-CALLED COMMON LAW RULE RELATING
TO OTHER CASES OF ARREST WITHOUT WARRANT HAS NO APPLICATION
IN THIS JURISDICTION, AND EXCEPT AS AUTHORIZED BY SUCH STATUTE,
AN ARREST WITHOUT WARRANT IS ILLEGAL.
STATUTORY CONSTRUCTIONS EXTENDING THE RIGHT TO MAKE ARRESTS
WITHOUT A WARRANT BEYOND THE CASES PROVIDED BY LAW IS
DEROGATORY OF THE RIGHT OF THE PEOPLE'S LIBERTY"
Present Rule on Warrantless Arrest

g.

In People v. Kagui Malasugu a warrantless arrest for a crime committed

not in arresting officer's presence but made on the same day was justified.

The law expressly allowing arrests without a warrant is found in Section 5, Rule
113 of the Rules of Court.
A warrantless arrest under circumstances contemplated under Sec. 5(a) has
been denominated as one "in flagrante delicto" while that under Sec. 5(b) has
been described as a "hot pursuit arrest."

h.

In other words, such arrest or detention does not necessarily presume that
really a crime had been committed.

The foregoing rule specifies the instances when warrantless arrests may be
made by a peace officer or a private person.
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officer
The old Rule was modified as follows: (a) the phrase "about to commit an
offense" was changed to "is attempting to commit an offense," because the old
phraseology implied that no offense had as yet been committed, (b) the word
"just" was inserted before "been committed," and the phrase "he has reasonable
ground to believe" was changed to "he has personal knowledge of facts" to
minimize arrests based on mere suspicion or hearsay. 44
The 1940 Rules of Court (effective July 1, 1940), provided for warrantless arrest
in section 6 of Rule 109 thereof. These were taken from the Provisional Law for
the application of the Penal Code and sections 21 and 22 of the American Law
Institute45 with one significant change. The warrantless arrest under subsection
(b) requires as a condition thereof that an "offense has in fact" been committed.
In 1985 rule, which was transposed to section 5 of Rule 113, introduced another
significant change. Subsection (b) of section 5, Rule 113 inserted the word "just"
before been committed, and the phrase "he has reasonable ground to believe"
was changed to "he has personal knowledge of facts" to minimize arrests based
on mere suspicion or hearsay. 46
Application of Present Rule

There is an attempt when the offender commences the commission of a felony

directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
Overt or external act has been defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere planning
or preparation, which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense.
A warrantless arrest is not justified by the mere fact that a crime is being
committed in one's presence.
The arresting officer must have personal knowledge of such commission.
The knowledge must precede the arrest.
The arrest cannot be justified by discovery thereafter that the person was
committing a crime.

Despite the 1985 amendments on warrantless arrest, the court appears to have
returned to pre-amendment doctrines in the application of the rule.
In Flagrante Arrests (For crimes committed in presence of arresting person)

Sec. 5(a), Rule 113, Sec. 12, Rule 126 arrest for crimes In Presence of arresting
officer. WHEN IN HIS PRESENCE, THE PERSON TO BE ARRESTED HAS
COMMITTED, IS ACTUALLY COMMITTING, IS OR ATTEMPTING TO COMMIT A
CRIME.
Essential Requisites
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.
To constitute probable cause, two requisites must concur:
(a) the person to be arrested must execute an overt act indicating that he
has just committed, is actually committing, or is attempting to commit a
crime; and
(b) such overt act is done in the presence or within the view of the arresting

Knowledge Must Be At Time of, Not After, Arrest

An offense is committed in the presence or within the view of an officer, within
the meaning of the rule authorizing an arrest without a warrant, when the officer
sees the offense, although at a distance, or hears the disturbance caused
thereby and proceeds at once to the scene thereof, or the offense is continuing;
or has not been consummated at the time when the arrest is made.
Knowledge of the commission of the crime in one's presence must precede the
arrest.
The law requires that there be first a lawful arrest before a search can be made
the process cannot be reversed.
In other words, the acts must be known to the officer at the time of their
commission through his sensory perceptions.
Thus, there could have been no in flagrante delicto arrest preceding the search,
in light of the lack of an overt physical act on the part of accused-appellant that
he had committed a crime, was committing a crime or was going to commit a
crime.
As applied to in flagrante delicto arrests, it has been held that "reliable
information" alone, absent any overt act indicative of a felonious enterprise in
the presence and within the view of the arresting officers, is not sufficient to
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constitute probable cause that would justify an in flagrante delicto arrest.

Hence, in People u. Aminudin, we ruled that "the accused-appellant was not, at
the moment of his arrest, committing a crime nor was it shown that he was
about to do so or that he had just done so.
What he was doing was descending the gangplank of the M/V Wilcon 9 and there
was no outward indication that called for his arrest.

The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to
be seized."

To all appearances, he was like any of the other passengers innocently

disembarking from the vessel.

The plain import of the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant or warrant
of arrest.

It was only when the informer pointed to him as the carrier of the marijuana that
he suddenly became suspect and so subject to apprehension."

Thus, the fundamental protection given by this provision is that between person and police
must stand the protective authority of a magistrate clothed with power to issue or refuse
to issue search warrants or warrants of arrest.

The reliance of the prosecution in People v. Tangliben, to justify the police's

actions is misplaced.

In the Brief Account submitted by petitioner David, certain facts ire established:
first, he was arrested without warrant; second, the PNP operatives arrested him
on the basis ofPP 1017; third, he was brought at Camp Karingal, Quezon City
where he was fingerprinted, Dhotographed and booked like a criminal suspect;
fourth, he was created brusquely by policemen who "held his head and tried to
push him inside an unmarked car; fifth, he was charged with Violation of Satas
Pambansa Bilang Big. 880 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh, he was eventually released for insufficiency of
evidence.

In the said case, based on the information supplied by informers, police officers
conducted a surveillance at the Victory Liner Terminal compound in San
Fernando, Pampanga against persons who may commit misdemeanors and also
on those who may be engaged in the traffic of dangerous drugs. At 9:30 in the
evening, the policemen noticed a person carrying a red travelling bag who was
acting suspiciously.
They confronted him and requested him to open his bag but he refused. He
acceded latel on when the policemen identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The police officers only knew of
the activities of Tangliben on the night ol his arrest.
In the instant case, the apprehending policemen already hac prior knowledge
from the very same informant of accused-appellant's activities.
The police operatives cannot feign ignorance of the alleged ille gal activities of
accused-appellant. Considering that the identity address and activities of the
suspected culprit was already ascertained two years previous to the actual
arrest, there was indeed no reason why the police officers could not have
obtained a judicial warrant before arresting accused-appellant and searching his
person Whatever information their civilian asset relayed to them hours be fore
accused-appellant's arrest was not a product of an "on-the-spot tip which may
excuse them from obtaining a warrant of arrest
Accordingly, the arresting team's contention that their arrest of accusedappellant was a product of an "on-the-spot" tip is untenable
In Randolph David v. Gloria Macapagal-Arroyo, the Court stressed:

Neither of the two (2) exceptions mentioned above justifies petitioner David's
warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of B.P. Big.
880, all that the arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their
erroneous assumption that petitioner David was the leader of the rally.
Consequently, the Inquest Prosecutor ordered his immediate release on the
ground of insufficiency of evidence.
He noted that petitioner David was not wearing the subject t-shirt and even if he
was wearing it, such fact is insufficient to charge him with inciting to sedition.
Further, he also stated that there is insufficient evidence for the charge of
violation of B.P. Big. 880 as it was not even known whether petitioner David was
the leader of the rally.
ILLUSTRATIVE CASES:
Meaning of Personal Knowledge Based on Sensory Perceptions

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committing, or is about to commit an offense must have personal knowledge of that fact.
People v. Claudio
Pat. Obina a member of the NARCOTICS UNIT, was on board the Victory Liner, seated on
the second seat at the back. While he was thus seated, suspect Anita Claudio boarded the
same bus and took the seat in front of him after putting a bag which she was carrying at
the back of the seat of Obina. The bag placed by suspect behind his seat was a woven buri
bag made of plastic containing her bag behind Pat. Obina's seat aroused his suspicion and
made him felt (sick) nervous. With the feeling that there was something unusual, he had
the urge to search the woven plastic bag. But it was only at San Fernando, Pampanga
when he was able to go to the bag. He inserted one of his fingers in a plastic bag located
at the bottom of the woven bag and smelt marijuana. The plastic woven bag appearing to
contain camote tops on the top has a big bundle of plastic marijuana at the bottom. He
could recognize the smell of marijuana because he was assigned at that time at the ANTINARCOTICS UNIT. He did not, however, do anything after he discovered that there was
marijuana inside the plastic bag of the accused until they reached Olongapo City and the
accused alighted from the bus in front of the Caltex Gasoline Station in Sta. Rita. Right
after the accused alighted from the bus, policeman Obina intercepted her and showed her
his ID identifying himself as a policeman and told her he will search her bag because of the
suspicion that she was carrying marijuana inside said bag. In reply, accused told him,
"Please go with me, let us settle this at home."
HELD: Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obina did
not need a warrant to arrest Claudio as the latter was caught inflagrante delicto. The
warrantless search being an incident to a lawful arrest is in itself lawful.

PEOPLE V. BURGOS
Strict Interpretation
Personal Knowledge Interpreted. The need to strictly adhere to the rule was stressed by
Justice Hugo Gutierrez, Jr., in no uncertain terms in People v. Burgos In this case Cesar
Masamlok surrendered to the PC on May 12, 1982 stating that, he was forcibly recruited by
Ruben Burgos a member of the NPA, threatening him with the use of firearm against his
life, if he refused.
A joint team of members of the PC-INP was dispatched the following day to arrest Ruben
Burgos and they were able to locate and arrest him while he was plowing his field.
Interrogation was made in the house of the accused. He first denied possession of the
firearm but later, upon further questioning, the team with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground.
After the recovery of the firearm, the accused likewise pointed to the subversive
documents which the PC found kept in a stock pile ofcogon, at a distance of three meters
apart from his house.

The offense must also be committed in his presence or within his view."
There is no such personal knowledge in this case.
Whatever knowledge was possessed by the arresting officers, it came in its entirety from
the information furnished by Cesar Masamlok.
The location of the firearm was given by the appellant's wife.
At the time he was arrested, he was not committing a crime but was plowing his field.
If an arrest without warrant is unlawful at the moment it is made, generally, nothing that is
discovered afterwards cannot make it lawful
ARREST UNLAWFUL WHERE WAS NO URGENCY AND THERE IS OPPORTUNITY TO OBTAIN
WARRANT
In People v. Aminnudin, the PC officers had earlier received a tip from one of their
informers that the accused was on board a vessel bound for Iloilo City and was carrying
marijuana. He was identified by name. Acting on this tip, they waited for him in the
evening of June 25, 1984, and approached him as he descended from the gangplank after
the informer had pointed to him. They detained him and inspected the bag he was
carrying. It was found to contain three kilos of what were later analyzed as marijuana
leaves by an NBI forensic examiner, who testified that she conducted microscopic,
chemical and chromatographic tests on them. On the basis of this finding, the
corresponding charge was then filed against Aminnudin.
HELD: Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been committed to
justify the warrantless arrest allowed under Rule 113 of the Rules of Court.
The present case presented no urgency. From the conflicting declarations of the PC
witnesses, it is clear that they had at least two days within which they could have obtained
a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9.
His name was known.
The vehicle was identified. The date of its arrival was certain.
And from the information they had received, they could have persuaded a judge that there
was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing.
No effort was made to comply with the law.

Accused when confronted with the firearm readily admitted the same as issued to him by
the team leader of a sparrow unit. The lower court justified the arrest, search and seizure
without warrant under Section 6-A, Rule 113 of the Rules of Court.

The Bill of Rights was ignored altogether because the PC Lieutenant who was the head of
the arresting team, had determined on his own authority that a "search warrant was not
necessary."

The Supreme Court held the arrest as unlawful.

The accused-appellant was not, at the moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just done so.

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is

164

It was only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension.

POSSESSION OF FIREARMS AND AMMUNITION IN THE PRESENCE OF

POLICE OFFICERS AND CONSEQUENTLY THE SEARCH AND SEIZURE OF
THE CONTRABAND WAS INCIDENTAL TO THE LAWFUL ARREST IN
ACCORDANCE WITH SECTION 12, RULE 126 OF THE RULES ON CRIMINAL
PROCEDURE.

It was the furtive finger that triggered his arrest.

The Supreme Court held:

The identification by the informer was the probable cause as determined by the officers
(and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest
him. Even expediency could not be invoked to dispense with the obtention of the warrant.

"At the time the peace officers in this case identified themselves and apprehended the
petitioner as he attempted to flee they did not know that he had committed, or was
actually committing the offense of illegal possession of firearms and ammunitions.

Hence, the warrantless search was also illegal and the evidence obtained thereby was
inadmissible.

They just suspected that he was hiding something in the buri bag.

What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no
outward indication that called for his arrest. To all appearances, he was like any of the
other passengers innocently disembarking from the vessel.

Aminnudin was reiterated in People v. Encinada, under substantially identical

factual setting. To the trial court's justification that there was no time to obtain a
search warrant because the information was received at 4:00 o'clock in the
afternoon, and that the ship was to dock at 7:00 a.m., the court pointed to
Administrative Order No. 12 which allows applications for search warrants even
after office hours.

They did not know what its contents were. The said circumstances did not justify an arrest
without a warrant.
Thus, to justify the arrest without warrant, under Section 6 (a), it is not enough that a
crime is actually being committed in his presence.
The person or peace officer making the arrest must be personally aware of the commission
of such crime."
People v. Mengote

COMPARE: Where there was No Opportunity to Obtain Warrant

In People v. Saycon A warrantless arrest, search and seizure based on information from
a NARCOM agent that a suspected Shabu courier was arriving at Dumaguete City on board
a vessel and who was pointed to by another agent was justified although the suspect was
not perceptively committing a crime but (like Aminnudin) merely alighted from the vessel.
The search and seizure was justified under the principle justifying the search of moving
vehicles as there was no time to obtain a warrant.
The case was distinguished from Aminnudin where there was time to obtain a search
warrant.
The record shows that the NARCOM officers were uncertain as to the precise date and time
appellant would arrive from Manila; all they knew is that he would be taking a boat from
Manila to Dumaguete on the morning of 8 July 1992.
More specific details were received earlier in the morning that the appellant would be
arriving the same morning. Clearly, the agents had to act quickly but there was not
enough time to obtain a warrant of arrest or search warrant.

Mere suspicion Insufficient

WHERE THE ACCUSED CARRYING A BURI BAG WAS ACTING
SUSPICIOUSLY AND WAS FOUND IN POSSESSION OF A FIREARM AND
EXPLOSIVE, THE SOLICITOR GENERAL ARGUED THAT WHEN THE TWO
POLICEMEN APPROACHED THE PETITIONER, HE WAS ACTUALLY
COMMITTING OR HAD JUST, COMMITTED THE OFFENSE OF ILLEGAL

The police received a telephone call that there were three suspicious looking persons at
the corner of Juan Luna and North Bay Boulevard at Tondo. The police responded and saw
two men "looking from side to side," one of whom was holding his abdomen. The police
approached them and identified themselves as policemen whereupon the two tried to ran
away. The other lawmen surrounded them and searched them and one of them was found
with an unlicensed firearm and live ammunition. Was the search and seizure legal?
Held: It is illegal. At the time of the arrest, the appellant was merely looking from side to
side and holding his abdomen. This is not a crime.
The police did not know then what offense if at all had been committed and neither were
they aware of the participation therein of the appellant, x x x
As for the illegal possession of firearm, the police discovered this only after he had been
searched and investigated.
The Supreme Court cited the cases of Burgos, Alih Castro and Aminnudin holding that it
would be a sad day, indeed, if any person could be summarily arrested and searched just
because he is holding his abdomen, even if it be possibly because of a stomachache or if a
peace officer could clamp handcuffs on any person with a shifty look on suspicion that he
may have committed a criminal act or is actually committing or attempting to commit it.
People v. Rodriguez
The arrest, search and seizure was held illegal in view of the admission by the police that
he did not actually see the appellants transacting but only saw them acting suspiciously.

165

The court held that the cardinal rule is that no person may be subjected by the police to a
search of his house, body or personal belonging except by virtue of a search warrant or on
the occasion of a lawful arrest.
If a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, merely on suspicion that he is
engaged in some felonious enterprise, and in order to discover if he has indeed committed
a crime, it is not only the arrest which is illegal but also, the search on the occasion thereof
as being the fruit of the poisonous tree.
In that event, any evidence taken, even if confirmatory of the initial suspicion, is
inadmissible "for any purpose in any proceeding.

COMPARE:
Arrest Based on Suspicion; Where there is Urgency
Where around 9:30 in the evening the police on a surveillance mission noticed a person
carrying a red travelling bag who was acting suspiciously and they confronted himand
requested him to open the red travelling bag but the person refused. Found inside the bag
were marijuana leaves wrapped in a plastic wrapper and weighing one kilo, more or less.
Accused was held to havev been caught in flagrante, since he was carrying marijuana at
the time of his arrest. This case therefore falls squarely within the exception.
The warrantless search was incident to a lawful arrest and is consequently valid.

The court a quo correctly ruled: The facts and circumstances attendant precisely fall under
Sec. 5(a), Rule 113 of the Rules on Criminal Procedure.
The subsequent arrest of Marquez and accused were made under the principle of hot
pursuit.
The recovery of the marijuana from Marquez and the P190.00 from accused by the said
police officers were not violative of their constitutional rights since Marquez and the
accused voluntarily surrendered them to the police officers.
But even for the sake of argument that the recovery of the marijuana and peso bills were
against the consent of Marquez and accused, still, the search on their persons were
incidental to their valid warrantless arrest."

Compare
Mere time to obtain a warrant not sufficient to invalidate a warrantless arrest. To
be considered likewise is whether or not a warrant may be issued under the
circumstances.
In Lo Ho Wing (supra), it was firmly established from the factual findings of the trial court
that the authorities had reasonable ground to believe that appellant would attempt to
bring in contraband and transport it within the country.

In contrast, to the Aminnundin case, Tangliben presented urgency.

The belief was based on intelligence reports gathered from surveillance activities on the
suspected syndicate, of which appellant was touted to be a member.

Although the trial court's decision did not mention it, the transcript of stenographic notes
reveals that there was an informer who pointed to the accused-appellant as carrying
marijuana.

Aside from this, they were also certain as to the expected date and time of arrival of the
accused from China.

Faced with such on-the-spot information, the police officers had to act quickly.

But such knowledge was clearly insufficient to enable them to fulfill the requirements for
the issuance of a search warrant.

There was not enough time to secure a search warrant. We cannot therefore apply the
ruling in Aminnudin to the case at bar.

Still and all, the important thing is that there was probable cause to conduct the
warrantless search, which must still be present in such a case.

To require search warrants during on-the-spot apprehensions of drug pushers, illegal

possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc.
would make it extremely difficult, if not impossible to contain the crimes with which these
persons are associated.

In People v. Montilla, the opportunity to obtain a warrant was not considered as sufficient
to invalidate the legality of the warrantless arrest.

Upon being informed by their civilian informer that there would ie a transaction involving
the buying and selling of marijuana which would take place on that same day, Patrolmen
immediately proceeded to the vicinity where the alleged transaction would take place.
While positioned at a street corner, they saw appellant and Warner Marquez ay the side of
the street about forty to fifty meters away from them the police officers).
They saw Marquez giving something to appellant who, thereafter, handed a wrapped
object to Marquez who then inserted the object inside the front of his pants infront of his
abdomen while appellant, on his part, placed the thing given to him inside his pocket.

For, under the circumstances, the information relayed was too sketchy and not detailed
enough for the obtention of the corresponding arrest or search warrant.
The informant did not know to whom the drugs would be delivered and at which particular
part of the barangay there could be such delivery or the precise time of the suspect's
arrival, or of his means of transportation, the container or contrivance wherein the drugs
were concealed and whether the same were arriving with, or being brought by someone
separately from the courier.
The court ruled that in determining the opportunity for obtaining warrants, not only the
intervening time is controlling but all the coincident and ambient circumstances should be

166

considered especially in rural areas.

The suspicious stuff taken from the accused were confirmed to be marijuana
after tests were conducted on them.

Shift In Jurisprudence: Warrantless Arrest Under Section 5(a) Based On Reasonable Ground
of Suspicion

a.

The attending circumstances taking place before their eyes led the police
officers to reasonably conclude that an offense was actually being
committed.

Probable Cause Based on Surveillance; No Crime Committed

In Harvey v. CID Commissioner Santiago, the arrest of petitioners was based
on probable cause determined after close surveillance for three (3) months
during which period their activities were monitored.

d.

The Supreme Court justified the arrest and the seizure of the photo
negatives, photographs and posters without warrant due to the existence of
probable cause.
b.

In these cases, the fact that the search yielded possession of illegal articles
was included as a justification for a warrantless
Arrest under Section 5(a) although the arresting officer at the time of arrest
has no personal knowledge of a crime being committed in their presence as
prescribed in U.S. v. Samonte (supra); Sayo v. Chief of Police (supra); People
v. Burgos (supra); and People v. Posadas

Reasonable Ground to Believe Rule Applied

The Supreme Court explained that petitioners were not caught in the act,
does not make their arrest illegal.
Petitioners were found with young boys in their respective rooms, the one
with John Sherman being naked.
Under those circumstances, the CID agents had reasonable grounds to
believe that petitioners had committed "pedophilia" defined as psychosexual perversion involving children."
"Pedophilia for unusual sexual activity in which children are the preferred
sexual objects"
Solicitor General's Return of the Writ, on p. 101.
While not a crime under the Revised Penal Code, it is a behavior offensive to
public morals and violative of the declared policy of the State to promote
and protect the physical, moral, spiritual, social well-being of our youth.

c.

People v. Allan Rodriguez

Reasonable ground based on tip of informer delivery of suspicious stuff to
tricycle driver justified warrantless arrest.
The police officers were tipped off by an informer about the illegal trade of
the accused.

Personal Knowledge Under Section 5(a) Was Not Likewise Strictly Observed
in the Following Cases:

Meaning of Personal Knowledge of Facts Constituting Probable Cause Sufficient

In its resolution denying the Motion for Reconsideration in the Umil v. Ramos
cases, the majority opinion explained the meaning of Personal Knowledge of
Facts, as follows:
It has been ruled that 'Personal Knowledge of Facts,' in arrests without warrant
must be based upon probable cause, which means an actual belief or reasonable
grounds of suspicion.
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."
The Continuing Crime Principle to Justify Warrantless Arrest

The exact location where this trading in drugs was taking place was given to
them.

The Umil u. Ramos, and seven other petitions for habeas corpus were all based
on the ground that the arrests of the petitioners were made without warrant and
that no preliminary investigation was first conducted so that the information
filed against them are void.

They witnessed the person hand deliver a suspicious stuff to the tricycle
driver who in turn gave something to the person.

The Supreme Court in a per curiam decision, however, found that the persons in
whose behalf these petitions for habeas corpus have been filed, were freshly
167

committed and that the accused were actually committing an offense, when
apprehended, so that their arrests without a warrant were clearly justified.

3)

Both are admittedly members of the standing committee of the NUFC and, when
apprehended in the house of Renato Constantino, they had a bag containing
subversive materials, and both carried firearms and ammunition for which they had no
license to possess or carry.

The court then proceeded to give a brief narration of the facts and events
surrounding each of the eight petitioners.
1)

In Umil v. Ramos, one of the petitioners, Rolando Dural who was then confined in the
hospital for a gunshot wound was positively identified as a member of the sparrow
unit who went on top of the hood of the CAPCOM Mobile patrol car.

The record of these two (2) cases shows that at about 7:30 o'clock in the evening of
August 13,1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of
Renato Constantino at Marikina Heights, Marikina, which was still under surveillance
by military agents. The military agents noticed bulging objects on their waist-lines.

The Supreme Court found that he was not arrested while in the act of shooting the two
soldiers. He was charged with the crime of Double Murder with Assault upon Agents of
Persons in Authority.

When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were
asked to show their permit or license to possess or carry firearms and ammunition,
but they could not produce any. Hence, they were brought to PC Headquarters for
investigation. Found in their possession were the following articles:

Nor was he arrested just after the commission of the offense for his arrest came a day
after the shooting incident. He was arrested in the hospital. Seemingly, his arrest
without warrant is unjustified.

(c) Voluminous subversive documents

(d) Firearms and ammunitions.

The Court, however, justified the arrest of Rolando Dural for being a member of the
New People's Army (NPA) an outlawed subversive organization.

Anonuevo and Casiple claim that they were unlawfully arrested because there was no
previous warrant of arrest. The Supreme Court held the claim as without merit.

"Subversion being a continuous offense, the arrest of Rolando Dural without warrant is
justified as it can be said that he was committing an offense when arrested.
The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes,
and crimes or offenses committed in furtherance thereof or in connection therewith
constitute direct assaults against the State are in the nature of continuing crimes."
The Court then went on to quote Garcia-Padilla v. Enrile,
held:

91

"The record shows that Domingo Anonuevo and Ramon Casiple were carrying
unlicensed firearms and ammunition in their persons when they were apprehended."
4)

where the Supreme Court

In Ocaya u. Aguirre, the arrest without warrant, of Vicky Ocaya was justified under the
Rules, since she had with her unlicensed ammunition when she was arrested.
The record of this case shows that on 12 May 1988, agents of the PC Intelligence and
investigation of the Rizal PC-INP Command, armed with a search warrant issued by
Judge Eutropio Migrino of the Regional Trial Court ofPasig, Metro Manila, conducted a
search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina,
Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA.

"From the facts as above narrated, the claim of the petitioners that they were initially
arrested illegally is, therefore, without basis in law and in fact.
The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses committed in the furtherance on the
occasion thereof, or incident thereto, or in connection therewith under Presi dential
Proclamation No. 2045, are all in the nature of continuing offenses which set them
apart from the common offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude.

In the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera.
Subversive documents and several rounds of ammunition for a .45 cal. pistol were
found in the car of Vicky Ocaya.
As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for
investigation. When Vicky Ocaya could not produce any permit or authorization to
possess the ammunition, an information charging her with violation of P.D. No. 1866
was filed with the Regional Trial Court of Pasig, Metro Manila.

Clearly then, the arrest of the herein detainees was well within the bounds of the law
and existing jurisdiction in our jurisdiction."
2)

In Anonuevo v. Ramos, the arrest of Domingo Anonuevo and Ramon Casiple without a
warrant was also found to be justified.

In G.R. Nos. 84581-82, the arrest of Amelia Roque and Wilfredo Buenaobra who
admitted membership in the NPA and officers and/or members of the NUFC-CPP were
likewise justified for the same reasons stated in UMIL.

The case is docketed therein as Criminal Case No. 737. Danny Rivera, on the other
hand, was released from custody.

The arrest without warrant of Roque was additionally justified as she was, at the time
of apprehension, in possession of ammunition without license to possess.

In answer to her claims that she'.,was illegally arrested, the Supreme Court held that
Vicky Ocaya was arrested in flagrante delicto so that her arrest without a warrant is
justified.

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5)

not presuppose as a necessary requisite for the fulfillment thereof, the indubitable
existence of a crime.

In Espiritu v. Lim, the respondents claim that the petitioner was lawfully arrested
without a judicial warrant of arrest (on November 23) since petitioner when arrested
had in fact just committed an offense in the afternoon of 22 November 1988, during a
press conference of the National Press Club.

For the detention to be perfectly legal, it is sufficient that the person in authority
making the arrest has reasonably sufficient grounds to believe the existence of an act
having the characteristics of a crime and that the same grounds exist to believe that
the person sought to be detained participated therein."

Deogracias Espiritu through tri-media was urging all drivers and operators to go on
nationwide strike on November 23, 1988, to force the government to give in to their
demands to lower the prices of spare parts, commodities, water and the immediate
release from detention of the president of the PISTON (Pinagkaisahang Samahan ng
Tsuper at Operators Nationwide).
Further heard was Deogracias Espiritu taking the place of PISTON president Medardo
Roda and also announced the formation of the Alliance Drivers Association to go on
nationwide strike on November 23, 1988.
Policemen waited for petitioner outside the National Press Club in order to investigate
him, but he gave the lawmen the slip.
He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and
symphathizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa,
Manila where he was heard to say:
"Bukas tuloy ang welga natin, sumagot no. ang Cebu at Bicol na kasali sila, at hindi
tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto noting pagbaba
ng halaga ng spare parts, bilihin at ang pagpapalaya sa ating pinuno na si Ka Roda
hanggang sa magkagulo na."
The police finally caught up with the petitioner on 23 November 1988. He was invited
for questioning and brought to Police headquarters after which an Information for
violation of Art. 142 of the Revised Penal Code was filed against him before the
Regional Trial Court of Manila.
The Supreme Court held that the arrest of petitioner without a warrant is in
accordance with the provisions of Rule 113, Sec. 5(b).
6)

In Nazareno v. Station Commander, the record of this case shows that at about 8:30
o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a
group of men near the corner of T. Molina and Mendiola Streets in Alabang,
Muntinlupa, Metro Manila. One of the suspects in the killing was Ramil Regala who was
arrested by the Police on 28 December 1988. Upon questioning, Regala pointed to
Narciso Nazareno as one of his companions in the killing of the said Romulo Bunye II.
In view thereof, the police officers, without warrant, picked up Narciso Nazareno and
brought him to the police headquarters for questioning. The Supreme Court held:
"Evidently, the arrest of Nazareno was effected by the police without warrant pursuant
to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated by his coaccused Ramil Regala in the killing of Romulo Bunye II; and after investigation by the
police authorities. As held in People v. Ancheta:
"The obligation of an agent of authority to make an arrest by reason of a crime, does

169

THE PRINCIPLE OF KNOWLEDGE OF PROBABLE CAUSE TO JUSTIFY

WARRANTLESS ARREST

The court held that the officers thus realized that he was their man even if he
was simply carrying a seemingly innocent pair of luggage for personal effects.

In People v. Malmstedt

The Court therein wrote: "the apprehending officer must have been spurred by
probable cause in effecting an arrest which could be classified as one in cadence
with the instances of permissible arrests set out in Section 5(a)."
According to the court, the conventional view is that probable cause, while a
relative term the determination of which must be resolved according to the facts
of each case, is understood as having reference to facts and circumstances
which could lead a reasonable, discreet, and prudent man to believe and
conclude as to the commission of an offense, and that the objects sought in
connection with the offense are in the place sought to be searched.

The receipt of information by NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession, plus the suspicious failure of the accused to produce his
passport, taken together as a whole, led the NARCOM officers to reasonably believe that
the accused was trying to hide something illegal from the authorities.
From these circumstances arose a probable cause which justified the warrantless search
that was made on the personal effects of the accused.
In other words, the acts of the NARCOM officers in requiring the accused to open his pouch
bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy
bears with hashish stuffed inside them were prompted by accused's own attempt to hide
his identity by refusing to present his passport, and by the information received by the
NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession.

The court pointed out that under Rule 112 of the Rules of Court, the quantum of
evidence in preliminary investigation is such evidence as suffices to "engender a
well founded belief as to the fact of the commission of the crime and the
respondent's probable guilt thereof.

To deprive the NARCOM agents of the ability and facility to act accordingly, including to
search even without warrant, in the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment of society.

It has the same meaning as the related phraseology used in other parts of the
same Rule, that is, that the investigating fiscal "finds cause to hold the
respondent for trial," or where "a probable cause exist."

Accused was searched and arrested while transporting prohibited drugs (hashish).

It should, therefore, be in that sense, wherein the right to effect a warrantless

arrest should be considered as legally authorized.

A crime was actually being committed by the accused and he was caught in flagrante
delicto.
Thus, the search made upon his personal effects falls squarely under paragraph (1) of the
foregoing provisions of law, which allow a warrantless search incident to a lawful arrest."
While it is true that the NARCOM officers were not armed with a search warrant when the
search was made over the personal effects of accused, however, under the circumstances
of the case, there was sufficient probable cause for said officers to believe that accused
was then and there committing a crime.
Sufficiency of Knowledge of Probable Cause Reiterated En Bane

Probable cause as a ground to justify a warrantless arrest in flagrante was

reiterated in the en bane decision in People u. Montilla.
In this case, an informer informed the police the day before that a drug courier
whom he could recognize would be arriving in Cavite from Baguio City.
As soon as the appellant had alighted from the passenger jeepney the informer
at once indicated to the officers that their suspect was at hand pointing to him
from the waiting shed, the informer told them that the marijuana was likely hidden inside the travelling bag and carton box which appellant was carrying at the
time.

COMPARE:

WHEN WARRANTLESS ARREST BASED ON INFORMATION INVALID

In People v. Aruta, the police was tipped off by his informant that a certain "Aling
Rosa" will be arriving from Baguio City the following day with a large volume of
Marijuana.
The police proceeded to the place at 4:00 p.m. of the following day and
deployed themselves near the PNB. A Victory Liner Bus arrived.
Two females and a male got off, and the pointed to "Aling Rosa" carrying a
traveling bag. The police approached her and inquired about the contents of the
traveling bag which she handed to the police, who, upon inspection found dried
leaves of marijuana packed inside a plastic bag.
In determining whether the warrantless search and seizure was valid.
The Court noted that there was ample opportunity to obtain a warrant of arrest.
The identity of the accused was ascertained.
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The accused was not acting suspiciously, and distinguished the case:

No reference was made to Montilla.

a.

In applicable earlier decisions, the Supreme Court held that there was probable
cause in the following instances:

b.

from People v. Tangliben (supra), where policemen were confronted with an

on the spot tip. Moreover, the policemen knew that the Victory Liner
compound is being used by drug traffickers as their business address.
More significantly, Tangliben was acting suspiciously.

(a) where the distinctive odor of marijuana emanated from the plastic bag
carried by the accused;

His actuations and surrounding circumstances led the policemen to

reasonably suspect that Tangliben is committing a crime.

(b) where an informer positively identified the accused who was observed to
have been acting suspiciously;

In instant case, there is no single indication that Aruta was acting

suspiciously.

(c) where the accused fled when accosted by policemen;

from People v. Malmstedt. In Malmstedt, where there was no reasonable

time for the police authorities to obtain a search warrant, and his actuations
also aroused suspicion of the officers conducting the operation.
In Aruto, there was time to obtain a search warrant, her identity was priorly
ascertained, and she was not acting suspiciously.
Malmstedt was searched abroad a moving vehicle, a legally accepted
exception to the warrant requirement, Aruta on the other hand, was
searched while she was about to cross the street.

c.

d.

from People v. Bagista, where probable cause was drawn from the fact that
the accused fitted the description given by the NARCOM informant and that
it involves a search of a moving vehicle plus the fact the police officers
erected a checkpoint in view of the confidential information from the regular
informant that a woman having the same appearance as that of the
accused would be bringing marijuana from up to north.
from Manalili v. Court of Appeals, where the court held that the policemen
had sufficient reason to accost accused to determine if he was actually
"high" on drugs due to suspicious actuations, he was observed to have
reddish eyes and to be walking in swaying manner he appeared to be
trying to avoid the policemen coupled with the fact that based on the
information, this area was a haven for drug addicts.

The Court noted that in all the above-cited cases, there was information received
which became the bases for conducting the warrantless search.
Furthermore, additional factors and circumstances were present which, when
taken together with the information constituted probable causes which justified
the warrantless searches and seizures in each case.

(d) where the accused who were riding a jeepney were stopped and searched by
policeman who had earlier received confidential reports that the said
accused would transport a large quantity of marijuana; and
(e) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent
or spy one who participated in the drug smuggling activities of the
syndicate to which the accused belonged the said accused where bringing
prohibited drugs into the country
Other Cases where there was no Probable Cause
There is, no probable cause where the arresting team was only armed with
knowledge of the suspect's "attire" which the witness could not even remember.
The team did not have a physical description of the suspect nor his name.
They were not even given a specific place within which to target their search of
the suspect, only a vicinity of the Muslim Area in Quiapo, near the Muslim
Mosque.
Yet the arresting team directly zeroed in on the accused and his companions
who were only eating halo-halo at a small restaurant, surely not a crime in itself.
While SP04 Clemente claims that accused had a "bulging waistline," this alone,
in the light of the availing circumstances, is insufficient to constitute probable
cause for the arrest of the accused.
In another case, the police officers were informed that accused were repacking
drugs.
Accompanied by an informer, they peeped first through the window before they
171

saw the activities of the suspects inside the room and entered the house and
arrested the suspects.

Tammocalao beach bearing prohibited drug on the date in question.

CHUA was not identified as a drug courier by a police informer or agent.

The court held that the arrest, search and seizure were illegal.
They should have first conducted a surveillance considering that the activities
and identities of the suspects were already known and if there was probable
cause, they should have applied for a search warrant.

The fact that the vessel that ferried him to shore bore no resemblance to the
fishing boats of the area did not automatically mark him as in the process of
perpetrating an offense.

The court reiterated the 7 situations of a warrantless search and held that the
arrest, search and seizure do not fall on any of them.

And despite claims by CID and BADUA that CHUA attempted to flee, ALMOITE
testified that the latter was merely walking and oblivious to any attempt at
conversation when the officers approached him.

In another case, the court noted that the ETC never took the pains of pointing to
such facts, (constituting probable cause) but predicated mainly its decision on
the finding that "accused was caught red-handed carrying the bag-full of [s]habu
when apprehended."

In People v. Luaa, a buy-bust operation was conducted against the accused.

After he had gone inside his house and returned with the three tea bags of
marijuana and received the marked money, the designated poseur-buyer gave
the signal to his fellow police officers who closed in and arrested the accused.

In short, there is no probable cause.

In the course of the arrest, a police officer noticed something bulging at

accused's waistline, which turned out to be an unlicensed .38 caliber "paltik"
with two live bullets.

At least in People v. Tangliben, the Court agreed with the lower court's finding
that compelling reasons (e.g., accused was acting suspiciously, on the spot
identification by an informant that accused was transporting prohibitive drug,
and the urgency of the situation) constitute of probable cause impelled.

Accused was charged with illegal possession of firearm.

The search was held to be a valid incident of a lawful arrest.

In another case, the Solicitor General proposes that the following details are
suggestive of probable cause persistent reports of rampant smuggling of
firearm and other contraband articles, CHUA's watercraft differing in appearance
from the usual fishing boats that commonly cruise over the Bacnotan seas,
CHUA's illegal entry into the Philippines (he lacked the necessary travel
documents or visa), CHUA's suspicious behavior, i.e., he attempted to flee when
he saw the police authorities, and the apparent ease by which CHUA can return
to and navigate his speedboat with immediate dispatch towards the high seas,
beyond the reach of Philippine laws.

BUY-BUST OPERATIONS CONSIDERED AS IN FLAGRANTE ARRESTS

Buy-Bust Operations Search and Seizure Pursuant to Buy-Bust Operation
What is a buy-bust operation?
A buy-bust operation is far variant from an ordinary arrest; it is a form of
entrapment which has been repeatedly accepted to be valid means of arresting
violators of the Dangerous Drugs Law.

The Court, however, found that these do not constitute "probable cause."
Tell-tale Clues of Probable Cause Reiterated
None of the telltale clues, e.g., bag or package emanating the pungent odor of
marijuana or other prohibited drugs confidential report and/or positive
identification by informers of courier(s) of prohibited drug and/or the time and
place where they will transport/ deliver the same, suspicious demeanor or
behavior and suspicious bulge in the waist accepted by this Court as sufficient to
justify a warrantless arrest exists in this case.
There was no classified information that a foreigner would disembark at

In a buy-bust operation, the violator is caught in flagrante delicto and the police
officers conducting the operation are not only authorized but duty-bound to
apprehend the violator and to search him for anything that may have been part
of or used in the commission of the crime.
In flagrante arrests are usually made in drug cases during a buy-bust operation.
A buy-bust operation is a form of entrapment employed by peace officers to
catch a malefactor in flagrante delicto.
It is the employment by peace officers to catch a malefactor in flagrante delicto.
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It is the employment of such ways and means for the purpose of entrapping or
capturing a lawbreaker.
The term, in connection with violation of the Dangerous Drugs Act, is a form of
entrapment employed by peace officers to trap and catch malefactor in
flagrante delicto.
But, while buy-bust operation is a recognized means of entrapment for the
apprehension of drug pusher, it does not always commend itself as the most
reliable way to go after violators of the Dangerous Drugs Act as it is susceptible
to mistake as well as to harassment, extortion and abuse.
The Court therefore stressed that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be clearly and
adequately shown.

Thus, in People v. Enrile, an arrest based on information of a person who was

entrapped to selling marijuana that the source of the Marijuana was Enrile and
led the police to Enrile's house and after calling for the latter pointed to him as
the source of the marijuana was held as invalid.
In People v. Bautista, an arrest and search based on information of the poseurbuyer to the police who were outside the house waiting that he was able to buy
the shabu from the appellant inside the house who immediately went inside and
arrested the appellant was held as valid.
In People v. Buenaventura, an arrest based on information of the seller after he
was apprehended in a buy-bust operation that the source of the marijuana was
the accused who was then arrested in a follow-up operation was held as invalid
citing the case of People u. Enrile.
In People v. Merabueno, the Supreme Court found:

This must start from the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of the consideration until
the consummation of the sale by the delivery of the illegal drug sub ject of the
sale.

DURING THE INVESTIGATION OF BASILIO, THE POLICE LEARNED THAT

THE SUPPLIER OF THE MARIJUANA WAS CRUZ. A POLICE TEAM WAS DISPATCHED TO ANTIPOLO, RIZAL, WHERE CRUZ LIVED. THE FIRST MISSION
RETURNED WITHOUT FINDING CRUZ.

The manner by which the initial contact was made, whether or not through an
initial contact was made, whether or not through an informant, the offer to
purchase the drug, the payment of the "buy-bust" money, and the delivery of
the illegal drug, whether to the informant alone or the police officer, must be the
subject of strict scrutiny by courts to insure that the law-abiding citizens are not
unlawfully induced to commit an offense.

The team returned to Antipolo at 7:00 P.M. of the same day. According to the police, they
met Cruz on their way to his house while Cruz claimed that the police just barged into his
house.

Criminals must be caught but not at all cost.

Certainly, the arrest was not made in the course of a "hot pursuit" of Cruz, because he was
not in Marikina during the "buy-bust" operation. In such a case, the police should have first
secured a warrant of arrest and a search warrant before they arrested and bodily searched
Cruz.

At the same time, however, examining the conduct of the police should not
disable courts into ignoring the accused's predisposition to commit the crime.
If there is overwhelming evidence of habitual delinquency, recidivism or plain
criminal proclivity, then this must also be considered. Courts should look at all
factors to determine the predisposition of an accused to commit an offense in so
far as they are relevant to determine the validity of the defense of inducement.
Principle of Continuity-in Buy-Bust Operations
The buy-bust operation and the search and seizure pursuant to the buy-bust
operation must be continuous:
Buy-Bust Operation and Search Rejected for Not Being Continuous.

But assuming that the version of the police is the correct one, there was no reasonable
basis to place Cruz under arrest without a warrant and then search him, also without a
warrant.

This case should be distinguished from People u. Cuachan, involving a continuing

buy bust operation where after the sale, the shabu was handed to a policeman a
block away who after determining it was shabu which took only a few minutes
immediately proceeded to the house of the appellant and arrested him.
In the case, the police conducted a buy-bust operation.
As planned, Pat. Uggadan and the informant proceeded to the residence of their
quarry while Pfc. Reyes and the other members of the team posted themselves
in strategic places.
After a few minutes, Pat. Uggadan together with the informant, reported to Pfc.
Reyes that he had succeeded in buying shabu from the appellant at the same
173

time presenting the merchandise to Pfc. Reyes.

After determining it was shabu, Pfc. Reyes and his men immediately proceeded
to the residence of the appellant and found in one of the rooms several men
seated around a table, engaged in pot session and several paraphernalia.
Pat. Uggadan pointed to the appellant to PFC Reyes as the person who earlier
sold Shabu to him.
Thereupon, Pfc. Reyes frisked accused-appellant and found in his person the two
100.00 peso bills he gave to Pat. Uggadan as buy-bust money and a quantity of
shabu contained in a plastic bag.
The court justified the warrantless arrest under Section 5, Rule 113 of the Rules
of Court on warrantless arrest and the obligation of the police to apprehend even
without a warrant of arrest. Pat. Uggadan witnessed the illegal act of selling
shabu on the occasion of the buy-bust operation in front of the room of the
accused.

Shabu which was agreed upon with a Chinese business man in Las Pinas, Metro
Manila, did not take place in the presence of the agents, the delivery or
attempted delivery of the subject matter took place in their presence.
The Court held the warrantless arrest of appellant inside Rooir 77 was merely
the culmination of an entrapment operation and that the taking of shabu from
appellant was either done immediately be fore, or was an incident to a lawful
arrest.
The Hot Pursuit Arrest
Elements:
a.
b.
c.

Offense have been committed;

Offense has just been committed;
Probable cause based on personal knowledge of facts or circumstances that
persons to be arrested committed it.

a. First Element: Meaning of Offense Committed

He did not make the arrest right then and there because there were only himself
and the informant as against the different male and female voices he heard from
both rooms of appellant's house.

The present rule abandons the pronouncement in People v. Burgos, that in

arrests without a warrant under Section 6(b), it is not enough that there is
reasonable ground to believe that the person to be arrested has committed
a crime.

Considering that the operation took place inside the house of appellant,
understandably Pat. Uggadan and his informant had to get out of the house and
inform their backup that the sale had been consummated.
Furthermore, weighty consideration is the fact that, as
Uggadan immediately gave the shabu to Pfc. Reyes who
and after the latter had determined that it was shabu,
minutes, they all immediately proceeded to the house of
him.

A crime must in fact or actually have been committed first.

previously stated, Pat.

was only a block away
which only took a few
appellant and arrested

The rule now is the indubitable existence of a crime is not necessary to

justify a warrantless arrest.

It was a continuing buy-bust operation which, as the phrase connotes,

commenced with buying shabu and culminated in his arrest. Since his arrest was
lawful, it follows that the incidental search was also valid.

Acting on such information and in their presence, their superior, Captain

Castillo, gave the informant marked money to buy marijuana.

In People v. Ramos, an informant apprised the police of the presence of a

drug pusher at the corner of 3rd Street and Rizal Avenue, Olongapo City.

The informant, now turned poseur-buyer, returned with two sticks of

marijuana. Captain Castillo again gave said informant marked money to
purchase marijuana.

In another case, the arresting officers were informed by the NARCOM Chief that
a transaction had been agreed upon in Las Pinas, Metro Manila for the delivery
of Shabu to take place in Room No. 77 of the Hyatt Terraces at Baguio City.

The informant poseur-buyer thereafter returned with another two sticks of

marijuana.

Undercover agents waited for the appellant inside the room, but the latter did
not show up in the afternoon, but the following morning. Appellant with an
undercover agent arrived at Room No. 77.

The police officers then proceeded to the corner of 3rd Street and Rizal
Avenue and effected the arrest of appellant.

The latter signaled that appellant had Shabu with him. While the sale of the
174

The Supreme Court with Justice Gutierrez as ponente, held, from the above
facts, that it may be concluded that the arresting police officers had
personal knowledge of facts implicating the appellant with the sale of
marijuana to the informant-poseur-buyer.

when the person making the arrest learned or was informed of such
commission.
1) Espiritu v. Lim The arrest of the accused one day after commission of
the crime of Inciting to Sedition was held to be valid.

The arrest was held legal and the consequent search which yielded 20 sticks
of marijuana was lawful for being incident to a valid arrest.

2) People v. Nazareno Arrest made 14 days after commission of the

crime is valid.

The fact that the prosecution failed to prove the sale of marijuana beyond
reasonable doubt does not undermine the legality of the appellant's arrest.

3) People v. Sucro

It is not necessary that the crime should have been established as a fact in
order to regard the detention as legal.

The fact that Macabante, when intercepted by the police, was caught
throwing the marijuana sticks and when confronted, readily admitted
that he bought the same from the accused-appellant clearly indicates
that accused had just sold the marijuana sticks to Macabante, and
therefore, had just committed an illegal act of which the police officers
had personal knowledge, being members of the team which monitored
Sucre's nefarious activity.

The legality of detention does not depend upon the actual commission of the
crime, but upon the nature of the deed when such characterization may
reasonably be inferred by the officer or functionary to whom the law at the
moment leaves the decision for the urgent purpose of suspending the liberty
of the citizen.

4) Rolito Go v. Court of Appeals Arrest six days after commission of the

crime based on information from alleged eyewitness held unlawful.

People v. Euaristo, cited the doctrine in People v. Sucro (supra), when crime
is deemed committed in one's presence e.g., hears the disturbances
created thereby and proceeds at the scene thereof.
To justify a warrantless arrest not on Sec. 5(a) but Sec. 5(b), the Supreme
Court held that the usual observation of a bulge on the waist of Carillo, along
with the earlier report of gunfire, as well as the peace officer's professional
instincts, are more than sufficient to pass the tests of the rules.

A warrantless arrest three (3) days after commission of the crime or 19

hours thereafter were held to be unlawful.
c.

Third Element: Personal Knowledge of Facts

Following are the doctrines under the 1985 Rule on the meaning of Personal
Knowledge of Facts Based on Information Rejected

Consequently, under the facts, the firearms taken from Carillo can be said to
have been incidental to a lawful and valid arrest under Sec. 5(b), Rule 113.

1) People v. Burgos, personal knowledge based on, information by suspect

rejected.

b. Second Element: Meaning of just been committed

2) Alih v. Castro, (Need for personal knowledge)

"Just been committed" connotes immediacy in point of time, per dissent of

Justice Teehankee cited by C.J., Fernan in his concurring dissenting in Umil v.
Ramos. It means a very short time ago.

3) People v. Aminnudin Warrantless arrest based on tip of informer who

pointed to the suspect was rejected.
4) People u. Sucro, citing People v. Bati Police officers have personal
knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused.

The arrest must be made almost immediately as soon after these acts, not
at anytime after the suspicion of the arresting officer begins, no matter how
long ago the offense was committed.
The time interval between the actual commission of the crime and the
arrival of the arresting officer must be brief indeed.
The recency contemplated here, in relation to the making of the warrantless
arrest, is the time when the crime was in fact committed, and not the time

5) In People u. Alvarez Arrest based on surveillance by informant who

was once a policeman was held to be valid.
6) People v. Briones Warrantless arrest made by a police officer based on
175

disclosure by eyewitness who disclosed the identity of the perpetrator

was rejected.

They saw Blace dead in the hospital and when they inspected the scene of
the crime, they found the instruments of death; a piece of wood and a
concrete hollow which the killers had used to bludgeon him to death.

7) People v. Cendana Arrest based on information from unknown sources

given a day after the commission of the crime was rejected.

The eyewitness, Edna Edwina Reyes, reported the happening to the

policemen and pinpointed her neighbor, Gerente as one of the killers.

8) People v. Tonog Arrest based on knowledge of facts gathered from

investigation was held valid.

Under those circumstances, since the policemen had personal knowledge of

the violent death of Blace and of facts indicating that Gerente and two
others had killed him, they could lawfully arrest Gerente without a warrant.

In this case there was an oral confession.

9) Nazareno v. Station Commander of Muntinlupa Arrest based on
information of a suspect 14 days aftel commission of crime held as valid.
This is of doubtful validity.
10) Rolito Go u. Court of Appeals (supra, February 1992) Justice Feliciano as
ponente Arrest 6 days after shooting based on information of alleged
eyewitnesses was held unlawful
Petitioner's arrest took place six (6) days after the shooting of Maguan.
The arresting officers obviously were not present, within the meaning of
Section 5(a), at the time petitioner had allegedly who Maguan.

If they had postponed his arrest until they could obtain a warrant, he would
have fled the law as his two companions did.
3) In People u. Bautista, held as valid an arrest made by the station
commander, who was outside the house, based on information of the
poseur-buyer after the purchase was made. Said case cited in U.S. v. Santos,
which justified a warrantless arrest on reasonable ground of suspicion
supported by circumstances strong in themselves as to warrant a reasonable
man in believing the accused to be guilty.
4) In People u. Saycon, warrantless arrest of debarking passenger from vessel
based on information was held valid.

Neither could the arrest effected six (6) days after the shooting be
reasonably regarded as effected when [the shooting had] ii fact just
been committed within the meaning of Section 5(b).

COMPARE: People v. Enrile Information by co-accused that Enrile gave him

the marijuana is invalid.

Moreover, none of the arresting officers had any personal knowledge of

facts indicating that petitioner was the gunman who had shot Maguan

In People v. Encinada, the court held that: "Raw intelligence information is

not a sufficient ground for a warrantless arrest."

The information upon which the police acted had been derived from
statements made by alleged eyewitness to the shooting one stated
that petitioner was the gunman; another was able to take down the
alleged gunman's car plate number which turned out to be registered in
petitioner's wife name.

However, in People v. Montilla (supra), the court observed that "although

information gathered and passed on by law enforcers are vague and piecemeal, and not as neatly and completely packaged as one would expect from
a professional spymaster, such tip-offs are sometimes sucessful as it proved
to be in the apprehension of appellant."

That information did not, however, constitute personal knowledge.

Personal Knowledge of Facts Based on Information Allowed

1) In People v. Madriaga, personal knowledge based on information of the coaccused pointing to accused as to source of marijuana, was held as valid.

5) In Sanchez v. Demetriou. The Warrantless arrest based on the sworn

statement of Centeno by an officer who had no personal knowledge is
unlawful but the defect was cured by the filing of charges and issuance of
warrant of arrest.
In People v. AcoZ, a group held up a passenger jeepney Policemen
immediately responded to the report of the crime. One of the victims saw
four persons walking towards Fort Bonifacio, one of whom was wearing his
jacket.

2) In People v. Gerente, the policemen arrested Gerente only some three (3)
hours after Gerente and his companions had killed Blace.

176

He pointed them to the policemen. When the group saw the policemen
coming, they ran in different directions.
Three were caught and arrested. Each was found in possession of an
unlicensed revolver and charged with illegal possession of firearms.
The accused claimed that the warrantless seizure of firearms was illegal. The
Court rejected their plea and held that the search was a valid incident of a
lawful arrest.

But if they do not strictly comply with the said conditions, the arresting officers
can be held liable for the crime of arbitrary detention, for damages under Article
32 of the Civil Code and/or for other administrative sanctions.
The same principle was stated in People u. Aruta.
Probable cause in these cases, must only be based on reasonable ground of
suspicion or belief that a crime has been committed or is about to be committed.
The foregoing standards were also adopted in warrantless "hot pursuit" arrest.

The subsequent search of accused-appellant's person and the seizure from

him of the firearm was likewise lawful.
Personal Knowledge of Facts Based on Reasonable Grounds of Suspicion Rule is now the
Rule

In its resolution denying the Motion for Reconsideration in the Umil v. Ramos
cases, the majority opinion explained the meaning of personal knowledge of
facts, as follows:
"It has been ruled that 'personal knowledge of facts,' in arrests without warrant must be
based upon probable cause, which means an actual belief or reasonable grounds of suspicion. (Subjective)
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. (Objective)
A reasonable suspicion therefore must be founded on probable cause, coupled with good
faith on the part of the peace officers making the arrest."

In ascertaining whether the arrest without warrant is conducted in accordance

with the conditions set forth in section 5, Rule 113, this Court determines not
whether the persons arrested are indeed guilty of committing the crime for
which they were arrested but whether they are probably guilty thereof.
Not evidence of guilt but "probable cause" is the reason that can validly compel
the peace officers in the performance of their duties and in the interest of public
order, to conduct an arrest without warrant.

Thus, in the 1999 case of People u. Doria, the Court en bane speaking thru Jusice
Reynato Puno wrote, "Personal knowledge" of facts arrests without warrant
under Section 5(b) of Rule 113 must be based upon "probable cause" which
means an "actual belief or reasonable grounds of suspicion" and reiterated the
rule in Umil v. Ramos.
In this case, accused-appellant Gaddao was arrested solely on the basis of the
alleged identification made by her co-accused.
P03 Manlangit, however, declared in his direct examination that appellant Doria
named his co-accused in response to his (P03 Manlangit's) query as to where the
marked money was, Appellant Doria did not point to appellant Gaddao as his
associate in the drug business, but as the person with whom he left the marked
bills.
This identification does not necessarily lead to the conclusion that appellant
Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may
have left the money in her house. With or without her knowledge, with or
without conspiracy.
Save for accused-appellant Doria's word, the Narcom agents had no reasonable
grounds to believe that she was engaged in drug pushing.
If there is no showing that the person who effected the warrantless arrest had, in
his own right, knowledge of facts implicating the person arrested to the
perpetration of a criminal offense, the arrest is legally objectionable.
Said the U.S. Supreme Court:

The Courts should not expect of law-enforcers more than what the law requires
of them.

"THE ARREST MUST STAND UPON A FIRMER GROUND THAN MERE

SUSPICION THOUGH THE ARRESTING OFFICER NEED NOT HAVE IN HAND
EVIDENCE WHICH WOULD SUFFICE TO CONVICT.

Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b)
thereof, even if the arrested persons are later found to be innocent and
acquitted, the arresting officers are not liable.

The quantum of information which constitutes probable cause or evidence which would
warrant a man of reasonable caution in the belief that a felony has been committed must
be measured by the facts of the particular case.

177

Probable cause may, however, not be established simply by showing that the
officer who made the challenged arrest or search subjectively believed that he
had grounds for his action. Good faith alone is not sufficient.
The probable cause test is an objective one.

In People v. Jay son, there was a shooting. The policemen summoned to the
scene of the crime and found the victim. Accused-appellant was pointed to them
as the assailant only moments after the shooting. In fact accused-appellant had
not gone very far (only ten meters away from the "lhaw-Ihaw"), although he was
then fleeing. The arresting officers thus acted on the basis of personal
knowledge of the death of the victim and of facts indicating that accusedappellant was the assailant. The court upheld the warrantless arrests as valid.

The mere subjective conclusion of a police concerning the existence of probable

cause is not binding in the court which must independently scrutinize the
objective facts to determine the existence of probable cause.
In doing so, however, the expertise of the officer are to be taken into account.

In another case, the police officers were informed that accused were repacking
drugs. Accompanied by an informer. They peeped first through the window
before they saw the activities of the suspects inside the room and entered the
house and arrested the suspects.

This is as it should be for there would be little merit in securing able trained men
to guard the public peace if their actions were to be measured by what might be
probable cause to untrained civilians.

The court held that the arrest, search and seizure were illegal.

A significantly lower quantum of proof is required to establish probable cause than guilt."

In assessing the conduct of the police officer, it is imperative that the facts be
judged against an objective standard.
The test is:
Would the facts available to the officer at the moment of the seizure or search
warrant a man of reasonable caution in the belief that the action taken was
appreciated.
Personal Knowledge of the Death of Victim and Facts Indicating that Accused Was the
Assailant

In People v. Tonog, the police found the lifeless body of a person with several
stab wounds. An informer pointed to the accused as the person who had killed
the victim. That afternoon, police officers arrested the accused. On their way to
the police station, a policeman noticed bloodstains on the accused's pants
which, when examined, was found to be the same blood type "0" found on the
fatal knife.
The Court upheld the warrantless arrest and ruled that the blood-stained pants,
having been seized as an incident of a lawful arrest, was admissible in evidence.
In People v. Gerente, the police arrested the accused three hours after the victim
had been killed. They went to the scene of the crime where they found a piece
of wood and a concrete hollow block used by the killers in bludgeoning the
victim to death. A neighbor of the accused who witnessed the killing, pointed to
him as one of the assailants. The warrantless arrest was held valid under Rule
113, Sec. 5(b).

They should have first conducted a surveillance considering that the activities
and identities of the suspects were already known and if there was probable
cause, they should have applied for a search warrant.
The court reiterated the seven (7) situations of a warrantless search and held
that the arrest, search and seizure do not fall on any of them.
ONLY COURTS COULD DECIDE THE QUESTION OF PROBABLE CAUSE
SINCE THE STUDENTS WERE NOT BEING ARRESTED IN FLA-GRANTE
DELICTO
In Posadas v. The Hon. Ombudsman, the NBI agents tried to effect an arrest four
days after commission of the crime and had no personal knowledge of any fact
which might indicate that the two students were probably guilty of the crime and
what they had were the supposed positive identification of two alleged eyewitnesses, the court held this is insufficient to justify the arrest without a warrant
by the NBI.
The Court distinguished the case from that of People v. Tonog, relied upon by the
prosecution to justify the arrest.
In Tonog, the accused voluntarily went upon invitation of the police officer who
later noticed the presence of blood stains on the pants of the accused.
Upon reaching the police station, the accused was asked to take off his pants for
examination at the crime laboratory.
The question in that case involved the admissibility of the maong pants taken
from the accused.
It is clear that Tonog does not apply to this case.
178

First, the accused in that case voluntarily went with the police upon the latter's
invitation.
Second, the arresting officer found blood stains an the pants of the accused, on
the basis of which he concluded that the accused probably committed the crime
for which reason the latter was taken into custody.
Third, the arrest was made on the same day the crime was committed.
In the words of Rule 113, Sec. 5(b), the crime had "just been committed" and the
arresting officer had "personal knowledge of the facts indicating that the person
to be arrested had committed it."

"It is important to note that unlike in the case of crimes like, e.g., homicide, murder,
physical injuries, robbery or rape which by their nature involve physical, optically
perceptible, overt acts, the defense of possessing or delivering or transporting some
prohibited or regulated drug is customarily carried out without any external signs or
indication visible to police officers and the rest of the outside world.
Drug "pushers" or couriers do not customarily go about their enterprise or trade with some
external visible sign advertising the fact that they are carrying or distributing or
transporting prohibited drugs.
Thus, the application of the rules in Section 5(a) and (b), Rule 133 of the Rules of Court
needs to take that circumstances into account.

The court reiterated the rule in People v. Doria (supra), that:

The Court has had to resolve the question of valid or invalid warrantless arrest or
warrantless search or seizure in such cases by determining the presence or absence of a
reasonable or probable cause, before that such a felony (possessing or transporting or
delivering prohibited drugs) was then in progress.

'"Personal knowledge' of facts in arrests without a warrant under Section 5(b) of Rule 113
must be based upon 'probable cause' which means an actual belief or reasonable grounds
of suspicion.

In Barros, the Court listed the kinds of causes which have been characterized as probable
or reasonable cause supporting the legality and validity of a warrantless search and a
warrantless arrest in cases of this type:

The grounds of suspension are reasonable when, 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.

"THIS COURT HAS IN THE PAST FOUND PROBABLE CAUSE TO CONDUCT

WITHOUT A JUDICIAL WARRANT AN EXTENSIVE SEARCH OF MOVING
VEHICLES IN SITUATIONS WHERE
(1) there had emanated from a package the distinctive smell of marijuana;
(2) agents of the Narcotics Command ("Narcom") of the Philippine National Police
("PNP") had received a confidential report from informers that a sizeable volume
of marijuana would be transported along the route where the search was
conducted;204
(3) Narcom agents were informed or "tipped off" by an undercover "deep penetration" agent that prohibited drugs would be brought into the country on a
particular airline flight on a given date;
(4) Narcom agents had received information that a Caucasian coming from Sagada,
Mountain Province, had in his possession prohibited drugs and when the Narcom
agents confronted the accused Caucasian, because of a conspicuous bulge in his
waistline, he failed to present his passport and other identification papers when
requested to do so; and
(5) Narcom agents had received confidential information that a woman having the
same physical appearance as that of the accused would be transporting
marijuana."

A reasonable suspicion therefore must be founded on probable cause, coupled with good
faith on the part of the peace officers making the arrest."

To allow the arrest which the NBI intended to make without warrant would in
effect allow them to supplant the courts.
The determination of the existence of probable cause that the persons to be
arrested committed the crime was for the judge to make.
The law authorities a police officer or even an ordinary citizen to arrest criminal
offenders only if the latter are committing or have just committed a crime.
Otherwise, we cannot leave to the police officers the determination of whom to
apprehend if we are to protect our civil liberties.
This is evident from a consideration of the requirements before a judge can
order the arrest of suspects. Art. Ill, Sec. 2 of the Constitution.
Rule in Drug Cases
The Supreme Court in People v. Saycon pointed out that:

Caution:

The government's drive against illegal drugs needs the support of every citizen.
But it should not undermine the fundamental rights of every citizen as enshrined
in the Constitution.
The constitutional guarantee against warrantless arrests and unreasonable
179

searches and seizures cannot be so carelessly disregarded as overzealous police

officers are sometimes wont to do.

SEC. 8.
Method of Arrest by Officer Without Warrant

Fealty to the constitution and the rights it guarantees should be paramount in

their minds, otherwise their good intentions will remain as such simply because
they have blundered.
The criminal goes free, if he must, but it is the law that sets him free.
Nothing can destroy a government more quickly than its failure to observe its
own laws, or worse, its disregard of the charter of its own existence.
Rule on Escapees
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 temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.
An officer may arrest without a warrant, a prisoner who has escaped from
custody after trial and commitment, and it has been held that even a private
person may without a warrant, arrest a convicted felon who has escaped and is
at large.
An officer may arrest without a warrant, a prisoner who has escaped from
custody after trial and commitment.
Even a private person may, without a warrant, arrest a convicted felon who has
escaped and is at large, since he might also, before conviction, have arrested
the felon.
Evasion of service of sentence; Arrest, without a warrant, principle applied.
Rule 113 of the Revised Rules of Court may be invoked in support of this
conclusion; for, under Section 6(c) thereof one of the instances when a person
may be validly arrested without warrant is where he has escaped from
confinement.
Undoubtedly, this right of arrest without a warrant is founded on the principle
that at the time of the arrest, the escapee is in the continuous act of committing
a crime evading the service of his sentence.
SEC. 6.
Time of Making Arrest

Duty of Arresting Officer

At the time a person is arrested, it shall be the duty of the arresting officer to
inform him of the reason for the arrest and he must be shown the warrant of
arrest, if any.
He shall be informed of his constitutional rights to remain silent and to counsel,
and that any statement he might make could be used against him.
The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if
possible or by letter or messenger.
It shall be the responsibility of the arresting officer to see to it that this is accom plished.
No custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, or by any person on his behalf, or
appointed by the court upon petition either of the detainee himself or by anyone
on his behalf.
The right to counsel may be waived but the waiver shall not be valid unless
made with the assistance of counsel.
Any statement obtained in violation of the procedure herein laid down, whether
exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.
Procedure, Guidelines and Duties of Arresting or Investigating Officer

Considering the heavy penalty of death and in order to ensure that the evidence
against an accused were obtained through lawful means, the Court as guardian
of the rights of the people, and in the light of the new legal developments, laid
down an updated procedure, guidelines and duties which the arresting,
detaining, inviting or investigating officer or his companions must do and
observe at the time of making arrest and again at and during the custodial
interrogation in accordance with the Constitution, jurisprudence and Republic
Act No. 7438:
a.

SEC. 7.
Method of Arrest by Officer by Virtue of Warrant
180

The person arrested, detained, invited or under custodial investigation must

be informed in a language known to and understood by him of the reason for
the arrest and must be shown the warrant of arrest, if any.

invoking it at any time during the process regardless of whether he may

have answered some questions or volunteered some statement; and

Every other warnings, information or communication must be in a language

known to and understood by said person;
k.
b.

He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;

c.

He must be informed that he has the right to be assisted at all times and
have the presence of an independent and competent lawyer, preferably of
his own choice;

d.

e.

f.

SEC. 10.
Officer may Summon Assistance
SEC. 11.
Right of Officer to Break into Building or Enclosure

That whether or not the person arrested has lawyer he must be informed
that no custodial investigation any form shall be conducted except in the
presence of his counsel or after a valid waiver has been made;

g.

He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly and intelligently and ensure that
he understood the same;

h.

In addition, if the person arrested waives his right to a lawyer, he must be

informed that it must be done in writing AND in the presence of counsel,
otherwise, he must be warned that the waiver is void even if he insist on his
waiver and chooses to speak;

i.

That the person must be informed that he may indicate in any manner at
any stage of the process that he does not wish to be questioned with
warning that once he makes such indication, the police may not interrogate
him if the same had not yet commenced or the interrogation must ceased
(sic) if it has already begun;

j.

SEC. 9.
Method of Arrest by Private Person

He must be informed that if he has no lawyer or cannot afford the services of

a lawyer, one will be provided for him, and that a lawyer may also be
engaged by any person in his behalf or may be appointed by the court upon
petition of the person arrested or one acting in his behalf;

The person arrested must be informed that at any time, he has the right to
communicate or confer by the most expedient means telephone, radio,
letter or messenger with his lawyer (either retained or appointed), any
member of his immediate family, or any medical doctor, priest or minister
chosen by him or any one from his immediate family or by counsel or be
visited or by conferences with duly accredited national or international nongovernmental organization. It shall be the responsibility of the officer to
ensure that this is accomplished;

The person arrested must be informed that his initial waiver of his right to
remain silent, the right to counsel or any of his rights does not bar him from

He must also be informed that any statement or evidence as the case may
be obtained in violation of any of the foregoing whether inculpatory or
exculpatory, in whole or in part shall be inadmissible in evidence.

SEC. 12.
Right to Break Out from Building or Enclosure
SEC. 13.
Arrest After Escape or Rescue
SEC. 14.
Right of Attorney or Relative to Visit Person arrested
Under Republic Act No. 7438:

"SECTION 2(B) ANY PUBLIC OFFICER OR EMPLOYEE, OR ANYONE ACTING UNDER HIS ORDER OR IN HIS PLACE, WHO ARRESTS, DETAINS OR
INVESTIGATES ANY PERSON FOR THE COMMISSION OF AN OFFENSE
SHALL INFORM THE LATTER, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT AND TO HAVE
COMPETENT AND INDEPENDENT COUNSEL, PREFERABLY OF HIS OWN
CHOICE, WHO SHALL AT ALL TIMES BE ALLOWED TO CONFER PRIVATELY
WITH THE PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION.
If such person cannot afford the services of his own counsel, he must be provided with a
competent and independent counsel by the investigating officer.
(a) Any person arrested or detained or under custodial investigation shall be allowed visits
by or conferences with any member of his immediate family, or any medical doctor or
priest or religious minister chosen by him or by any member of his immediate family or by
his counsel, or by any national non-governmental organization duly accredited by the
Commission on Human Rights or by any international non-governmental organization duly
accredited by the Office of the President.

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The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent
or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and
guardian or ward.

AS USED IN THIS ACT, "CUSTODIAL INVESTIGATION" SHALL INCLUDE THE

PRACTICE OF ISSUING AN "INVITATION" TO A PERSON WHO IS
INVESTIGATED IN CONNECTION WITH AN OFFENSE HE IS SUSPECTED TO
HAVE COMMITTED, WITHOUT PREJUDICE TO THE LIABILITY OF THE
"INVITING" OFFICER FOR ANY VIOLATION OF LAW.
SEC. 4 A) ANY ARRESTING PUBLIC OFFICER OR EMPLOYEE, OR ANY
INVESTIGATING OFFICER, WHO FAILS TO INFORM ANY PERSON
ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION OF HIS
RIGHT TO REMAIN SILENT AND TO HAVE COMPETENT AND
INDEPENDENT COUNSEL PREFERABLY OF HIS OWN CHOICE, SHALL
SUFFER A FINE OF SIX THOUSAND PESOS (P6,000.00) OR A PENALTY OF
IMPRISONMENT OF NOT LESS THAN EIGHT (8) YEARS BUT NOT MORE
THAN TEN (10) YEARS, OR BOTH.

THE PARENTS, ELDER BROTHERS AND SISTERS, HIS SPOUSE, THE

MUNICIPAL MAYOR, THE MUNICIPAL JUDGE, DISTRICT SCHOOL
SUPERVISOR, OR PRIEST OR MINISTER OF THE GOSPEL AS CHOSEN BY
HIM; OTHERWISE, SUCH EXTRAJUDICIAL CONFESSION SHALL BE
INADMISSIBLE AS EVIDENCE IN ANY PROCEEDING.
In other words, if there is a valid waiver, and the lawyer's presence is waived,
the confession must still be signed in the presence of any persons enumerated
above.
1. Application of Actual Force, Manual Touching of the Body, Physical
Restraint or a Formal Declaration of Arrest is Not Required
It is enough that there be an intent on the part of one of the parties to arrest
the other and intent on the part of the other to submit, under the belief and
impression that submission is necessary. 1
a.

The penalty of perpetual absolute disqualification shall also be imposed upon the
investigating officer who has been previously convicted of a similar offense.

A letter-invitation is equivalent to 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.

THE SAME PENALTIES SHALL BE IMPOSED UPON A PUBLIC OFFICER OR

EMPLOYEE, OR ANYONE ACTING UPON ORDERS OF SUCH INVESTIGATING
OFFICER OR IN HIS PLACE, WHO FAILS TO PROVIDE A COMPETENT AND
INDEPENDENT COUNSEL TO A PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION FOR THE COMMISSION OF AN OFFENSE IF
THE LATTER CANNOT AFFORD THE SERVICES OF HIS OWN COUNSEL.

b.

Under R.A. No. 7438, the requisites of a custodial interrogation are

applicable even to a person not formally arrested but merely invited for
questioning,

B) ANY PERSON WHO OBSTRUCTS, PREVENTS OR PROHIBITS ANY LAWYER, ANY MEMBER OF THE IMMEDIATE FAMILY OF A PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION, OR ANY MEDICAL
DOCTOR OR PRIEST OR RELIGIOUS MINISTER CHOSEN BY HIM OR BY
ANY MEMBER OF HIS IMMEDIATE FAMILY OR BY HIS COUNSEL, FROM
VISITING AND CONFERRING PRIVATELY WITH HIM, OR FROM EXAMINING
AND TREATING HIM, OR FROM MINISTERING TO HIS SPIRITUAL NEEDS,
AT ANY HOUR OF THE DAY OR, IN URGENT CASES, OF THE NIGHT SHALL
SUFFER THE PENALTY OF IMPRISONMENT OF NOT LESS THAN FOUR (4)
YEARS NOR MORE THAN SIX (6) YEARS, AND A FINE OF FOUR THOUSAND PESOS (P4,000.00).

2. Illegality of Arrest Does Not Render the Proceedings Void where No

timely Objection to the Irregularity is Made

UNDER SEC. 2(D), REPUBLIC ACT NO. 7348 ANY EXTRAJUDICIAL

CONFESION MADE BY A PERSON, ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION" (WHICH SHALL INCLUDE AN "INVITATION
FOR INVESTIGATION" SHALL BE IN WRITING AND SIGNED BY SUCH
PERSON IN THE PRESENCE OF HIS COUNSEL OR IN THE LATTER'S
ABSENCE, UPON A VALID WAIVER, AND IN THE PRESENCE OF ANY OF

When accused-appellant was arrested and a case was filed against him,
he pleaded not guilty upon arraignment, participated in the trial and
presented his evidence.

a.

See also People v. Macam3 for waiver of illegality of arrest.

A motion to quash should be filed.
The illegality of the arrest or the procedure in acquiring jurisdiction of
the person of an accused must be raised before plea.
[I]t is too late for appellant to raise the question of his arrest without a
warrant.

Appellant is thus estopped from questioning the legality of his arrest.

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It is well-settled that any objection involving a warrant of arrest or

procedure in the acquisition by the court of jurisdiction over the person
of an accused must be made before he enters his plea, otherwise the
objection is deemed waived.
Besides, this issue is being raised for the first time by appellant.
He did not move for the quashal of the information before the trial court
on this ground.
Consequently, any irregularity attendant to his arrest, if any, was cured
when he voluntarily submitted himself to the jurisdiction of the trial
court by entering a plea of not guilty and by participating in the trial.
Moreover, the illegal arrest of an accused is not sufficient cause for
setting aside a valid judgment rendered upon a sufficient complaint after
the trial free from error.
b.

Thus, the unlawfulness of an arrest does not affect the jurisdiction of the
Court.
In other words, the illegal arrest of an accused is not sufficient cause for
setting aside a valid judgment rendered upon a sufficient complaint after
trial free from error.

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