DEPARTMENT OF JUSTICE

National Prosecution Service

MANUAL FOR PROSECUTORS

RULES ON PROCEDURE IN THE

INVESTIGATION, PROSECUTION
AND TRIAL OF CRIMINAL CASES
PART I. PROSECUTION OF OFFENSES
SECTION 1. Criminal action. - A criminal action is one by which the
state prosecutes a person for an act or omission punishable by law. 1
SEC. 2. How and where commenced. - A criminal action is
commenced by the filing of a complaint with the City/Provincial
Prosecution Office or with the Municipal Trial Court or Municipal Circuit Trial
Court. However, a criminal action for an offense committed within Metro
Manila, may be commenced only by the filing of the complaint with the
Prosecutor's Office.
SEC. 3. Complaint. - A complaint is a sworn written statement
charging a person with an offense and subscribed by the offended party,
any peace officer or public officer charged with the enforcement of the law
violated.2
Sec. 3 (b), Rule 1, 1997 Rules of Civil Procedure.
Sec. 3, Rule 110, Rules on Criminal Procedure; Example of public officer charged with the
enforcement of the law violated: Bureau of
Customs officials for violation of the customs law; Bureau of Forest
Development officials for violation of forestry laws; chief of police of
a municipality for violation of a municipal ordinance which constitutes
a criminal offense.
1
2

The sworn complaint referred to usually refers to a complaint filed in court and not in the
prosecutor's office. It is not necessary to file a sworn complaint with the prosecutor before the
latter can conduct a preliminary investigation. A mere unsworn letter suffices to start an
investigation, except if the offense charged is one which cannot be prosecuted de oficio or is
private in nature i.e., where the law requires that it be started by a complaint sworn to by the
offended party.
In a case involving a private offense, the phrase "complaint filed by the offended party" as
used in Section 5, Rule 110 should be given a liberal or loose interpretation, meaning a
"charge, allegation, grievance or accusation" rather than a strict construction for often than
not the offended party who files it is unschooled in law The purpose of the complaint in
Section 5, Rule 110, is merely to initiate or commence the prosecution of the accused. Thus,
the "Sinumpaang Salaysay" of the victim of a private offense is already deemed a complaint"
required in the aforesaid Sec. 5. (People vs. Sangil, 208 SCRA 696 [1992]).

To discourage the filing of harassment charges, the prosecutor shall

warn the complainant that any false statement in the complaint may give
rise to a finding of a prima facie case for perjury before the same office.
SEC. 4. Offended party, defined. - The offended party is the person
against whom or against whose property the crime was committed. 3
SEC. 5. Information. - An information is the accusation in writing
charging a person with an offense, subscribed by the prosecutor, and filed
with the court. The information need not be placed under oath by the
prosecutor signing the same. The prosecutor must, however, certify under
oath that a)
he has examined the complainant and his
witnesses;
b)
there is reasonable ground to believe that a
crime has been committed and that the accused is probably
guilty thereof;
c)
the accused was informed of the complaint and
of the evidence submitted against him; and
d)
the accused was given an opportunity to submit
controverting evidence.4

SEC. 6. Sufficiency of complaint or information. - A complaint or

information t
shall be considered sufficient if it states a)
the name of the accused;
b)
the designation of the offense committed;
c)
the act or omission complained of;
d)
the name of the offended party;
e)
the approximate time of the commission of the
offense; and
f)
the place where the offense was committed.5
SEC. 7. Other essential matters to be alleged in complaint or
information. -The following shall also be alleged in a complaint or
information:
a)
every essential element O{ the offense;
b)
the criminal intent of the accused and its
relation to the act or omission complained of;
c)
all qualifying and generic aggravating
circumstances which are integral pans of the offense;
3
4

Sec. 12, par. 1, Rules on Criminal Procedure

Sec. 4, Rule 112, ibid.

5
Sec. 6, Rule 110, ibid.

d)
all matters that are essential to the constitution
of the offense, such as the ownership and/or value of
the property robbed or destroyed; the particular
knowledge to establish culpable intent; or the
particular intention that characterizes the offense;
e)
age of the minor accused, and whenever
applicable, the fact that he acted with discernment;
and
f)
age of the minor complainant, when age is
material.
SEC. 8. Additional contents of a complaint - In addition to the
matters listed above, a complaint or information shall contain a
certification that the recitals therein are true and correct and not in the
nature of a countercharge to avoid conflict in the appreciation of the facts
and evidence.
SEC. 9. Name of accused. - The complaint or information shall state
the name and surname of the accused, if known, or any appellation or
nickname by which he -has been or is known. If his name is not known, the
accused shall be mentioned under a fictitious name such as "John Doe' 1 or
"Jane Doe."
SEC. 10. Designation of offense. - To properly inform the accused of
the nature and cause of the accusation against him, the complaint or
information shall state, whenever possible, a)

the designation given to the offense by the statute;

b)

the statement of the act or omission constituting the same, and if

there is no such designation, reference shall be made to the
section or subsection of the law punishing it.6

SEC. 11. Cause of accusation. - The act or omission complained of

as constituting the offense shall be stated in an ordinary and concise
language without repetition. The statement need not use the terms of the
statute defining the offense so long as a person of common understanding
is able to know what offense was intended to be charged and to enable
the court to pronounce proper judgment. 7

SEC. 12. Place of the commission of offense. - The complaint

or information is sufficient if it states that the crime charged was
committed or some of the ingredients thereof occurred at some
place within the jurisdiction of the court, unless the particular place
in which the crime was committed is an essential element of the
crime e.g. in a prosecution for violation of the provision of the
Election Code which punishes the carrying of a deadly weapon in a
t'polling place ", or if it is necessary to identify the offense charged
6
7

Sec. 8, ibid.
Sec. 9, ibid.

e.g., the domicile in the offense of "violation of domicile."

SEC. 13. Time of commission of offense. - The precise time of the

commission of the offense shall be stated in the complaint or information
if time is a material ingredient of the offense e.g. ,treason, infanticide.
Otherwise, it is sufficient that it be alleged that the offense was committed
at any time as near to the actual date at which the offense was
committed.9
SEC. 14. Title of complaint or information. - The title of the
complaint or information shall be in the name of the "People of the
Philippines" as Plaintiff against all persons who appear to be responsible
for the offense involved.10
SEC. 15. Contents of caption of an information. - The caption of an
information shall, in addition to the name of the Plaintiff, indicate the
following:
a) the complete names i.e., given name, maternal name, surname,
and addresses, of all the accused. In the case of accused minors, their age
shall be indicated in the caption;
b) the case number; and
c) the offense charged. The denomination of the offense and the
specific law and provision violated shall be specified.
SEC. 16. List of prosecution witnesses. - The information shall
contain the complete names and addresses of all identified witnesses for
the prosecution. In cases for violation of B. P. Blg. 22 and estafa cases, the
list of witnesses shall include the complainant, the bank representative
with specific reference to the check and account numbers involved and in
the proper cases, the company auditor; and in physical injuries cases, the
attending physician with specific reference to the medical report and date
of the incident.
SEC. 17. Number of offenses charged. - A complaint or information
shall charge only one offense so as not to confuse the accused in his
defense, except in those cases in which existing laws prescribe a single
punishment for various offenses, e.g., complex crimes under Article 48 of
the Revised Penal Code.11
8

Sec. 10, ibid.

9.Sec. 11, ibid. Sec. 2, ibid.

10

11

Sec. 2, ibid.
Sec. 13, ibid; " Penalty for complex crimes. - 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

SEC. 18. Amendment of information or complaint. - An information

or complaint may be amended before the accused pleads, after the
accused has pleaded, and during the trial.
Before plea, amendment of the information or complaint, in
substance or form, is a matter of right.
After plea and during trial, amendment may be made only with
leave of court and only as to matters of form wherein the same can be
done without prejudice to the rights of the accused.
At any time before judgment, if there has been a mistake 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 11,12 provided the accused would not
be placed thereby in double jeopardy. The court may also require the
witnesses to give bail for their appearance at the trial. 13
SEC. 19. Mistake inform and substance. - A mistake in form refers to
clerical errors, matters which are not essential to the charge, and those
which will not mislead or prejudice the accused as when a defense under
the original information can be used after the amendment is made and
any evidence that the accused may have would be equally applicable to
the one form as in the other.
A mistake in substance is any omission or misstatement which
prevents an information from showing on its face that an offense has been
committed, or from showing what offense is intended to be charged. 14
SEC. 20. How Period of Prescription Computed and Interrupted. For an offense penalized under the Revised Penal Code, the period of
prescription commences to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and
shall be interrupted:
a)

by the filing of the complaint with the Office of the City/Provincial

same to be applied in its maximum period". (An. 48, Revised Penal Code).

"when mistake has teen made in charging the proper offense. - 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 charged, or of any offense necessarily included
therein, the accused shall not be discharged, if there appears to be good cause to detain him.
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 information."
12

13

14

Sec. 14, Rule 110, ibid.

42 C.J.S.,Sec. 240 at pp.1249-1250.

Prosecutor;15 or wit the Office of the Ombudsman;16 or

b)
by the filing of the complaint or information with the court even if it
is merely for purposes of preliminary examination or investigation, or even
if the court where the complaint or information is filed cannot try the case
on its merits.17
However, for an offense covered by the Rules on Summary
Procedure, the period of prescription is interrupted only by the filing of the
complaint or information in court.18
The prescription of an offense filed before the Prosecutor or
Ombudsman shall commence to run again when such proceedings
terminate; while the prescription of an offense filed in court starts to run
again when the proceedings terminate without the accused being
convicted or acquitted or are unjustifiably stopped for any reason not
imputable to the accused.19
For violation of a special law or ordinance, the period of prescription shall
commence to run from the day of the commission of the violation, and if the same
is not known at the time, from the discovery and the institution of judicial
proceedings for its investigation and punishment. The prescription shall be
interrupted only by the filing of the complaint or information in court and shall
begin to run again if the proceedings are dismissed for reasons not constituting
double jeopardy.20

For cases falling within the jurisdiction of the Katarungang

Pambarangay, the period of prescription is likewise interrupted by the
filing of the complaint with the punong barangay; but shall resume to run
again upon receipt by the complainant of the certificate of repudiation or
of the certification to file action issued by the lupon or pangkat secretary;
Provided, however, That such interruption shall not exceed sixty (60) days
from the filing of the complaint with the punong barangay. 21
22

Prescription shall not run when the offender is absent from the
15

Sec. 1, par. 2, Rule 110, Rules on Criminal Procedure.

16

Llenes vs. Dicdican, 260 SCRA 207 (1996).

17

Ibid.

18

Ibid.

19

An. 91 Revised Penal Code.

20
21

Sec. 2, Act No.3326, as amended.

Sec. 40 par.,Local Govt. Code.

country.22
In cases where the imposable penalty is imprisonment and/or a fine, the
greater penalty shall be the basis for the computation of prescription.

PART II. INQUEST23

SECTION 1. Concept. - Inquest is an informal and summary
investigation conducted by a public prosecutor in criminal cases involving
persons arrested and detained without the benefit of a warrant of arrest
issued by the court for the purpose of determining whether or not said
persons should remain under custody and correspondingly be charged in
court.
SEC. 2. Designation of In quest Officer. The City or Provincial
Prosecutor shall designate the Prosecutors assigned to inquest duties and
shall furnish the Philippine National Police (PNP) a list of their names and
their schedule of assignments. If, however, there is only one Prosecutor in
the area, all inquest eases shall be referred to him for appropriate action.
Unless otherwise directed by the City or Provincial Prosecutor, those
assigned to inquest duties shall discharge their functions during the hours
of their designated assignments and only at the police
stations/headquarters of the PNP in order to expedite and facilitate the
disposition of inquest eases.
SEC. 3. Commencement and termination of inquest.- The inquest
proceedings shall be considered commenced upon receipt by the Inquest
Officer from the law enforcement authorities of the complaint/referral
documents which should include:
a)
b)
c)
d)

the affidavit of arrest;

the investigation report;
the statement of the complainant and witnesses; and
other supporting evidence gathered by the police in
the course of the latter's investigation of the criminal
incident involving the arrested or detained person.

The Inquest Officer shall, as far as practicable, cause the affidavit of

arrest and statements/affidavits of the complainant and the witnesses to
be subscribed and sworn to before him by the arresting officer and the
affiants.
The inquest proceedings must be terminated within the period
prescribed under the provisions of Article 125 of the Revised Penal Code,
22

Art. 91, par. 2, Revised Penal Code.

23

Department of Justice Circular No.61 dated 21 December 1993.

as amended.24
SEC. 4. Documents required in specific cases. - The Inquest Officer
shall, as far as practicable, require the submission/presentation of the
documents listed below, to wit:

Murder, Homicide and Parricide

a)
certified true/machine copy of the certificate of death of the
victim; and

b)
necropsy report and the certificate of post-mortem
examination, if readily available.
Frustrated or Attempted Homicide, Murder, Parricide and Physical Injuries
a)
medical certificate of the complaining witness showing
the nature or extent of the injury;
b)
certification or statement as to duration of the
treatment or medical attendance; and
c)
certificate or statement as to duration of incapacity for
work.
Violation of the Dangerous Drugs Law (R.A. No.6425, as amended)
a)
chemistry report or certificate of laboratory
examination duly signed by the forensic chemist or other duly
authorized officer. If the foregoing documents are not
available, the Inquest Officer may temporarily rely on the field
test results on the seized drug, as attested to by a PNP
Narcotics Command operative or other competent person, in
which event, the Inquest Officer shall direct the arresting
officer to immediately forward the seized drug to the crime
laboratory for expert testing and to submit to the prosecutor's
office the final forensic chemistry report within five (5) days
from the date of the inquest;
b)
machine copy or photograph of the buy-bust money;
and
c)
affidavit of the poseur-buyer, if any.
Theft and Robbery, Violation of the Anti-Piracy and Anti-Highway Robbery
Law (P.D. No.532) and Violation of the Anti-Fencing Law (P.D. No.1612)
a) a list/inventory of the articles and items subject of the
offense; and b) statement of their respective values.

24

12 Hours for light offenses; 18 hours for less grave offenses; and 36 hours for grave

offenses.

Rape, Seduction and Forcible Abduction with Rape

a)
the medico-legal report (living case report), if the victim
submitted herself for medical or physical examination.
Violation of the Anti-Carnapping Law (R.A. No.6539)
a)
machine copy of the certificate of motor vehicle
registration;
b)
machine copy of the current official receipt of payment of
theregistration fees of the subject motor vehicle; and
c)
other evidence of ownership.
Violation of the Anti-Cattle Rustling Law (P.D. No.533)
a)
and
b)

machine copy of the cattle certificate of registration;

photograph of the cattle, if readily available.

Violation of Illegal Gambling Law (P.D. No.1602)

a)
b)

gambling paraphernalia; and

cash money, if any.

Illegal Possession of Explosives (P.D. No.1866)

a)
and
b)

chemistry report duly signed by the forensic chemist;

photograph of the explosives, if readily available.

Violation of the Fisheries Law (P.9. No.704)

a)
photograph of the confiscated fish, if readily available;
and
b)
certification of the Bureau of Fisheries and Aquatic
Resources.
Violation of the Forestry Law (P.9. No.705)
a)
scale sheets containing the volume and species of the
forest products confiscated, number of pieces and other
important details such as estimated value of the products
confiscated;
b)
certification of Department of Environment and
Natural Resources/Bureau of Forest Management; and
c)
seizure receipt.
The submission of the foregoing documents shall not be absolutely
required if there are other forms of evidence submitted which will

sufficiently establish the facts sought to be proved by the foregoing

documents.
SEC. 5. Incomplete documents. - When the documents presented
are not complete to establish probable cause, the Inquest Officer shall
direct the law enforcement agency to submit the required evidence within
the period prescribed under the provisions of Article 125 of the Revised
Penal Code, as amended.25 Otherwise, the Inquest Officer shall order the
release of the detained person26 and, where the inquest is conducted
outside of office hours, direct the law enforcement agency concerned to
file the case with the City or Provincial Prosecutor for appropriate action.
SEC. 6. Presence of detained person. - The presence of the detained
person who is under custody shall be ensured during the proceedings.
However, the production of the detained person before the Inquest
Officer may be dispensed with in the following cases:
a)
b)
c)
d)

if he is confined in a hospital;
if he is detained in a place under maximum security;
if production of the detained person will involve security
risks; or
if the presence of the detained person is not feasible by
reason of age, health, sex and other similar factors.

The absence of the detained person by reason of any of the

foregoing factors shall be noted by the Inquest Officer and reflected in the
record of the case.
SEC. 7. Charges and counter-charges.- All charges and countercharges arising from the same incident shall, as far as practicable, be
consolidated and inquested jointly to avoid contradictory or inconsistent
dispositions.
SEC. 8. Initial duty of Inquest Officer. - The Inquest Officer shall first
determine if the arrest of the detained person was made in accordance
with paragraphs
(a)
and (b) of Section 5, Rule 113 of the 1985 Rules on Criminal
Procedure, as amended, which provide that arrests without a warrant may
be effected:27
25

NPS Form No.1.

26

NPS Form No.2.

Go vs. Court of Appeals, 206 SCRA 138 [1992]; Umil, et.al. vs. Ramos, 202 SCRA 251
[1991] and companion cases People vs. Malmstedt, 198 SCRA 401 and People vs. Aminudin,
163 SCRA 402 [1988].
27

a)

b)

when, in the presence of the arresting officer, the person to

be arrested has committed, is actually committing, or is
attempting to commit an offense; or
when an offense has in fact just been committed, and the
arresting officer has personal knowledge of facts indicating
that the person to be arrested has committed it.

For this purpose, the Inquest Officer may summarily examine the
arresting officers on the circumstances surrounding the arrest or
apprehension of the detained person.
SEC. 9. where arrest not properly effected. - Should the Inquest
Officer find that the arrest was not made in accordance with the Rules, he
shall;
a)
b)
c)

recommend the release of the person arrested or detained;

note down the disposition on the referral document;
prepare a brief memorandum indicating the reasons for the
action taken; and

d)

forward the same, together with the record of the case, to the City
or Provincial Prosecutor for appropriate action.

Where the recommendation for the release of the detained person is

approved by the City or Provincial Prosecutor but the evidence on hand
warrants the conduct of a regular preliminary investigation, the order of
release shall be served on the officer having custody of said detainee and
shall direct the said officer to serve upon the detainee the subpoena or
notice of preliminary investigation, together with the copies of the charge
sheet or complaint, affidavits or sworn statements of the complainant and
his witnesses and other supporting evidence. 28
SEC. 10. where arrest properly effected. - Should the inquest Officer
find that the arrest was properly effected, the detained person shall be
asked if he desires to avail himself of a preliminary investigation and, if he
does, he shall be made to execute a waiver of the provisions of Article 125
of the Revised Penal Code, as amended29, with the assistance of a lawyer
and, in case of non-availability of a lawyer, a responsible person of his
choice.30 The preliminary investigation may be conducted by the Inquest
28

See NPS Form No.2.

29

See NPS Form No.3.

30

Such responsible person may be a parent, elder brother or sister, spouse, the municipal mayor, the

municipal judge, district school supervisor, or priest/minister of the gospel as chosen by him (Sec. 2 (d)
RA 7438, An Act Defining Rights of Person Arrested, Detained or under Custodial Investigation)

Officer himself or by any other Assistant Prosecutor to whom the case may
be assigned by the City or Provincial Prosecutor, which investigation shall
be terminated within fifteen (15) days from its inception.
9

SEC. 11. Inquest preliminary investigation Inquest Officer shall

statements/affidavits of evidence submitted to him.
proper.- Where the detained person does not opt for a or otherwise
refuses to execute the required waiver, the proceed with the inquest by
examining the sworn the complainant and the witnesses and other
supporting
If necessary, the Inquest Officer shall require the presence of the
complaining witnesses and subject them to an informal and summary
investigation or examination for purposes of determining the existence of
probable cause.
SEC. 12. Meaning of probable cause.- Probable cause exists when
the evidence submitted to the Inquest Officer engenders a well-founded
belief that a crime has been committed and that the arrested Or detained
person is probably guilty thereof.
SEC. 13. Presence of probable cause.- If the Inquest Officer finds
that probable cause exists, he shall forthwith prepare the
corresponding complaint/information with the recommendation that the
same be filed in court. The complaint/information shall indicate the offense
committed and the amount of bail recommended, if bailable.
Thereafter, the record of the case, together with the prepared
complaint/information, shall be forwarded to the City or Provincial
Prosecutor for appropriate action.
The complaint/information may be filed by the Inquest Officer
himself or by any other Assistant Prosecutor to whom the case may be
assigned by the City or Provincial Prosecutor.
SEC. 14. Contents of Information.- The information shall, among
others,
contain:
a)

b)

31

a certification by the filing Prosecutor that he is filing the

same in accordance with the provisions of Section 7, Rule
112, Rules on Criminal Procedure, in cases cognizable by the
Regional Trial Court;31
the full name and aliases, if any, and address of the accused;

NPS Form No.2.

c)
d)
e)
f)
g)
h)

the place where the accused is actually detained;

the full names and addresses of the complainant and
witnesses;
a detailed description of the recovered items, if any;
the full name and address of the evidence custodian;
the age and date of birth of the complainant or the accused,
if eighteen (18) years of age or below; and
the full names and addresses of the parents, custodians or
guardians of the minor complainant or accused, as the case
may be.

SEC. 15. Absence of probable cause.- If the Inquest Officer finds no

probable cause, he shall:
a)
b)
c)
d)

recommend the release of the arrested or detained person; 32

note down his disposition on the referral document;
prepare a brief memorandum indicating the reasons for the
action taken; and
forthwith forward the record of the case to the City or
Provincial Prosecutor for appropriate action.

If the recommendation of the Inquest Officer for the release of the

arrested or detained person is approved, the order of release shall be
served on the officer having custody of the said detainee.
Should the City or Provincial Prosecutor disapprove the
recommendation of release, the arrested or detained person shall remain
under custody, and the corresponding complaint/information shall be filed
by the City or Provincial Prosecutor or by any Assistant Prosecutor to
whom the case may be assigned.
SEC. 16. Presence at crime scene. - Whenever a dead body is found
and there is reason to believe that the death resulted from foul play, or
from the unlawful acts or omissions of other persons and such fact has
been brought to his attention, the Inquest Officer shall:
a)

forthwith proceed to the crime scene or place of discovery of the

dead person;

b)

cause an immediate autopsy to be conducted by the

appropriate medico-legal officer in the locality or the PNP
medico-legal division or the NBI medico-legal office, as the
case may be;
direct the police investigator to cause the taking of
photographs of the crime scene or place of discovery of the
dead body;
supervise the investigation to be conducted by the police
authorities as well as the recovery of all articles and pieces of

c)

d)

32

NPS Form No.4.

e)

evidence found thereat and see to it that the same are

safeguarded and the chain of the custody thereof properly
recorded; and
submit a written report of his finding to the City or Provincial
Prosecutor for appropriate action.

SEC. 17. Sandiganbayan cases.- Should any complaint cognizable by

the Sandiganbayan be referred to an Inquest Officer for investigation, the
latter shall, after conducting the corresponding inquest proceeding,
forthwith forward the complete record to the City or Provincial Prosecutor
for appropriate action.
SEC. 18. Recovered articles.- The Inquest Officer shall see to it that
all articles recovered by the police at the time of the arrest or
apprehension of the detained person are physically inventoried, checked
and accounted for with the issuance of corresponding receipts by the
police officer/investigator concerned.
The said articles must be properly deposited with the police
evidence custodian and not with the police investigator.
The Inquest Officer shall ensure that the items recovered are duly
safeguarded and the chain of custody is properly recorded.
SEC. 19. Release of recovered articles.- The Inquest Officer shall,
with the prior approval of the City or Provincial Prosecutor or his duly
authorized representative, order the release 33 of recovered articles to their
lawful owner or possessor, subject to the conditions that:
a)
b)
c)
d)

e)

f)

there is a written request for their release; 34

the person requesting the release of said articles is shown to
be the lawful owner or possessor thereof;
the requesting party undertakes under oath to produce said
articles before the court when so required;
the requesting party, if he is a material witness to the case,
affirms or reaffirms his statement concerning the case and
undertakes under oath to appear and testify before the court
when so required;
the said articles are not the instruments, or tools in the
commission of the offense charged nor the proceeds thereof;
and
photographs of said articles are first taken and duly certified
to by the

police evidence custodian as accurately representing the evidence in his custody.

33

See NPS Form No.5.

34

See NPS Form No.6.

PART III. PRELIMINARY INVESTIGATION

SECTION 1. Concept of preliminary investigation - A preliminary
investigation is an inquiry or proceeding to determine whether there is
sufficient ground to engender a well founded belief that a crime
cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof and should be held for trial. 35
A preliminary investigation is essentially a judicial inquiry since
there is the opportunity to be heard, the production and weighing of
evidence, and a decision rendered on the basis of such evidence. In this
sense, the investigating prosecutor is a quasi-judicial officer. 36
SEC. 2. Purpose of preliminary investigation. - A preliminary
investigation is intended:
a)

b)

to secure the innocent against hasty, malicious and

oppressive prosecution and to protect him from an open and
public accusation of a crime and from the trouble, expense
and anxiety of a public trial;37 and
to protect the State from having to conduct useless and
expensive trials.38

SEC. 3. Nature of preliminary investigation. - The conduct of a

preliminary investigation is a substantive right which the accused may
invoke prior to or at least at the time of plea, the deprivation of which
would be a denial of his right to due process.
SEC. 4. Effect of amendment of information. - In case an information
is amended, a new preliminary investigation shall be conducted if the
amended charge is not related to the crime originally charged; if there is a
change in the nature of the crime charged; or if the information on its face
is null and void for lack of authority to file the same.
SEC. 5. where right of preliminary investigation may he invoked. The right to a preliminary investigation may be invoked only in cases
35

Section 1, Rule 112, Rules on Criminal Procedure.

36

Cruz, Jr. vs. People, 233 SCRA 439 [1994].

People vs. Poculan, 167 SCRA 176 [1988]; Rodis, Sr. vs.
Sandiganbayan, Second Division, 166 SCRA 618 [19881; Salonga vs.
Pano, 134 SCRA 438 [1985]; Trocio vs. Manta, 118 SCRA 241
[1982]; Sausi vs. Querubin, 62 SCRA 155 [1975]; and Hashim vs.
Boncan, 71 Phil. 216 [1941].
38
Tandoc vs. Resultan, 175 SCRA 37 [1989].
37

cognizable by the Regional Trial Court. The right is not available in cases
triable by inferior courts.
SEC. 6. Officers Authorized to Conduct Preliminary Investigation. The following may conduct a preliminary investigation; 39
a)
b)
c)
d)

Provincial or City Prosecutors and their assistants;

Judges of Municipal Trial Courts and Municipal Circuit Trial
Courts;
National and Regional State Prosecutors; and
Other officers as may be authorized by law. 40

Their authority to conduct preliminary investigation shall include all

crimes cognizable by the proper court in their respective territorial
jurisdiction.41
SEC. 7. Commencement of Preliminary Investigation.- A preliminary
investigation proceeding is commenced:
a)

b)
c)

d)
e)

by the filing of a complaint by the offended party or any

competent person842 directly with the Office of the
Investigating Prosecutor or Judge;
by referral from or upon request of the law enforcement
agency that investigated a criminal incident;
upon request of a person arrested or detained pursuant to a
warrantless arrest who executes a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended;
by order or upon directive of the court or other competent
authority; or
for election offenses, upon the initiative of the Commission on
Elections, or upon written complaint by any citizen,
candidate, registered political party, coalition of registered
parties or organizations under the party-list system or any
accredited citizen arm of the Commission on Elections. 43

SEC. 8. Complaint. - For purposes of preliminary investigation, the

complaint filed with the prosecutor's office shall, as far as practicable, be
accompanied or covered by an Information Sheet and shall state, among
others Par. 1, Sec. 2, Rule 112, supra.

39

The Special Prosecution Officers and Graft Investigation Officers in

cases cognizable by the Office of the Ombudsman and the COMELEC
officials in cases involving violations of the Election Code, PCGG Officers
41
Par. 2, Section 2, Rule 112, supra.
40

42

Ebarle vs. Sucaldito, 156 SCRA 803 [1987].

43

Sections 3 & 5, Rule 34, COMELEC Rules of Procedure.

a)
b)
c)
d)

the full and complete names and exact home, office or postal
addresses of the complainant and his witnesses;
The full and complete name and exact home, office or postal
address of the respondent;
The offense charged and the place and exact date and time
of its commission; and
Whether or not there exists a related case and, if so, the
docket number of said case and the name of the
Investigating Prosecutor thereof.

SEC. 9. Supporting affidavits.- The complaint shall be accompanied by the

affidavits of the complainant and his witnesses, as well as other supporting proofs
or documents, if any. The affidavits shall be sworn to before a Provincial, City or
State Prosecutor, or other government official authorized to administer oaths 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.44
When the preliminary investigation is commenced by referral from or upon
request of the law enforcement agency that investigated the incident, the
affidavits of the complainant and his witnesses to be submitted by the said
agency shall consist of the original or duplicate original or certified machine
copies thereof.
SEC. 10. Number of copies of affidavits. - The complaint and supporting
affidavits shall be in such number of copies as there are respondents, plus four (4)
copies for the court/official file.
Where a complaint charges multiple offenses which cannot be the subject
of one indictment or information, the complainant may be required to submit such
additional copies of the complaint and supporting affidavits as there are offenses
charged in the complaint.
SEC. 11. Barangay certification . - If the offense charged is punishable by
imprisonment not exceeding one (1) year or a fine not exceeding Five Thousand
Pesos (5,000.00) and the parties to the case are all residents of the same city or
municipality, the complaint shall be accompanied by the certification required
under Section 412 (a) of R.A. Act No.7160, "The Local Government Code of 1991. 45
SEC. 12. Lack of harangay certification.- The absence of a barangay
certification shall not be a ground for the dismissal of the complaint. The
Investigating Prosecutor shall, however, make the corresponding referral of the
complaint to the proper Lupong Tagapamayapa for appropriate action pursuant to
44

45

Sec. 3(a), Rule 112, Rules on Criminal Procedure.

See Appendix "0", List of Offenses cognizable by the Lupong Tagapamayapa (Crimes
Covered by the Katarungang Pambarangay).

the provisions of Chapter 7, Book III of R.A. No.7160. In connection therewith, the
complainant may be summoned for the purpose of delivering the referral to the
Chairman of the appropriate barangay and to secure the necessary certification
within thirty (30) days.
In any of the following cases. the Investigating Prosecutor shall proceed to
take cognizance of the complaint for purposes of preliminary investigation 46 even
if there is no Barangay Certification:
a)

b)
c)

where the respondent is under detention; or

where the respondent has been deprived of personal liberty calling
for habeas corpus proceedings; or
where the case may be barred by the Statute of Limitations.

SEC. 13. Initial/ action on the Complaint.- Within ten (10) days after the
filing of the complaint, the Investigating Prosecutor shall either dismiss the same
if he finds no ground to continue with the inquiry, or issue a subpoena to the
respondent, attaching thereto a copy of the complaint together with the affidavits
of witnesses and other supporting documents. 47
9

SEC. 14. Dismissal of complaint. - The following, among others,

shall constitute sufficient basis for the outright dismissal of a complaint:
a)

b)
c)
d)

e)

that the offense charged in the complaint was committed

outside the territorial jurisdiction of the Office of the
Investigating Officer;48
that, at the time of the filing of the complaint, the offense
charged therein had already prescribed;
that the complainant is not authorized under the provisions of
pertinent laws to file the complaint;
that the acts and/or omissions alleged in the complaint
and/or the supporting affidavits do not sufficiently show that
a criminal offense or violation of a penal law has been
committed; or
that the complaint and the supporting affidavits are unsigned
and/or have not been duly subscribed and sworn to as
prescribed under the Rules on Criminal Procedure.

SEC. 15. Personal service of documents by investigating prosecutor.

-Whenever circumstances warrant and to prevent the loss of documents in
the course of the service of a subpoena through ordinary modes, the
46

Sec. 412(b), R.A. No.7160.

47

Section 3(b), Rule 112, Rules of Criminal Procedure.

The resolution of dismissal should include a statement that the entire record of the case is
being forwarded to the office having jurisdiction over the same.
48

Investigating Prosecutor may require the respondent or other parties to

appear before him on a designated date, time and place and then and
there personally furnish them with copies of the complaint, supporting
affidavits and other documents.
At the said or any other setting, the respondent shall have the right
to examine all other evidence submitted by the complainant.
Failure on the part of the respondent or his counsel/representative to
appear before the Investigating Prosecutor to obtain copies of the
complaint, supporting affidavits and other documents despite receipt of
notice or subpoena shall be considered a waiver or forfeiture of
respondent9s right to be furnished copies of the complaint, supporting
affidavits and other documents, as well as to examine all other evidence
submitted by the complainant.
For the purposes specified in the first paragraph hereof, the
Investigating Prosecutor shall not require the appearance before him of
the respondent or other parties who are residing in distant places. In such
cases, the Investigating Prosecutor shall issue and send the subpoena,
together with copies of the complaint, supporting affidavit and other
documents, by registered special delivery mail with return card.
SEC. 16. Service of subpoena in preliminary investigation. - To
expedite the conduct of a preliminary investigation, the following
guidelines shall be observed in the service of subpoenasa)

b)

Service of subpoena and all papers/documents required to be

attached a
thereto shall be b'~- personal service by regular process
servers. In their
Absence, the cooperation of the Provincial City/Municipal
Station Commanders of the Philippine National Police (PNP)
may be requested for the purpose.
Under other circumstances, where personal service cannot be
effected but the respondent cannot be considered as
incapable of being subpoenaed as when he continues to
reside at his known address but the return states that he "has
left his residence and his return is uncertain" or words of
similar import, service of subpoena and its attachments shall
be effected by registered mail with return card at
respondent's known home/office address. On the face of the
envelope shall be indicated
I. the name and return address of the sender 1
and the
Typewritten/printed phrase "First
Notice Made on______________", thus instructing
the postmaster/postal
employee of the necessity of informing the
sender of the date the first notice was made on

the addressee; and

ii.the typewritten/printed request: "If not
claimed within
five (5) days from first notice, please return to
sender."
c)

Upon receipt of the unclaimed/returned envelope, the

Investigating Prosecutor may then proceed to resolve the
complaint on the basis of the evidence presented by the
complainant.49

SEC. 17. where Respondent cannot he subpoenaed - If a respondent

cannot be subpoenaed, as, for instance, he transferred residence without
leaving any forwarding address, the Investigating Prosecutor shall base his
resolution on the evidence presented by the complainant.
SEC. 18. Counter-Affidavits.- In cases where the respondent is
subpoenaed, he shall within ten (10) days from receipt of the complaint
and other documents, submit his counter-affidavit and other supporting
documents which shall be sworn to and certified as prescribed in the
second sentence of par. 1 of Section 9 this Part, copies of which shall be
furnished by the respondent to the complainant. 50
Only a counter-affidavit subscribed and sworn to by the respondent before
the Public Prosecutor can dispute or put at issue the allegations in the complaint.
A memorandum, manifestation or motion to dismiss signed by the counsel cannot
take the place of a counter-affidavit. Thus, a respondent relying on the
manifestation, memorandum or motion to dismiss of his counsel is deemed to
have not controverted complainant's evidence. 51

However, if such memorandum, manifestation or motion to dismiss is

verified by the respondent himself, the same may be considered a
counter-affidavit.
SEC. 19. Motion for dismissal of bill of particulars.-The filing of a
motion for the dismissal of the complaint or for the submission of a bill of
particulars shall not suspend or interrupt the running of the period for the
submission of counter-affidavits and other supporting documents.
49

50

51

Sec 3(d), Rule 112, Rules on Criminal Procedure; Department of Justice

Memorandum Circular No.25 dated 2 October 1989.
Secs. 3(b) & (c), Rule 112, supra.
DOJ Resolution No.109, Series of 1990. (I. S. NO.89-243, "Bulacan Garden Corporation

vs. Filomena", OPP, Bulacan).

All the grounds for the dismissal of the complaint, as well as

objections to the sufficiency thereof, shall be alleged or incorporated in
the counter-affidavit and shall be resolved by the Investigating Prosecutor
jointly on the merits of the case.
The Investigating Prosecutor may grant a motion to dismiss filed by
a respondent who is yet to file or has not filed his counter-affidavit if the
said motion is verified and satisfactorily establishes, among others:
a)
the circumstances specified in sub-paragraphs (a), (b) 9
(c) and (d) and (e) of Section 14 of this Part;
b)
the fact that the complaint, or one similar thereto or
identical therewith, has previously been filed with the Office
and has been fully adjudicated upon on the merits after due
preliminary investigation proceedings; or
c)
the extinction of respondentts criminal liability by
reason of death, pardon, amnesty, repeal of the law under
which prosecution is sought, or other legal causes.
SEC. 20. Consolidation.- The following cases shall, as far as
practicable, be consolidated for preliminary investigation purposes and
assigned to and jointly heard by one Investigating Officer:
a)
charges and counter-charges;
b)
cases arising from one and the same incident or
transaction or series of incident or transactions; and
c)
cases involving common parties and founded on
factual and/or legal issues of the same or similar character.
SEC. 21. Extension of time. - No motion or request for extension of
time to submit counter-affidavits shall be allowed or granted by the
Investigating Prosecutor except when the interest of justice demands that
the respondent be given reasonable time or sufficient opportunity to:
a)

engage the services of counsel to assist him in the

preliminary investigation proceedings;

b)

examine or verify the existence, authenticity or accuracy of

voluminous records, files, accounts or other papers or
documents presented or submitted in support of the
complaint; or

c)

undertake studies or research on novel, complicated or

technical questions or issues of law and of facts
attendant to the case under investigation.

Extensions of time to submit a counter-affidavit for any of the

reasons stated above shall not exceed ten (10) days. Additional extensions
may be authorized by the Provincial/City Prosecutor concerned.

SEC. 22. Suspension of proceedings.- Upon motion of a party, or

when raised in a counter-affidavit, the Investigating Prosecutor may
suspend the preliminary investigation proceedings if the existence of a
prejudicial question is satisfactorily established. 52
The existence of a prejudicial question shall, however, not be a
ground for the dismissal of the complaint.
SEC. 23. Concept of prejudicial question.- A prejudicial question is one the
resolution of which is a logical antecedent of the issue involved in a case and the
cognizance of which pertains to another tribunal. 53 It is based on a fact distinct
and separate from the crime charged but so intimately connected with it that it
determines the guilt or innocence of the accused. To suspend the criminal action,
it must not only appear 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 raised in the civil case, the guilt or innocence of
the accused would necessarily be determined.54

SEC. 24. Elements of prejudicial question. - The essential elements

of a prejudicial question are:
a)
b)

the civil action involves an issue similar or intimately related

to the issue raised in the criminal action;
the resolution of such issue determines whether or not the
criminal action may proceed ; and
the cognizance of the said issue pertains to another
tribunal.56
55

c)

SEC. 25. Issuance of orders of suspension of proceedings.- No

resolution or order suspending the preliminary investigation based on the
existence of a prejudicial question shall be issued by the Investigating
Prosecutor without the written approval of the Provincial/City Prosecutor
concerned or his duly designated assistant.
SEC. 26. Reply-affidavits and rejoinders.- The Investigating Prosecutor shall
not require or allow the filing or submission of reply-affidavits and/or rejoinders,
except where new issues of fact or questions of law which are material and
52

Sec.6, Rule 111, ibid.

53

Ras vs. Rasul, 100 SCRA 125 [1980]; Quiambao vs. Osono, G. R. No.48157, March 16, 1988; and

Appendix P

54

Donato vs. Luna, G.R. No.53642, April 15, 1988; Prado vs. People, 133 SCRA 602 [1984]; and

Librodo vs. Coscolluela, Jr., 116 SCRA 303 [1982].

55

56

Sec. 5, Rule 111, supra.

Cf. Ras vs. Rasul, supra; Quiambao vs. Osono, supra.

substantial in nature are raised or invoked in the counter-affidavit or subsequent

pleadings and there exists a need for said issues or questions to be controverted
or rebutted, clarified or explained to enable the Investigating Prosecutor to arrive
at a fair and judicious resolution of the case. In such a case, the period for the
submission of reply affidavits or rejoinders shall in no case exceed five (5) days
unless a longer period is authorized by the Provincial/City Prosecutor concerned.

SEC. 27. Clanficatory questions. - The Investigating Prosecutor may

set a hearing to propound clarificatory questions to the parties or their
witnesses if he believes that there are matters which need to be inquired
into personally by him. In said hearing, the parties shall be afforded the
opportunity to be present but without the right to examine or crossexamine. If they so desire, they may submit written questions to the
Investigating Prosecutor who may propound such questions to the parties
or witnesses concerned.57
The Investigating Prosecutor shall make a record of the questions
asked and answers given during the clarificatory questioning which shall
be signed by the parties concerned and/or their respective counsel. Said
notes shall form part of the official records of the case. Parties who desire
to file a petition for review of the Investigating Officer's resolution may, at
their option, cite specific portions of the oral testimony by reference to the
transcript of stenographic notes. Said notes shall only be transcribed in
cases of appeal and shall be obtained at the expense of the interested
party.
28. Submission of case for resolution. - The Investigating Prosecutor
shall case submitted for resolution:
a)

when the respondent cannot be subpoenaed or, if

subpoenaed, does not submit his counter-affidavit
within the reglementary period. In such a case, the
Investigating Prosecutor shall base his resolution on the
evidence presented by the complainant; 58 or

b)

upon submission by the parties of their respective

affidavits and supporting proof or documents, in which
event, he shall, upon the evidence thus adduced,
determine whether or not there is sufficient ground to
hold the respondent for trial 59

SEC. 29. Lack of probable cause.- If the Investigating Prosecutor

does not find sufficient basis for the prosecution of the respondent, he
57

Sec. 3(e), Rule 112, supra.

58

Secs. 3 (d) & (f), Rule 112, ibid.

59

Sections 3(d) & (f), Rule 112, ibid.

shall prepare the resolution recommending the dismissal of the complaint.

SEC. 30. Finding of probable cause. - If the Investigating Prosecutor finds
that probable cause exists, he shall prepare the resolution and the corresponding
information or complaint in the appropriate cases.

Where the respondent is a public officer or employee or a member

of the Philippine National Police (PNP), the Investigating Prosecutor shall
also determine whether or not the offense with which he is charged was
committed in relation to his office and, if so committed, such fact should
be alleged in the information to be filed with the Sandiganbayan through
the Ombudsman 60
SEC. 31. Reopening of investigation.- After a case under preliminary
investigation has been submitted for resolution under the provisions of the
preceding Section but before promulgation of the resolution, the
preliminary investigation may be reopened for the purpose of receiving
new and/or additional evidence upon the prior authorization given by the
Provincial/City Prosecutor concerned or upon motion of the interested
party, Provided, That in the latter case, it shall be subject to the following
conditions:
a)
the motion is verified and a copy thereof furnished the
opposing party;
b)
the motion is accompanied with the new and/or
additional evidence; and
c)
the motion sufficiently and satisfactorily shows valid
and justifiable reason for the failure of the movant to submit
the new and/or additional evidence during the preliminary
investigation proceedings.
SEC. 32. Cases Transmitted by the Municipal Trial Judge. - Upon
receipt of the records of the case from the Municipal Trial Court or
Municipal Circuit Trial Court which conducted the Preliminary Investigation,
the Prosecution Office shall review the case based on the existing records,
without requesting the parties to submit memorandum of authorities ,61
and may affirm, modify or reverse the finding of the Municipal Trial Court
judge. However, if the interest of justice so requires, the prosecutor may
conduct a full blown reinvestigation giving the parties the opportunity to
submit additional evidence, and thereafter, resolve the case on the basis
of the totality of the evidence thus adduced.
SEC. 33. Memoranda. - The Investigating Prosecutor shall not
require nor allow the filing or submission by the parties of memoranda
60

Republic vs. Maximiano Asuncion, G.R. No. L-108208, March 1994.

61

Department of Justice Memorandum Circular No.7, s.1988.

unless the case involves difficult or complicated questions of law or of fact.

In any event, the filing of memoranda by the parties shall be done
simultaneously and the period therefore shall not exceed ten (10) days,
unless a longer period is authorized by the Provincial/City Prosecutor
concerned.
SEC. 34. Period for resolving a case. - The Investigating Prosecutor
shall resolve the case within ten (10) days from the time the case is
deemed submitted for resolution,62 unless otherwise provided herein or a
longer period is authorized by the Provincial/City Prosecutor concerned.
SEC. 35. Form of resolution and number of copies.- The resolution shall be
written in the official language, personally and directly prepared and
signed by the Investigating Prosecutor. It shall be prepared in as many
copies as there are parties, plus three (3) additional copies.
SEC. 36. Contents of the resolution. - A resolution shall contain a

caption and a body.

SEC. 37. Caption of resolution. - The caption of the resolution shall

indicate the:

a) names of all the complainants and all of the respondents;

b) Case Number, otherwise known as the Investigation Slip
Number or 1.8. No.;
c) the offense charged;
d) the date of the filing of the complaint with the office;
e) the date of the assignment of the case to or receipt of the
case record by the Investigating Officer; and
f) the date the case was submitted for resolution.
SEC. 38. Names of parties. - The complete names of all the
complainants and respondents in the case shall be set out in the caption
of the resolution. It is not proper to use the phrase "et. al." to refer to
other complainants and respondents.
The name of the victim or injured party, not their representative,
shall appear in the caption. In cases referred to the prosecution by the
police where there is no identified victim, as in prohibited drugs cases, the
62

Sec. 3(f), Rule 112, supra.

complainant shall be the police station involved, followed by the name and
designation of the police officer representing the police station. In
homicide or murder cases, the name of the victim or of the complainant
shall be in the caption. The heirs or relatives of the slain victim shall be
indicated as "Legal heirs of deceased (name or person killed)",
represented by "(either the surviving spouse, father or mother)".
In the case of a corporation or judicial entity, its corporate name or
identity shall be indicated and written as follows. " 'X' Corporation,
represented by its (position title), (name of corporate officer)".
SEC. 39. Case number. - The number of a case shall indicate the
year and month; it was filed and its entry number in the log book of the
office, e.g. 97 (year)A(month)-024(entry number).
SEC. 40. Designation of offense charged. - For offenses that are
punishable under the Revised Penal Code, the caption shall set forth the
denomination of the offense and the specific article and paragraph of the
statute violated.
Where there is another charge or countercharge in the same case having
one case number or in case of a consolidated resolution involving two or
more criminal cases with two or more docket numbers, the caption shall
also contain said information.
SEC. 41. Contents of body of resolution. - In general, the body of
resolution should contain:
a)
b)
c)

a brief summary of the facts of the case;

a concise statement of the issues involved; and
the findings and recommendations of the Investigating
Prosecutor.

All material details that should be found in the information prepared

by the Investigating Prosecutor shall be stated in the resolution.
SEC. 42. Parts of a resolution. - As a rule, the body of a resolution is
made up of four parts, namely:
a)

b)

Part 1 shall state the nature of the case as disclosed in the

evidence presented by the complainant such as his affidavitcomplaint, the affidavit of witnesses and documentary and
physical evidence. The affidavits shall be numbered in the
order of the presentation of the prosecution witnesses as
disclosed in the list of witnesses appearing in the information.
As for the documentary evidence, they shall be alphabetically
marked as they would be marked during the pre-trial and trial
stages of the case.
Part 2 shall contain the version of complainant of the

c)
d)

incident. The presentation of the complainant's case should

be concise and shall not be cluttered with details that are not
necessary to show the elements of the offense.
Part 3 shall allege the respondent 1s version of the incident.
This must also be concise.
Part 4 shall contain the discussion, analysis and evaluation by
the prosecutor of the evidence presented by the complainant
and the respondent, without relying on the weakness of the
defense of the respondent. It shall also contain the conclusion
of the prosecutor. The complainant's and respondent's
versions of the incident need not be repeated in this part
except to point out excerpts relating to the existence or
absence of the elements of the crime. Citations of pertinent
laws and jurisprudence should support the conclusions
reached. Where numerical values are important, the number
shall be written in words and figures.

SEC. 43. How recommended hail is written. - The bail recommended

in the resolution shall be written in words and figures.
SEC. 44. Recommended bail. - The bail recommended in the
resolution shall be stated in the information, written in words and figures,
and initialed by the investigating prosecutor.
SEC. 45. Parties to be furnished with a copy of the resolution. - The
complete names and addresses of the complainant and the respondent
shall be set out at the end of the resolution after the signature of the
investigating prosecutor and the head of the Prosecutor's Office concerned
under the phrase: "Copy furnished:".
If the parties are represented by counsel and the latter's
appearance is entered formally in the record, 63 the counsel, not the party,
shall be given a copy of the resolution.
SEC. 46. Signature and initials of investigating prosecutor. - The
investigating prosecutor shall sign the resolution and if the resolution
consists of two or more pages, the prosecutor shall initial all of said pages,
excluding the signature page.
SEC. 47. Records of the case. - The investigating fiscal shall forward
his resolution, together with the complete records of the case, to the
Provincial or City Prosecutor or Chief State Prosecutor concerned within
five (5) days from the date of his resolution. 64
SEC. 48. Action of the Provincial or City Prosecutor or Chief State
63

Note: A special appearance does not qualify.

64

Sec. 4, par.1,Rule 112, supra.

Prosecutor on resolution. - The Provincial or City Prosecutor or Chief State

Prosecutor concerned shall act on all resolutions within ten (10) days from
receipt thereof by either approving or disapproving the resolution or
returning the same to the investigating prosecutor for further appropriate
action.' 'immediately after approving or disapproving the resolution, the
Provincial or City Prosecutor or Chief State Prosecutor concerned shall
transmit a copy of the resolution to the parties.
SEC. 49. Reversal by the Provincial or City Prosecutor or Chief State
Prosecutor of resolution of investigating prosecutor. - If the Provincial or
City Prosecutor or Chief State Prosecutor reverses the recommendation in
the resolution of the investigating prosecutor, the former may, by himself,
file the corresponding information or direct any other assistant prosecutor
or state prosecutor, as the case may be, to do so without need of
conducting another preliminary investigation.
SEC. 50. Approval of pleading by head of prosecution office. - A
pleading prepared by the trial prosecutor, including exparte motions, shall
not be filed in court without the prior written approval by the Provincial or
City Prosecutor or Chief State Prosecutor, as the case may be, of said
pleading.

SEC. 51. Motion for reinvestigation, where filed. - Before the

arraignment of the accused, a motion for reinvestigation of the case may
be filed with the City/Provincial Prosecutor, Provided, That when the case
has been appealed to the Regional State Prosecutor or the Department of
Justice, such motion may be filed, respectively, with the said offices. After
arraignment, said motion may only be filed with the judge hearing the
case.
SEC. 52. Confidentiality of resolutions. - All resolutions prepared by
an Investigating Prosecutor after preliminary investigation, whether his
recommendation be for the filing or dismissal of the case, shall be held in
strict confidence and shall not be made known to the parties, their counsel
and/or to any unauthorized person until the same shall have been finally
acted upon by the Provincial/City Prosecutor or his duly authorized
assistant and approved for promulgation and release to the parties.
Violation of the foregoing shall subject the Investigating Prosecutor
or the employee of the office concerned to severe disciplinary action.
SEC. 53. Information/Complaint.- The information/complaint shall be
personally and directly prepared by the Investigating Prosecutor or such
other prosecutor designated for the purpose and signed by him or the
complainant, as the case may be. It shall state and contain, in addition to
the requirements of the Rules of Court on the sufficiency of the allegations
in an information or complaint, the following:

a)
b)
c)

d)
e)
f)
g)
h)

the full name and aliases, if any, and address of the accused;
the age and date of birth of the complainant or the accused, if
eighteen (18) years of age or below;
the full names and addresses of the parents, custodian or
guardian of the minor complainant or accused, as the case
may be;
the place where the accused is actually detained;
the full names and addresses of the complainant and
witnesses;
a detailed description of the recovered items, if any;
the full name and address of the evidence custodian; and
the bail recommended, if the charge is bailable.

The Investigating Prosecutor shall certify under oath that he or, as

shown by the record, an authorized officer, had personally examined the
complainant and his witnesses; that there is reasonable ground to believe
that a crime has been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and of the
evidence submitted against him and that he was given an opportunity to
submit controverting evidence; and that he is filing the complaint or
information with the prior authority and approval of the Provincial/City
Prosecutor concerned.65
SEC. 54. Documents to be attached to information/complaint. - An
information/complaint that is filed in court shall, as far as practicable, be
accompanied by a copy of the resolution of the Investigating Prosecutor,
the complainant's affidavit, the sworn statements of the prosecution's
witnesses, the respondent's counter-affidavit and the sworn statements of
his witnesses and such other evidence as may have been taken into
account in arriving at a determination of the existence of probable cause. 66
SEC. 55. Promulgation of resolution.- The result of the preliminary
investigation shall be promulgated by furnishing the parties or their
counsel a copy of the resolution by:
a)
b)

c)

personal service;
registered mail with return card to the complainant, and by
ordinary mail to the respondent, if the resolution is for the
dismissal of the complaint; or
registered mail with return card to the respondent, and by
ordinary mail to the complainant, if the resolution is for the
indictment of the respondent.

SEC. 56. Motion for reconsideration. - A motion for reconsideration

65

Section 4 (2) Rule 112, supra.

66

Lim V. Felix, G. R. No.94054-57, and Fernandez V. Felix, G.R. No.94266-57, 194 SCRA 292

[1991]; See also Allado V. Diokno, 232 SCRA 192 [1994].

may be filed within ten (10) days from receipt of the resolution. The
motion shall be verified, addressed to the Provincial/City Prosecutor or the
Chief State Prosecutor, and accompanied by proof of service of a copy
thereof on the opposing party and must state clearly and distinctly the
grounds relied upon in support of the motion.
A motion for reconsideration is still part of due process in the
preliminary investigation. The denial thereof is a reversible error as it
constitutes a deprivation of the respondent's right to a full preliminary
investigation preparatory to the filing of the information against him. 67 The
court therefore may not proceed with the arraignment and trial pending
resolution of the motion for reconsideration.
SEC. 57. Inhibition. - A Prosecutor shall inhibit himself from
conducting a preliminary investigation in a case wherein a)
b)
c)

he or his wife or child is interested as heir, legatee, creditor

or otherwise; or
he is related to either affinity or to counsel
he has been named counsel. party within the 6th degree of
consanguinity or within the 4th degree; or executor,

administrator, guardian, trustee or

A motion to disqualify or inhibit the Investigating Prosecutor may be
filed with the City/Provincial or Chief State Prosecutor concerned for just or
valid reasons
other than those mentioned above.
SEC. 58. Period to resolve cases under preliminary investigation. The following periods shall be observed in the resolution of cases under
preliminary investigation:
a)

b)

c)

The preliminary investigation of complaints charging a capital

offense shall be terminated and resolved within ninety (90)
days from the date of assignment to the Investigating
Prosecutor.
The preliminary investigation of all other complaints involving
crimes cognizable by the Regional Trial Courts shall be
terminated and resolved within sixty (60) days from the date
of assignment.
In cases of complaints involving crimes cognizable by the
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts, the preliminary investigation - should the same

be warranted by the circumstances - shall be terminated and

resolved within sixty(60) days from the date of assignment
to the Investigating Prosecutor.
In all instances, the total period (from the date of assignment to the
67

Torralba vs. Sandiganbayan, 230 SCRA 33 [1994].

time of actual resolution) that may be consumed in the conduct of the

formal preliminary investigation shall not exceed the periods prescribed
herein.68
PART IV. PETITION FOR REVIEW69
SECTION 1. Subject of petition for review.- Only resolutions of the
Chief State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor dismissing a criminal complaint may be the subject of a Petition
for Review to the Secretary of Justice except as otherwise provided in
Section 4 hereof.
A petition from the resolution of a Provincial/City Prosecutor where
the penalty prescribed for the offense charged does not exceed prision
correccional, regardless of the imposable fine, shall be made to the
Regional State Prosecutor who shall resolve the petitions with finality. Such
petitions shall also be governed by these rules.
The provision of the preceding paragraph on the finality of the
resolution of the Regional State Prosecutor notwithstanding, the Secretary
of Justice may, in the interest of justice and pursuant to his residual
authority of supervision and control over the prosecutors of the
Department of Justice, order the automatic review by his office of the
resolution of the Regional State Prosecutors in the cases appealed to the
latter.
SEC. 2. Period to file petition.- The petition must be filed within a
period of fifteen (15) days from receipt of the questioned resolution by the
party or his counsel. The period shall be interrupted only by the filing of a
motion for reconsideration within ten (10) days from receipt of the
resolution and shall continue to run from the time the resolution denying
the motion shall have been received by the movant or his counsel.
SEC. 3. Form and contents. - The petition shall be verified by the
petitioner and shall contain the following:
a)

b)
c)
d)
68

date of receipt of the questioned resolution; date of filing of

the mot )n for reconsideration; if any; and date of receipt of
the resolution on the motion for reconsideration;
names and addresses of the parties;
the Investigation Slip Number or I.S. No. and/or criminal case
number and the title of the case;
the venue of the preliminary investigation;

Department of Justice Circular No.24 dated 24 March 1995.

Department Order No.223 dated June 30,1993 as amended by DO No.359 dated October
17, 1995.
69

e)
f)
g)

a clear and concise statement of the facts, the assignment of

errors, and the legal basis of the petition;
in case of a finding of probable cause, that petitioner has filed
in court a motion to defer further proceedings; and
proof of service of a copy of the petition to the adverse party or his
counsel and the prosecutor either by personal delivery or registered
mail evidenced by the registry receipts and affidavit of mailing.

The petitioner shall append to his petition copies of the material and
pertinent affidavits/sworn statements (including their translations, if any,
duly certified by the city/provincial prosecutor) and evidence submitted in
the preliminary investigation by both parties and the questioned
resolution.
The prosecutor concerned shall immediately inform the
Department or the Regional State Prosecutor of the action of
the court on the motion to defer further proceedings. If the
accused is arraigned during the pendency of the petition, the
prosecutor concerned shall likewise immediately inform the
Department or the Regional Stat& Prosecutor of such
arraignment.
SEC. 4. Cases not subject to review; exceptions.- No petition
may be allowed from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon showing of
manifest error or grave abuse of discretion. Either
complainant/offended party or respondent/accused may file a
petition. Notwithstanding the showing of manifest error or
grave abuse of discretion no petition shall be entertained
where the accused had already been arraigned. Once
arraigned, the petition shall be dismissed motu proprio by the
Secretary of Justice.
SEC. 5. Answer.- Within a non-extendible period of fifteen
(15) days from receipt of a copy of the petition, the respondent
may file a verified answer indicating therein the date that the
copy of the petition was received with proof of service of the
answer to the petitioner. If no answer is filed, the case shall be
resolved on the basis of the petition.
SEC. 6. Withdrawal of petition.- The petition may be
withdrawn at any time before it is finally resolved, in which
case the questioned resolution shall stand.
SEC. 7. Motion for reinvestigation.- At any time after the
filing of the petition and before its resolution, the petitioner
may, with leave of court, file a motion for reinvestigation on
the ground that new and material evidence has been

discovered which petitioner could not, with reasonable

diligence, have discovered during the preliminary investigation
and which if produced and admitted would probably change
the resolution. The Department or the Regional State
Prosecutor, as the case may be, shall then issue a resolution
directing the reinvestigation of the case, if still legally feasible.
When reinvestigation is granted, it shall take place in the
Office of the Prosecutor from which the petition was taken.
SEC. 8. Disposition of petition.- The Secretary of Justice or the Regional
State Prosecutor may reverse, affirm or modify the questioned resolution. They
may, motu proprio or on motion of the petitioner, dismiss outright the petition on
any of the following grounds:
9

a)
b)
c)
d)

e)

that the offense has prescribed;

that there is no showing of any reversible error;
that the procedure or requirements herein prescribed have
not been complied with;
that the questioned resolution is interlocutory in nature,
except when it suspends the proceedings based on the
alleged existence of a prejudicial question; or
that other legal or factual grounds exist to warrant a
dismissal.

SEC. 9. Motion for Reconsideration.- The aggrieved party may file a

motion for reconsideration within a non-extendible period of ten (10) days
from receipt of the resolution on the petition, furnishing the adverse party
or his counsel and the prosecutor with copies thereof. No second motion
for reconsideration shall be entertained.
SEC. 10. Effect of filing of petition. - A petition for review, motion for
reconsideration/reinvestigation from a resolution finding probable cause
shall not hold the filing of the information in court.
Pending resolution of the Petition for review, the accused is entitled
to a suspension of the proceedings, to the holding in abeyance of the
issuance of warrant of arrest, and deferment of the arraignment. 70

Like a motion for reconsideration of the resolution of the City/Provincial

Prosecutor, the right to a petition for review is a part of due process.
Notwithstanding the ruling in Crespo vs. Mogul (151 SCRA 463 [1987]), the
Court may not proceed with the criminal proceedings until after the
resolution of the Regional Prosecutor or of the Secretary of Justice shall
have become final, and the corresponding motion has been filed in Court
by the trial prosecutor to withdraw or dismiss the information or to
proceed with the trial as the case may be, per findings in the petition for
review. (See Roberts; Jr. et al. vs. C.A. et al., 254 SCRA 307 [1996]).
70

PART V. BAIL71
9

SECTION 1. Bail defined. - Bail is the security given for the release of
a person in custody of the law, furnished by him or a bondsman,
conditioned upon his appearance before any court as required under the
conditions hereinafter specified. Bail may be given in the form of corporate
surety, property bond, cash deposit, or recognizance.
SEC. 2. Nature of right to bad.- The right to bail is guaranteed by the
Constitution. It is the duty of the prosecutor to recommend such amount of
bail to the courts of justice as, in his opinion, would ensure the appearance
of an accused person when so required by the court. 72
SEC. 3. Non-bailable offense. - No person charged with a capital
offense, or an offense punishable by reclusion perpetua or life
imprisonment, when evidence of guilt is strong, shall be admitted to bail
regardless of the stage of the criminal prosecution.
SEC. 4 Criteria in recommending amount of bail. - In recommending
the amount of bail to be granted by the court, the prosecutor shall take
into consideration the following standards and criteria:
a)
b)
c)
d)
e)
f)

g)
h)

financial ability of the respondent/accused to post bail;

nature and circumstances of the offense;
penalty for the offense charged;
age, state of health, character and reputation of the
respondent/accused under detention;
weight of the evidence against the respondent/accused under
detention;
forfeiture of other bonds and pendency of other cases
wherein the respondent/accused under detention is under
bond;
the fact that respondent/accused under detention was a
fugitive from justice when apprehended; and
other factors affecting the probability of the accused
appearing at the trial.73

SEC. 5. Burden of proof in bail application. - At the hearing of an

application for admission to bail filed by any person who is in custody for
the commission of an offense punishable by death, reclusion perpetual or
life imprisonment, the prosecution has the burden of showing that
evidence of guilt is strong. The evidence presented during the bail
Rule 114, Rules on Criminal Procedure, as amended by Supreme Court Administrative
Circular No.12-94 dated August 16, 1994.
71

72

Department of Justice Circular No.36, Sept. 1, 1981.

Sec. 6, Rule 114, supra; Department of Justice Circular No.4, series of 1996, effective 1
February 1996.
73

hearings shall be considered automatically reproduced at the trial, but

upon motion of either party, the court may recall any witness for
additional examination unless the witness is dead, outside of the
Philippines or otherwise unable to testify.

SEC. 6. Recognizance. - Whenever allowed pursuant to law or these

Rules, the court may release a person in custody on his own recognizance
or that of a responsible person.
SEC. 7. Bail, when not required; reduced bail or recognizance. - No
bail shall be required when the law or the Rules issued by the Supreme
Court so provide74.
When a person has been in custody for a period equal to or more
than the possible maximum imprisonment of the offense charged to which
he may be sentenced, he shall be released immediately without prejudice
to the continuation of the trial thereof or the proceedings on appeal. In
case the maximum penalty to which the accused may be sentenced is
destierro, he shall be released after thirty (30) days of preventive
imprisonment.
A person in custody for a period equal to or more than the minimum
of the principal penalty prescribed for the offense charged without
application of the Indeterminate Sentence Law or any modifying
circumstance, shall be released on a reduced bail or on his own
recognizance, at the discretion of the court.
SEC. 8. Notice of application for hail to prosecutor. - In an
application for bail, the court shall give reasonable notice of the hearing to
the prosecutor or require him to submit his recommendation.
SEC. 9. Cancellation of hail bond. - Upon application filed with the
court and after due notice to the prosecutor, the bail bond may be
canceled upon surrender of the accused or proof of his death.
The bail bond shall be deemed automatically canceled upon
acquittal of the accused or dismissal of the case or execution of the final
judgment of conviction.
In all instances, the cancellation shall be without prejudice to any
liability on the bond.
SEC. 10. Arrest of accused out on hail. - For the purpose of
surrendering the accused, the bondsmen may arrest him, or on written
authority endorsed on a certified copy of the undertaking may cause him
74

See RA 6036 and Rules on Summary Procedure; Art. 29, Revised

Penal Code; BP BIg 85 [1980]; Sec. 13, Rule 114, ibid.

to be arrested by any police officer or any other person of suitable age and
discretion.
An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the Philippines
without prior permission of the court where the case is pending.
SEC. 11. No had after final judgment, exception. - An accused shall
not be allowed bail after the judgment has become final, unless he has
applied for probation
before commencing to serve sentence, the penalty and the
offense being within the purview of the Probation Law. In
case the accused has applied for probation, he may be
allowed temporary liberty under his bail bond, but if no bail
was filed or the accused is incapable of filing one, the
court may allow his release on recognizance under the
custody of a responsible member of the community. In no
case shall bail be allowed after the accused has
commenced to serve sentence.
SEC. 12. Rules in computing the bail to be recommended. - To
achieve uniformity in the amount of bail to be recommended, the following
rules shall be observed:
a)

b)

Where the penalty is reclusion perpetua, life

imprisonment, reclusion perpetua to death or death,
bail is not a matter of right; hence, it shall not be
recommended.
Where bail is a matter of right and the imposable
penalty is imprisonment and/or fine, the bail shall be
computed on the basis of the penalty of imprisonment
applying the following rules:
1.

ii.

iii.

iv

where the penalty is reclusion temporal

(regardless of period) to reclusion perpetua, bail
shall be computed based on the maximum of
reclusion temporal.
where the imposable penalty is correccional or
afflictive, bait shall be based on the maximum of
the penalty, multiplied by P2,000.00. A fraction
of a year shall be rounded-off to one year.
for crimes covered by the Rules on Summary
Procedure and Republic Act No. 6036, bail is not
required except when respondent/accused is
under arrest, in which case, bail shall be
computed in accordance with this guideline.
for crimes of reckless imprudence resulting in
homicide arising from violation of the Land
Transportation and Traffic Code, bail shall be

v.

P30,000.00 per deceased person.

for violation of Batas Pambansa Blg. 22, bail
shall be 50% of the amount of check but should
not be less than P2,000.O0nor more than
P30,000.00.

Where the imposable penalty is only a fine, bail shall be

computed as
follows:
9

1.

ii.
iii.

d)

fine not exceeding P2,000.00,bail is not

required.
fine of more than P2,000.00,bail shall be 50% of
the fine but should not exceed P30,000.00.
in case of reckless imprudence resulting to damage
to property, bail shall be three-eighths (3/8) of the
value of the damage but not exceeding P30,OOO.OO
except when covered by the Rules on Summary
Procedure.

Bail based on the maximum penalty, multiplied by

P1O,OOO.OO,shall be applied to the following offenses under
the following laws:
I.

ii.
iii.
iv.

v.
vi.

Republic Act No.6425 (Dangerous Drugs Act), as

amended by RA 7659;
Republic Act No.6539 (Anti-Carnapping Act), as
amended by RA 7659;
Republic Act No.7659 (for other crimes covered
by it);
Presidential Decree No. 186 (Illegal Possession
of Firearms, Ammunition or Explosives), as
amended by RA 8294;
Republic Act No. 1937 (Tariff and Customs
Code), as amended; or
Rebellion, insurrection or Coup d'etat as
amended by Republic Act No.6968.

SEC. 13. Petition for bail in a continuous trial. - In case a petition for
bail is filed by the accused and the court orders a continuous trial of the
case, the public prosecutor shall be prepared with his principal witnesses.
Where there are several accused and one or two filed a petition to bail, the
trial prosecutor shall, before the presentation of his first witness, manifest
in open court that the evidence to be presented in the hearing of the
petition for bail shall be adopted as its evidence-inchief.

PART VI. ARREST

SECTION 1. Definition of probable cause as a ground for an arrest or

issuance of a warrant of arrest. - Probable cause is such facts and
circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed by the person sought to be
arrested.75
SEC. 2. Remedy if no warrant of arrest is issued by the investigating
judge. -If the investigating judge is satisfied that there is probable cause
but did not issue the warrant of arrest contrary to the prosecutor's belief
that there is a need to place the accused under custody, the speedy and
adequate remedy of the prosecutor is to immediately file the information
so that the Regional Trial Court judge may issue the warrant for the arrest
of the accused.76
SEC. 3. Request for a copy of the return. - If a warrant of arrest has
been issued, the prosecutor may request the warrant officer that he be
furnished with the officer's return relative thereto. The prosecutor shall, as
far as practicable, coordinate with the witnesses from time to time to
ascertain the whereabouts of the accused pending the latter's arrest.

PART VII. ARRMGNMENT AND PLEA

SECTION 1. Concept of arraignment. - Arraignment is a mandatory
requirement that seeks to give the accused the opportunity, at the first
instance, to know why the prosecuting arm of government has been
mobilized against him and to plead. At the arraignment, the accused may
enter a plea of guilty or not guilty.
SEC. 2. Duties of trial prosecutor. a)

b)

Before the arraignment of the accused, the trial prosecutor

shall examine the information vis-a-vis the resolution of the
investigating prosecutor in order to make the necessary
corrections or revisions and to ensure that the information is
sufficient in form and substance.
After arraignment, the trial prosecutor shall prepare his
witnesses for trial. Government witnesses, e.g. medico-legal
officer, chemist, forensic experts, examiners etc. should, as
much as practicable, be presented in accordance with the
logical a~d chronological sequence of the technical aspects to
be proved.

Bemas, The Constitution of the Republic of the Philippines, a

Commentary, Vol. I, First Ed., 1987, pp.86-87 cited in Department
Circular No.24, dated March 24 1995.
75

76

Samulde vs. Salvani,Jr., 165 SCRA 724 [1988].

SEC. 3. Effect of filing a petition for review. - When an aggrieved

partymanifests in court that he has a pending petition for review with the
Department of Justice and moves for a deferment of the arraignment pending
resolution of his petition, the Trial Prosecutor may conform thereto once proof of
said petition has been presented by the petitioner to his satisfaction.
SEC. 4. Concept of plea. - The plea is the reply of the accused to the
charge. It raises the issue to be tried and on which the judgment/sentence of the
court can be properly based.

PART VIII. PRE-TRIAL77

SECTION 1. CoflcQpt ofpre-trial. - A pre-trial is a process whereby
the accused and the prosecutors in a criminal case work out, usually at the
arraignment stage, a naturally satisfactory disposition of a case subject to
court approval in order to expedite the trial of the case. 78
The prosecutor shall enter into a pre-trial only when the accused
and counsel agree and upon order of the court.
SEC. 2. Duties of prosecutor before and after the pre-trial
conference. -Before the pre-trial conference, the prosecutor should know
every fact and detail of the case. This can be accomplished by
interviewing the complainant and other witnesses and after a thorough
examination of the available documentary and other physical evidence.
The prosecutor should place importance ';;n the testimony of the expert
witness. The knowledge that the prosecutor will gain from said witness will
help him determine the procedures undertaken in the examination of a
subject or thing; the scientific or technical terms applied, and the reason/s
in arriving at a certain conclusion.
During the pre-trial process, the prosecutor shall bear in mind that
he has to prove his case beyond a reasonable doubt and that every act or
incident should be proved by the testimony of qualified and competent
witnesses.
After the pre-trial conference, the prosecutor shall ensure that any
agreement or admission made or entered therein is in writing and signed
by the accused and his counsel.
SEC. 3. Subject matters ofpre-tn.al. - The pre-trial conference shall
consider the following:
a)
77

Plea bargaining - This is a process where the defendants

Rule 118, Rules on Criminal Procedure.

78

Black's Law Dictionary, 5th Ed. 1979, p.1037.

usually plead guilty to a lesser offense or to only one or some

of the counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge 79;
b)

Stipulation of facts- This is the agreement of the parties on some

facts admitted, some facts covered by judicial notice (Sec. 1, Rule
129), judicial admissions (Sec. 2 Rule 129), or on matters not
otherwise disputed by them. In cases requiring the presentation of
government witnesses or evidence, the Trial Prosecutor should exert
every effort to secure a waiver by the accused of objections to the
admissibility of certain documentary evidence, e.g., medical or
death cenificare, necropsy report, forensic chemistry report,
ballistics report, PhilippineOverseas and Employment
Administration (POEA) Certification, and the like, if such evidence
has no relevance whatsoever to the theory of the defense, in order
to d~spense with the presentation and testimony in court of
government witnesses. Whenever appropriate or necessary, the
counter-affidavit of the accused submitted luring the preliminary
investigation may be resorted to or availed of to denions~rate or
establish the defense theory;

c)
d)
e)

f)

Marking of documentary evidence in advance for

identification;
Waiver in advance of objections to admissibility of
evidence;
List of witnesses to be presented which should be
qualified by the following statement: "that other
witnesses may be presented in the course of the trial";
and
Such other matters as will promote a fair and
expeditious trial.

SEC. 4. Plea of guilty to a lesser offense. - The following rules shall

apply to cases where the accused pleads guilty to a lesser offense:
a)

b)

c)

79

ibid, p.1037.

The Trial Prosecutor shall immediately move for the

suspension of the proceedings whenever the accused
manifests his intention in court to plead guilty to a
lesser offense. This will enable the Trial Prosecutor to
evaluate the implications of the offer.
If the lesser offense to which the accused will plead
guilty is not a capital offense, the Trial Prosecutor may
dispense with the presentation of evidence unless the
court directs otherwise.
The Trial Prosecutor, with the consent of the offended
party, may motu propno agree to the offer of the
accused to plead guilty to a lesser offense if the penalty
imposable therefor is prision correcional (maximum of

d)

e)

six [61 years) or less or a fine not exceeding

P12,OOO.OO.
When the penalty imposable for the offense charged is
prision mayor (at least six [6] years and one [11 day or
higher) or a fine exceeding ~12,OOO.OO, the Trial
Prosecutor shall first submit his
comment/recommendation to the City or Provincial
Prosecutor or to the Chief State Prosecutor, as the case
may be, for approval. If the recommendation is
approved in writing, the Trial Prosecutor, may, with the
consent of the offended party, agree to a plea of guilty
to a lesser offense. For this purpose, the Chief State
Prosecutor or the Provincial or City Prosecutor
concerned shall act on the recommendation of the Trial
Prosecutor within forty-eight (48) hours from receipt
thereof. In no case shall the subject plea to a lesser
offense be allowed without the written approval of the
above respective heads of office.
In all cases, the penalty for the lesser offense to which
the accused may be allowed to plead guilty shall not
be more than two (2) degrees lower than the
imposable penalty for the crime charged,
notwithstanding the presence of mitigating
circumstances. The lesser offense shall also be one
that is necessarily related to the offense charged or
the offense must belong to the same classification or
title under the Revised Penal Code or therelevant
special laws.80

However, the plea of guilty to a lesser offense may not be allowed

where it so contravenes lo~ nd common sense as to be unconscionable,
thereby resulting in
us, where the offense charged is homicide, a plea of guilty to a lesser
offense of frustrated or attempted homicide, may not be allowed, since
the fact of death cannot be reconciled with the plea of guilty to frustrated
or attempted homicide. Homicide necessarily produces death, while
frustrated or attempted homicide does not.81
SEC. 5. when accused pleads guilty to a capital offense. - If the
accused pleads guilty to a capital offense, the Trial Prosecutor must
present evidence to prove the guilt of the accused and the precise degree
of his culpability. This is mandatory.

PART IX. TRIAL'

80

Department of Justice Circular No.55, dated 31 July 1990.

81

Amatan vs. Aujero 248 SCRA 511(1995).

SECTION 1. Definition of trial. - A trial is a judicial examination of the

claims at issue in a case which are presented by the prosecution and
defense to enable the court to arrive at a judgment pronouncing either the
guilt or innocence of the accused. 2
SEC. 2. Concept of trial. - The object of a trial is to mete out justice,
and to convict the guilty and protect the innocent. Thus, the trial should
be a search for the truth and not a contest over technicalities and must be
conducted under such rules as will protect the innocent. 3
SEC. 3. Expeditious prosecution of criminal cases filed with the
courts. -The Trial Prosecutor shall always be prepared to conduct the
prosecution with his witnesses who shall be subpoenaed well in advance of
the scheduled trial dates.4 No postponement of the trial or other
proceedings of a criminal case shall be initiated or caused by the Trial
Prosecutor except in instances where the postponement is occasioned by
the absence of material witnesses or for other causes beyond his control
or not attributable to him.
SEC. 4. Order of presentation of witnesses. a)
The order in the presentation of witnesses will be left
to the discretion of the Trial Prosecutor. However, the
prosecutor should take into consideration the order of events
as established by the evidence of the prosecution.
b)
Witnesses who will testify for the first time shall be
afforded the opportunity to be advised to observe criminal
proceedings in court to help them overcome their anxiety,
excitement and tension.
SEC. 5. Preparation of formal offer of exhibits. - The Trial Prosecutor
shall safely keep his documentary and other physical evidence and
prepare a list thereof in the order they have been marked as exhibits,
identifying each by letter or number, describing it briefly, and stating its
specific purpose or purposes.
SEC. 6. Defense evidence. a)

Before reception of evidence for the defense starts, the Trial

Prosecutor shall ask from the adverse counsel the number of
witnesses he intends to present.

b)

If the names of defense witnesses are disclosed the Trial Prosecutor

shall elicit from reliable sources the whereabouts of these witnesses,
their moral character,, background, reasons for testifying and
relationship with the accused, among other things, to enable him to
have a clear view of the defense of the accused.

SEC. 7. Discharge of accused to he state witness. - When two or more

persons are jointly charged with the commission of any offense, upon motion of
the prosecution before resting its case, the court may direct one or more of the
accused to be discharged with their consent so that they may be witnesses for the
state provided the court, after hearing, is satisfied that:

c)

d)

e)

a)
There is absolute necessity for the testimony of the accused
whose discharge is requested.5
b)
There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said
accused,6 as when he alone has knowledge of the crime, and not
when his testimony would simply corroborate or otherwise
strengthen the evidence in the hands of the prosecution; 7
The testimony of said accused can be substantially corroborated in
its material points. This is an indispensable requirement because it
is a notorious fact in human nature that a culprit, confessing to a
crime, is likely to put the blame on others rather than himself.
Thus, even though a court may get the statement of a discharged
accused that other particular persons were engaged in the crime, it
is unsafe to accept without corroborating evidence, his statements
concerning the relative blame to be attached to different members
of his gang;~
Said accused does not appear to be the most guilty.9 The mere fact
that the witness sought to be discharged had pleaded guilty In the
crime charged does not violate the rule that the discharged
defendant must not "appear to be the most guilty. And even if the
witness should lack some of the qualifications enumerated by Sec.
9, Rule 119, his testimony will not, for that reason alone, be
discarded or disregarded.10 The ground underlying the rule is not
to let a crime that has been committed go unpunished; so an
accused who is not the most guilty is allowed to testify against the
most guilty, in order to achieve the greater purpose of securing the
conviction of the more or most guilty and the greatest number
among the accused permitted to be convicted for the offense they
committed.'' However, although an accused did not commit anv of
the stabbing, it is a mistake to discharge him as a state \witness
where he is bound in a conspiracy. All the perpetrators of the
offense bound in conspiracy are equally guilty.
Said accused has not at anv time been convicted of any offense
involving moral turpitude.

Evidence adduced in support of the discharge sha11 automatically form

part of the trial. If the court denies the motion for discharge of the accused

as state witness, his sworn statement shall be inadmissible in evidence.

SEC. 8. Witness protection. - An accused who is discharged from an
information or criminal complaint in order that he may be a state witness
as provided in the preceding section may, upon his petition, be admitted
to the Witness Protection Program under R.A. No.6981, "The Witness

Protection, Security and Benefit Act" if he complies with the other

requirements of said Act.
SEC. 9. Other persons who may avail of the Witness Protection Program.
-The following may also avail of the Witness Protection Program under R.A.
No.
6981:
a)
Any person who has witnessed or has knowledge of or
information on the commission of a crime and has testified or
is testifying or is about to testify before any judicial or
quasijudicial body, or before any investigating authority,
Provided, that:
the offense in which his testimony will be used is a
grave felony as defined under the Revised Penal Code
or its equivalent under special laws;
ii. his testimony can be substantially corroborated on its
material points;
iii. he or any member of his family within the second civil
degree of consanguinity or affinity is subjected to
threats to his life or bodily injury or there is a likelihood
that he will be killed, forced, intimidated, harassed or
corrupted to prevent him from testifying, or to testify
falsely or evasively, because or on account of his
testimony; and
iv. he is not a law enforcement officer, even if he would be
testifying against other law enforcement officers. In
such a case, only the immediate members of his family
may avail themselves of the protection provided for
under the Act.
1.

b)
Any person who has participated in the commission of
a crime and desires to be a witness for the State, whenever
the following circumstances are present:
the offense in which testimony will be used is a
grave felony as defined under the Revised Penal
Code or its equivalent under special laws;
ii. there is absolute necessity for his testimony;
iii. there is no other direct evidence available for the
proper prosecution of the offense committed;
i. .

iv his testimony can be substantially corroborated on

its material points;
V. he does not appear to be the most guilty; and
vi he has not at any time been convicted of any crime
involving moral turpitude.
SEC. 10. Motions for postponement of accused. - Motions for

postponement that are initiated by the accused should be vigorously

opposed by the Trial Prosecutor and he should make of record his
objections thereto, leaving to the court's discretion the disposition of the
subject motions.'3
SEC. 11. Discontinuance of proceedings. - During the presentation of
the prosecution's evidence, the Trial Prosecutor shall not cause or allow
the discontinuance of the proceedings except for other similarly
compelling reasons not attributable to him.14
SEC. 12. Presentation of evidence. - Each party is bound to complete
the presentation of his evidence within the trial dates assigned to him.
After the lapse of said dates, the party is deemed to have completed his
evidence presentation. However, upon verified motion based on serious
reasons, the judge may allow the party additional trial dates in the
afternoon; provided that said extension will not go beyond the threemonth limit computed from the first trial date. '5
Where a Trial Prosecutor, without good cause, secures
postponements of the trial over the objections of a defendant beyond a
reasonable period of time, the accused is entitled to relief by a proceeding
in mandamus to compel a dismissal of the information, or if he be
restrained of his liberty, by habeas corpus to obtain his freedom 16.
SEC. 13. Order of trial.- Upon receipt of the notice of trial, the
prosecutor shall review the record of the case for trial and complete his
preparation therefore bearing in mind that trial, once commenced, may
continue from day to day until terminated, and that trial shall proceed in
the following order pursuant to Sec. 3, Rule 119 of the Rules of Criminal
Procedure:
a) The prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
b) The accused may present evidence to prove his defense,
and damages, if any, arising from the issuance of any
provisional remedy in the case.
c) The parties may then respectively present rebutting
evidence only, unless the court, in furtherance of justice,
permits them to present additional evidence bearing upon
the main issue.
d) Upon admission of the evidence, the case shall be deemed
submitted for decision unless the court directs the parties to
argue orally or to submit memoranda.
e) However, when the accused admits the act or omission charged
in the complaint or information but interposes a lawful defense,
the order of trial may be modified accordingly.
SEC. 14. Presentation of witnesses.- The order in the presentation of
witnesses shall, as far as practicable, conform to he logical sequence of events

obtaining in the case on trial in order to present a clear, organized and coherent
picture to the court of the prosecution's evidence.
For example, in the case of prosecution under the Dangerous Drugs Law,
the Trial Prosecutor should present the forensic chemist who examined the
dangerous drug ahead of the other witnesses in order that the court may
at once have a view of the real evidence (either the prohibited or regulated
drug subject of the case) and so that such evidence may immediately
identified by the other witnesses thus avoiding the recall of witnesses later
on.
The rule of logical sequencing notwithstanding, a witness whose testimony
is vital to the case and whose life is in danger or who may be sick/injured arid may
possibly die, should be made to testify as early as practicable.
SEC. 15. Examination of witnesses for the prosecution.-Where it shall
satisfactorily appear that the witness for the prosecution is too sick or infirm to
appear at the trial as directed by order of the court, or has to leave the Philippines
with no definite date of returning thereto, he may forthwith be conditionally
examined before the judge or the court where the case is pending. Such
examination in the presence of the accused, or after reasonable notice to attend
the examination has been served on him, will be conducted in the same manner
as an examination at the trial. Failure or refusal on the part of the accused to
attend the examination after notice herein before provided, shall be considered a
waiver. The statement thus taken may be admitted on behalf of or against the
accused.
SEC. 16. Cross-Examination of defense witnesses. The prosecutor shall
endeavor to secure well in advance all available information about a defense
witness in order to prepare for an effective cross-examination. Where the
testimony of a defense witness bears no effect on the evidence of the
prosecution, a cross-examination need not be conducted.
SEC. 17. Rebuttal evidence.- The presentation and nature of rebuttal
evidence will depend on the effect which the defense evidence may have caused
on the prosecution's evidence-in-chief. The recall of a witness who already
testified during the evidence-in-chief presentation merely to refute what a
defense witness may have stated during his defense testimony is not generally a
rebuttal evidence. \Where there is nothing to refute, rebuttal evidence is
unnecessary.