CRIMINAL PROCEDURE l Atty.
Eduardo Soleng l TDCI (Revised 2016) JD2 407
CHAPTER 1. PRELIMINARY CONSIDERATIONS
BASIC CONCEPTS
CONCEPT OF CRIMINAL PROCEDURE
CRIMINAL PROCEDURE
The process by which the criminal laws are enforced and by
which the State prosecutes persons who violate the penal laws.
Criminal laws – define crimes and prescribe
punishment
Criminal procedure – lays down the processes by
which an offender is made to answer for the violation
of criminal laws.
Criminal pro as a network of laws
Network of laws and rules which governs the procedural
administration of justice. It starts with the initial contact of the
alleged lawbreaker to the investigation of the crime and
concludes with the judgment of either conviction or acquittal.
Role of criminal procedure in balancing societal interests
Criminal procedure has the imposing task of harmonizing
governmental functions of maintaining and promoting law and
order while protecting the constitutional rights of its citizens.
ADVERSARIAL OR ACCUSATORIAL SYSTEM
ADVERSARIAL OR ACCUSATORIAL SYSTEM
Our system of procedure is adversarial or accusatorial – two
contending parties (prosecution and defense) before the court
which hears them impartially and renders judgment only after
trial.
Accusation starts with a formal indictment (complaint
or information), the government to prove the
allegations beyond reasonable doubt
Presentation of evidence by both parties
The court decides – acquittal or conviction (shall not
consider evidence which has not been formally offered)
Court has a passive role and relies largely on the
evidence presented by both parties
To be distinguished from the inquisitorial system
The court plays a very active role and is not limited to the
evidence presented before it – the judges actively participates
in the gathering of evidence.
Mixed system – a combination of adversarial and inquisitorial
system.
LIBERAL INTERPRETATION OF THE RULES
How are rules of criminal procedures construed?
1|U NIV ERSI TY OF SA N CA R LOS
The rules on criminal procedure shall be liberally construed in
order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. (Sec 6
Rule 1 Rules of Court)
In favor of the accused and strictly against the state to
even the odds in favor of the accused against whom the
entire machinery of the state is mobilized.
Cenita Cariaga v. People
Petitioner’s former counsel erroneously appealed her conviction
to the CA instead of Sandiganbayan. Petitioner pleaded that the
rules be relaxed and CA to forward the records of the case to
Sandiganbayan.
Sec 2 Rule 50 mandated the dismissal of the case.
(Sec 2 Rule 50 – An appeal erroneously taken to the
CA shall not be transferred to the appropriate court but
shall be dismissed outright)
SC granted the prayer – since the appeal involved a criminal
case and the possibility of a person being deprived of liberty due
a procedural lapse is great, relaxation of the Rules was
warranted. The rules of procedures are tools to facilitate the
attainment of justice. Hence, a strict application thereof tending
to frustrate justice must be avoided.
DUE PROCESS, MANDATORY
DUE PROCESS
Due process in criminal proceedings is mandatory and
indispensable. “Law which hears before it condemns and
proceeds upon inquiry, and renders judgment only after trial.
Requirements:
1. The court trying the case is property clothed with
judicial power to hear and determine the matter
2. Jurisdiction is lawfully acquired by it over the person
of the accused
3. Accused is given the opportunity to be heard
4. Judgment is rendered upon lawful hearing
CRIMINAL JURISDICTION
What is criminal jurisdiction?
The authority to hear and try a particular offense and impose the
punishment for it.
REQUISITES FOR THE EXERCISE OF CRIMINAL
JURISDICTION
The following are the basic requisites before a court can acquire
jurisdiction over criminal cases.
1. Jurisdiction over the subject matter
2. Jurisdiction over the territory
3. Jurisdiction over the person of the accused
Jurisdiction over the subject matter vs. over the accused
JD over the subject matter – authority of the court to hear
and determine a particular criminal case. Hence, the
offense must be one which the court is authorized to take
cognizance of by law.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
JD over the accused – authority of the court over the
person charged of the crime and not over the subject
matter of the criminal litigation. – accused must have
been brought for trial by warrant of arrest or upon
voluntary submission.
Jurisdiction over the territory or venue in criminal cases
GENERAL RULE:
For jurisdiction to be acquired, the offense must have been
committed within the court’s territorial jurisdiction – to be
determined by the allegations in the complaint or information.
Example: If crime is committed in Pasay, the proper court in that
city has jurisdiction; RTC of Manila has no authority to issue a
search warrant for crimes committed in Cavite.
Purpose: So the defendant will not be compelled to move to or
appear in a different court as it would cause him great
inconvenience in looking for his witnesses and other evidence
in another place.
Effect if court has no jurisdiction: If crime was committed
somewhere else, the court should dismiss the action for want of
jurisdiction.
EXCEPTIONS:
1. Where offense was committed under the
circumstances in Article 2 of the RPC –offense is
cognizable before Philippine courts even if committed
outside of Philippine territory.
While on a Philippine ship or airship
Crimes against national security and the law of
nations
Forging and counterfeiting of Philippine coins and
currency notes
2. Where the Supreme Court orders a change of venue
or place of trial to a void a miscarriage of justice,
pursuant to its constitutional powers.
3. Offense committed in a public or private vehicle in the
course of its trip – action may be instituted in the court
of any territory where the vehicle passed during the trip,
place of departure or arrival.
4. Offense committed on board a vessel in the course of
its voyage – first port of entry or where it passed during
voyage
5. Where the case is cognizable by the Sandiganbayan
6. Where offense is written defamation – where offended
party held office if public officer, or place of residence
if private individual
CRIMINAL JURISDICTION OVER THE SUBJECT MATTER
The power to hear and determine cases of the general class to
which the proceedings in question belongs. The power to deal
with the general subject involved in the action. Not limited only
to a particular case but a class of cases.
Jurisdiction – the power and authority to hear and
determine issues of facts and of law.
Criminal jurisdiction – authority to hear and try a particular
offense and impose the punishment for it.
How jurisdiction over the subject matter is conferred
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The law confers jurisdiction and not the rules. Conferment must
clearly appear from the statute, otherwise it will not be held to
exist. It cannot be presumed.
Jurisdiction cannot be fixed by the will of the parties
Cannot be conferred by the accused upon the court,
express waiver or otherwise
Not conferred by mere administrative policy of any trial
court
How determined
By the allegations in the complaint or information and not by the
evidence presented by the parties at the trial. Hence, the
information must be examined for the purpose of ascertaining
whether or not the facts set out therein and the punishment fall
within the jurisdiction of the court where the action is filed.
In cases cognizable by the Sandiganbayan – the
nature of the offense and the position of the accused
are conditions sine qua non before the SB can take
cognizance.
In complex crimes – jurisdiction is with the court having
jurisdiction to impose the maximum and most serious
penalty
Statute applicable to a criminal action
The jurisdiction to try a criminal action is determined by the law
in force at the time of the institution of the action.
- Not during the arraignment of the accused
- Not at the time of the commission of the offense
Use of imposable penalty
The jurisdiction of the court is determined by the penalty which
may be imposed upon the accused and NOT the actual penalty
imposed after the trial.
Principle of adherence of jurisdiction or continuing
jurisdiction
GENERAL RULE:
The principle that once a court has acquired jurisdiction, that
jurisdiction continues until the final determination of the case.
It cannot be withdrawn or defeated by a subsequent
valid amendment of the information
Cannot be lost by a new law amending the rules of
jurisdiction
Flores v. Sumaljag
The court did not lose jurisdiction over the case involving a
public official by the mere fact that the latter ceased to be in
office during the pendency of the case
EXCEPTIONS
1. When the statute expressly so provides
2. When construed to the effect that it is intended to
operate upon action pending before its enactment.
Dismissal on jurisdictional grounds
1. An objection based on the ground of lack of jurisdiction
over the subject matter may be raised or considered
motu proprio by the court at any stage of the
proceedings or on appeal
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
2. A special appearance before the court to challenge the
jurisdiction of the court over the person is not
tantamount to a waiver of object and is not a voluntary
submission to the jurisdiction of the court
Raising the issue of jurisdiction for the first time in the SC
General rule: It may be raised and even considered motu proprio
by the court at any stage of the proceedings or on appeal.
Exception: A party cannot invoke jurisdiction of the court to
secure relief against opponent and repudiate the same after
failing to obtain such relief. Rule on estoppel.
CRIMINAL JURISDICTION OVER THE PERSON OF
ACCUSED
Acquired upon his arrest or apprehension, with or without a
warrant, or his voluntary submission to the jurisdiction of the
accused.
When right to question jurisdiction is deemed waived:
1. Posting of bail
2. Appearing and giving a bond
3. Active participation in the trial and presenting evidence
for the defense
General rule: Seeking affirmative relief is deemed to be a
submission to the jurisdiction of the court.
Exceptions:
1. Making a special appearance in court to question the
jurisdiction of the court over the person of the accused
2. When accused files a motion to quash the warrant of
arrest
Custody of the law vis-à-vis under the jurisdiction of the
court
Custody of the law – custody over the body of the accused.
Signifies restraint, depriving a person of his own will and liberty.
1. Under the custody of the law but not yet subject to the
jurisdiction of the court over his person
Example: Person arrested by virtue of a warrant who files
a motion to quash the warrant before arraignment
2. Under the jurisdiction of the court over his person but still
not in the custody of the law
Example: When the accused escapes custody after his
trial has commenced
INJUNCTION TO RESTRAIN CRIMINAL PROSECUTION
General rule: The Court will not issue writs of prohibition or
injunction to enjoin or restrain criminal prosecution.
Exceptions:
1. When necessary to afford adequate protection to the
constitutional rights of the accused
2. When necessary for the orderly administration of
justice or avoid oppression or multiplicity of actions
3. When there is a prejudicial question
4. When the acts of the officer are without or in excess of
authority
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5. Where the prosecution is under an invalid law
6. When double jeopardy is clearly apparent
7. Where the court has no jurisdiction of the offense
8. Where it is a case of persecution rather than
prosecution
9. Where the charges are manifestly false and motivated
by lust or vengeance
10. Clearly no prima facie case against the accused and a
motion to quash on that ground has been denied
MANDAMUS TO COMPEL PROSECUTION
Mandamus – remedial measure for parties aggrieved which
shall be issued when any tribunal or person unlawfully neglects
the performance of an act which the law enjoins as a duty.
Public prosecutor
Afforded a wide latitude of discretion in the conduct of
preliminary investigation.
Writ of mandamus is not available to control or compel
the exercise of discretion.
It is truly a matter of discretion on the part of the
prosecutor to determine which persons appear
responsible for the commission of the crime. If he finds
one to be liable, it is his duty to prosecute him for the
same.
However, if the evidence is sufficient and the
prosecutor refuses to file the information, he abuses
his discretion.
CRIMINAL JURISDICTION OF COURTS
CRIMINAL JURISDICTION OF MTC, MCTC, MeTC
MUNICIPAL TRIAL COURTS
EXCLUSIVE ORIGINAL
Exclusive original jurisdiction over all violation of city or
municipal ordinances committed within their respective
territorial jurisdiction.
Exclusive original jurisdiction over all offenses
punishable with imprisonment not exceeding 6 years,
regardless of the amount of fine.
TN: The rule in disregarding the amount of the fine
does not apply when the offense is punishable by fine
only
Exceptions: Cases falling within the exclusive
jurisdiction of the RTC and of the Sandiganbayan.
Examples:
1. Libel – RTC (Art 360 RPC)
2. Bribery – Sandiganbayan (PD 1606)
Where the only penalty is a fine – amount shall
determine the jurisdiction of the court (MTC – not more
than P4,000)
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

Exclusive jurisdiction over offenses involving damage

to property through criminal negligence CRIMINAL JURISDICTION OF THE SANDIGANBAYAN

Violations of the BP22

RULES TO DETERMINE JURISDICTION OF
Special jurisdiction to decide on applications for bail in SANDIGANDABAYAN
criminal cases in the absence of all RTC judges in a
province or city Determine if the offense charged is under Sec 4 (a)
Election offenses (e.g. failure to vote, failure to vote)
If yes, determine the position held by the public officer
If exclusively listed under Sec 4 (a) – Sandiganbayan
SUMMARY PROCEDURE
If not, look at the salary grade:
If 27 and above – Sandiganbayan
A. Violations of traffic laws, rental law and
If below 27 – MTC
municipal and city ordinances
B. All other criminal cases where penalty does not
If no, determine if the offense was committed in relation to
exceed 6 months, or a fine not exceeding
his office
P1,000, or both, irrespective of other imposable
penalties If not – MTC
If yes, determine if public official is listed in Sec 4 (a)
C. Damage to property through criminal negligence
If yes – Sandiganbayan
where the imposable fine does not exceed
If no, determine salary grade:
P10,000
If 27 and above – Sandiganbayan
If below 27 – regular courts
CRIMINAL JURISDICTION OF REGIONAL TRIAL COURTS OFFENSES
Jurisdiction is set by PD 1606 as amended

REGIONAL TRIAL COURTS Offenses under Sec 4 a

Exclusive criminal cases not within the exclusive
jurisdiction of any court, except those under the
jurisdiction of Sandiganbayan.
Appellate jurisdiction over all cases decided by the
MTC
Special jurisdiction to handle exclusively criminal cases
as designate by the Supreme Court
Jurisdiction over criminal cases under special laws
A. Written defamation – Art 360 RPC
B. Comprehensive Dangerous Drugs Act – RA
9165
C. Intellectual property rights – RA 8293)
D. The subdivision and condominium buyers'
protective decree – PD 957
Money laundering cases (except if committed by public
officers and private persons in conspiracy with the
former – Sandiganbayan)
Jurisdiction of the RTC sitting as a Family Court
Accused is below 18 years old
One or more of the victims is a minor at the time of the
commission of the offense
Cases against minors cognizable under the Dangerous
Drugs Act, as amended.
Cases of VAWC
Violations of the Anti-Graft and Corruption Practices
Act
Violations of RA No. 1379 or the Anti-Forfeiture Act
Bribery and Corruption of Public Officers
Offenses under Sec 4 b
Other offenses of felonies committed by the public officials and
employees mentioned in subsection “a”, in relation to his office.
Offenses under Sec 4 c
Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A issued in 1986.
Take note: Sandiganbayan also exercises civil jurisdiction
POSITIONS
(Permanent or interim at the time of commission)
1. Officials of the executive branch occupying the position of
regional director and higher (should have a salary grade of
27 or higher)
Take note: Those listed from a-g need not have a SG of 27
or up
a. Provincials governors, vice-governors, members of the
provincial council, city treasurer, assessors, engineers,
and other city department heads
b. Officials of the diplomatic service occupying the
position of consul and higher

c. Philippine army and air force colonels, naval captains,

and all officers of higher ranks
d. Officers of the PNP while occupying the position of
provincial director and those holding the rank of senior
superintendent or higher

4|U NIV ERSI TY OF SA N CA R LOS

CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
e. City and provincial prosecutors and their assistants,
and officials and prosecutors in the Office of the
Ombudsman and special prosecutor
f. Presidents, directors of trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations
2. Members of Congress and officials thereof classified as
Grade 27
3. Members of the Judiciary without prejudice to the provisions
of the Constitution
4. Chairmen and members of Constitutional Commissions
(COMELEC, COA, CSC) without prejudice to the provisions
of the Constitution
5. All other national and local officials classified as Grade
27 and higher (In other words, even if the position is not
among listed, so long as the salary grade is 27 or above,
Sandiganbayan can have jurisdiction)
Example: An RTC clerk even though not a member of the
Judiciary can still be under the jurisdiction of the
Sandiganbayan if their salary grade is 27 or higher.
APPELLATE JURISICTION OF SANDIGANBAYN
1. Exclusive appellate jurisdiction over final judgments,
resolutions or orders of RTC
2. Exclusive jurisdiction over petitions for the issuance of
the writs of mandamus, prohibition, certiorari, habeas
corpus, injunctions, in aid of its appellate
jurisdiction.
3. Quo warranto petitions arising in cases filed under
Executive Order Nos. 1, 2, 14 and 14-A. Provided, that
the jurisdiction is not exclusive to the Supreme Court
OFFICIALS NEEDING A SALARY GRADE OF 27 OR HIGHER
The law mentions salary grade 27 only in relation to the following
officials:
1. Officials of the executive branch, occupying the
position of regional director and higher
2. Members of Congress or officials thereof
3. All other national and local officers not enumerated in
a-g
Take note: Officials listed in letters a-g are subject to the
jurisdiction of the Sandiganbayan, regardless of salary grade.
OFFENSES COMMITTED IN RELATION TO THE OFFICE
A. The offense cannot exist without the office (e.g. direct
bribery, malversation of public funds)
B. Even if the position is not an essential ingredient of the
offense charged, provided that the information avers
the intimate connection between the office and the
offense
ANTI-MONEY LAUNDERING CASES
The money-laundering cases committed by public officers and
private persons who are in conspiracy with such public officers.
FORFEITURE CASES
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A forfeiture case under RA 1379 arises out of a cause of action
separation and different from a plunder case.
Take note: Crime of plunder does not absorb forfeiture cases
Plunder – what is sought to be established is the
commission of the criminal acts in furtherance of the
acquisition of ill-gotten wealth.
Forfeiture case – all that needs to be determined by
preponderance of evidence is the disproportion of
respondent’s properties to his legitimate income, it being
unnecessary to prove how he acquired such properties.
POWERS, FUNCTIONS & DUTY OF OMBUDSMAN
1. Investigate and prosecute any act or omission of any public
officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or
inefficient.
2. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the
investigation of such cases. (The Ombudsman Act of 1989,
REPUBLIC ACT NO. 6770)
JURISDICTION OF THE COURT OF APPEALS
A. ORIGINAL
I. EXCLUSIVE
A. Actions for annulment of judgments of the
Regional Trial Court
B. Crimes of Terrorism under Human Security Act of
2007
II. CONCURRENT
A. With the Supreme Court:
a. Petitions for certiorari, prohibition and
mandamus against the Regional Trial Court
B. With the Supreme Court & Regional Trial Court:
a. Petitions for certiorari, prohibition and
mandamus against the Municipal Trial Court
B. EXCLUSIVE APPELLATE
II. BY APPEAL
A. From the RTC in cases commenced therein,
except those appealable directly to the Supreme
Court or the Sandiganbayan
III. BY PETITION FOR REVIEW
A. From the Regional Trial Court in cases appealed
thereto from the lower courts and not appealable
to the Sandiganbayan.
JURISDICTION OF THE SUPREME COURT
A. ORIGINAL JURISDICTION
I. EXCLUSIVE
Petitions for certiorari, prohibition and mandamus
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
against the Court of Appeals & the Sandiganbayan
II. CONCURRENT
A. With the Court of Appeals:
a. Petitions for certiorari, prohibition and
mandamus against the Regional Trial Court
B. With the Court of Appeals & the Regional Trial
Court
a. Petitions for certiorari, prohibition and
mandamus against the Municipal Trial Court
C. With the Sandiganbayan:
a. Petitions for mandamus, prohibition certiorari,
habeas corpus, injunctions and ancillary writs
in aid of its appellate jurisdiction;
b. Petitions for quo warranto arising from
Executive Order #s 1, 2, 14 & 14 – A
B. APPELLATE JURISDICTION
I. BY APPEAL
A. From the Regional Trial Court:
a. In all criminal cases involving offenses for
which the penalty is reclusion perpetua or life
imprisonment;
b. Those involving other offenses which,
although not so punished, arose out of the
same occurrence or which may have been
committed by the accused on the same
occasion.
II. Automatic Review in criminal cases where death
penalty is imposed.
III. BY PETITION FOR REVIEW ON CERTIORARI
A. From the Court of Appeals;
B. From the Sandiganbayan; and
C. C. From the Regional Trial Court where only an
error or question of law is involved
PP vs. Mateo (2004)
SC held that while the Fundamental Law requires a mandatory
review by the SC of cases where the penalty imposed is
reclusion perpetua, life imprisonment or death, nowhere
however, has it proscribed an intermediate review. If only to
ensure utmost circumspection before the penalty of reclusion
perpetua, life imprisonment or death is imposed, the Court now
deems it wise and compelling to provide in these cases a review
by the CA before the case is elevated to the SC. A prior
determination by the CA on, particularly, the factual issues,
would minimize the possibility of an error of judgment. If the CA
should affirm the penalty of reclusion perpetua, life
imprisonment or death, it could then render judgment imposing
the corresponding penalty as the circumstances so warrant,
refrain from entering judgment and elevate the entire records of
the case to the SC for final disposition.
JURISDICTION OF THE MILITARY COURTS
OLAGUER DOCTRINE (1987)
A military commission cannot take jurisdiction over civilians.
6|U NIV ERSI TY OF SA N CA R LOS
Exceptions:
1. No functioning civil courts
2. In times of war
Take note: Prior to 1987, decisions of military tribunals over
civilians is valid and binding. (Olaguer doctrine is prospective in
application)
Can the civilian question the military tribunal prior to 1987?
Yes, on the ground of serious violation of his constitutional right.
What is the meaning of regular courts?
They refer to civil courts, as opposed to military courts or court
martial.
JURISDICTION OVER AFP AND OTHER MILTARY
PERSONNEL
General rule: Regular courts have jurisdiction.
Exception: If before the arraignment, it was found out that the
offense was service-connected – court martial has jurisdiction
Exception to the exception: If the President of the Philippines
would insist that it be tried in regular courts.
A Military coronel was charged in violation of Anti-Graft and
Corrupt Practices Act. Which court has jurisdiction?
Sandiganbayan. If service-connected, court martial.
SUMMARY PROCEDURE IN CRIMINAL CASES
SUMMARY PROCEDURE IN CRIMINAL CASES
The MTCs, MTCCs, MCTCs shall have jurisdiction over cases
falling under summary procedure committed within their
jurisdiction:
A. Violations of traffic laws, rules and regulations
B. Violations of rental law and BP22
C. Violations of municipal and city ordinances
D. All other criminal cases where penalty does not exceed
6 months, or a fine not exceeding P1,000, or both,
irrespective of other imposable penalties
E. Damage to property through criminal negligence where
the imposable fine does not exceed P10,000
How is a criminal case filed under summary procedure?
GR: Either by complaint or information.
XPN: In Metro Manila and other chartered cities – filing shall be
by information
Complaint or information shall be accompanied by the
affidavits of the complainant and his witness in such
number of copies as there are accused, plus 2 copies
for court’s files.
Shall be complied within 5 days from the filing of the
case. (Sec. 11)
What happens if the court finds no cause to hold the
accused for trial?
The court shall order the dismissal of the case. (Sec. 13)
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
What about if the court finds ground to hold the accused for
trial?
The court shall set the case for arraignment and trial. (Sec. 13)
Before conducting the trial, what should be done by the
court?
The court shall call the parties to a preliminary conference,
during which the following may be done:
A. Entering into a stipulation of facts
B. Considering the propriety of allowing the accused to
enter a plea of guilty to a lesser offense
C. Other matters to clarify the issues and to ensure a
speedy disposition of the case (Sec. 14)
Can the admission made by the accused during the
preliminary conference be used against him?
Yes, provided it is reduced to writing and signed by the accused
and his counsel. (Sec. 14)
Is an actual direct examination of the witnesses required
during trial?
No, because the affidavits submitted shall constitute their direct
testimonies. However, the witnesses may be subjected to a
cross-examination, re-direct or re-cross. (Sec. 15)
Is the court mandated to arrest the accused?
No, except where the ground is his failure to appear when
required by the court. (Sec. 16)
When should the summary judgment be promulgated?
Not later than 30 days after the termination of the trial. (Sec. 17)
What are the prohibited pleadings, motions and petitions in
summary procedure?
1. Motion to quash the complaint or information, except if
the ground is lack of jurisdiction over the case or failure
to comply with the barangay conciliation proceedings
2. Motion for bill of particulars
3. Motion for new trial or for consideration of judgment or
for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings, affidavits,
etc.
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition against
any interlocutory order issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions
WHEN DOES THE RULES OF CRIMINAL PROCEDURE
COME INTO OPERATION?
INITIAL CONTACT
No matter how or against whom the offense is committed, the
mere commission of a crime does not automatically trigger the
application of the rules of criminal procedure.
When do the rules of criminal procedure come into
operation?
7|U NIV ERSI TY OF SA N CA R LOS
When acts are initiated that would put the offender in contact
with the law – when the criminal act is brought to the attention
of duly constituted authorities.
Examples:
1. Offended part may file a written complaint before the
barangay
2. In certain cases, file a complaint directly with the MTC
3. When law enforcers search a place and seize goods
4. When offender is arrested in flagrante delicto or by
virtue of a hot pursuit
Are there violations of laws or ordinances which require
compliance with the barangay conciliation proceedings?
Yes, as provided under the LGC. Compliance will set in motion
the initial contact of the parties with the criminal justice system.
Does the filing of an action with the barangay suspend the
running of the prescriptive period?
Yes, but only for 60 days.
Do all cases require barangay conciliation?
No. When the penalty is at least 4 years, 2 months and 1 day, a
barangay conciliation is not needed.
Can the offended party go directly to court to file a criminal
action?
No. Before a complaint is filed in court, there should have been
a confrontation between the parties before the Lupon chairman.
The Lupon secretary must certify that no conciliation or
settlement was reached, attested to by the Lupon chairman.
The complaint may also be filed if the settlement is repudiated
by the parties.
Are there exceptions when the parties may go directly to
court?
1. Where the accused is under detention
2. Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings
3. Where actions are coupled with provisional remedies
4. Where the action may be barred by the statute of
limitations
When are amicable settlements not allowed?
1. Where one party is the government
2. Where one party is a public officer or employee and the
dispute relates to the performance of his official
functions
3. Offenses punishable by imprisonment exceeding 1
year or a fine exceeding P5,000
4. Where there is no private offended party
5. Where the dispute involves real properties located in
different cities or municipalities
6. Disputes involving parties who reside in different
barangays, cities, or municipalities
7. Other cases which the President may determine in the
interest of justice or upon the recommendation of the
Secretary of Justice.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

EFFECT OF THE INSTITUTION ON THE PRESCRIPTIVE

CHAPTER II. PROSECUTION OF OFFENSES (RULE 110) PERIOD

General rule: The institution of the criminal action shall

interrupt the period of prescription of the offense.
INSTITUTION OF CRIMINAL ACTIONS
Exception: Unless otherwise provided in special laws.

What is the effect of the institution of the criminal action on

CRIMINAL ACTIONS the period of prescription of the offense?
The institution of the criminal action shall interrupt the running of
the period of prescription of the offense unless otherwise
PURPOSE OF CRIMINAL ACTION provided in special laws. The rule does not apply to violations
To determine the penal liability of the accused and if he be found of municipal ordinances and special laws. The prescriptive
periods for violations of special laws are interrupted only by the
guilty, to punish him for it.
institution of judicial proceedings for their investigation and
Parties of the action: punishment, while violations of municipal ordinances prescribe
People of the Philippines and the accused. after two months.
People v. Bautista
Take note: The offended party is merely a witness of the state.
The filing of the complaint with the fiscal’s office suspends the
running of the prescriptive period and it remains tolled from the
Distinguish “institution” from “commencement” of an
time the complaint was filed until such time that respondent is
action.
either convicted or acquitted.
For offenses which require a preliminary investigation, the
criminal action is instituted by filing the complaint for preliminary
Francisco v. Court of Appeals
investigation. The criminal action is commenced when the
The filing of the complaint in the MTC, even if it be merely for
complaint or information is filed in court.
purposes of preliminary investigation or examination interrupts
HOW CRIMINAL ACTIONS ARE INSTITUTED
the period of prescription, even if the court where the complaint
It would depend whether or not the offense requires preliminary
or information was filed cannot try the case on its merits.
investigation.
RULE ON PRESCRIPTION FOR VIOLATIONS OF SPECIAL
If preliminary investigation is required LAWS AND MUNICIPAL ORDINANCES
File the complaint with the office of the prosecutor for
the purpose of conducting the requisite preliminary RA No. 3326
investigation Law which governs the period for prescription for violations
penalized by special acts and municipal ordinances.
If preliminary investigation is not required –
A. File the complaint or information directly with the
MTC Penalty/Crime Prescriptive period
B. File the complaint with the office of the prosecutor
Only fine, imprisonment for not more
After 1 year
DIRECT FILING than 1 month, or both
In Regional Trial Courts and Metropolitan Trial Court of Manila Imprisonment for more than 1 month
After 4 years
and other chartered cities but less than 2 years
Imprisonment for 2 years or more
How are criminal actions in Manila and other chartered After 8 years
but less than 6 years
cities instituted?
Imprisonment for 6 years or more 12 years
A special rule applies in this case. No direct filing is allowed.
Complaint shall be filed with the office of the prosecutor, unless Treason 20 years
otherwise provided in their charters. Offenses against any law
After 5 years
administered by the Bureau of
Can there be direct filing of an information or complaint
Internal Revenue
with the RTC?
NO, because the jurisdiction of RTC covers offenses which Violations of municipal ordinances After 2 months
require preliminary investigation. (RTC’s jurisdiction – more than
6 years) Violations of municipal ordinances
When is preliminary investigation required?
Zaldivia v. Reyes
When the penalty is at least 4 years, 2 months and 1 day. In cases involving violations of municipal ordinances, the period
of prescription shall be suspended only when judicial
In case of conflict between a city charter and a provision
proceedings are instituted.
of the Rules, which shall prevail?
The charter should prevail, being a substantive law.
Jade Wei Parking Systems Corp case
In cases of violations of ordinances – file with the MTC within 2
months. Otherwise, crime will prescribe.

8|U NIV ERSI TY OF SA N CA R LOS

CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
Violations of special laws
Sanrio Company Limited v. Lim
Prescriptive period for violation of special laws is interrupted by
the institution of proceedings against respondent.
People v. Pangilinan
There is no more distinction between cases of RPC and
special law with respect to the interruption of prescriptive
period. Preliminary investigation interrupts the prescription.
Sec v. Interport Resources Corporation
The filing of a complaint for purposes of preliminary
investigation, interrupts the period of prescription of criminal
responsibility.
An administrative investigation made by an administrative body
like the SEC will toll the prescriptive investigation because they
are equivalent to preliminary investigation.
Take note:
In violations of municipal ordinances – only judicial
proceedings can interrupt the prescriptive period (Zaldivia
case)
In violations of special laws – both administrative and
judicial proceedings interrupt the prescriptive period
PROSECUTION OF THE CRIMINAL ACTION
WHO MUST PROSECUTE THE CRIMINAL ACTION
Who must prosecute the criminal action?
General Rule: All criminal actions commenced by the filing of a
complaint or information shall be prosecuted under the direction
and control of the prosecutor.
Exception:
However, in the Municipal Trial Courts and Municipal Circuit Trial
Courts, if the prosecutor is not available, the offended party,
any peace officer, or other officer charged with the enforcement
of the law violated may prosecute.
This authority ceases upon actual intervention by a prosecutor
or upon elevation of the case to the RTC.
A criminal action is prosecuted under the direction and control
of the public prosecutor, even if there is a private prosecutor.
Rationale: Since a criminal offense is an outrage against the
sovereignty of the State hence a representative of the State shall
direct and control the prosecution thereof.
What are the powers and discretion of the public
prosecutor?
1. Determine whether a prima facie case exists
2. Decide which of the conflicting testimonies should be
believed
3. Determine which witnesses to present in court
4. Determine what case to file and whom to prosecute
9|U NIV ERSI TY OF SA N CA R LOS
Can the public prosecutor turn over the actual prosecution
of the criminal case to the private prosecutor?
Yes, but he may at any time take over the actual conduct of the
trial.
Pinote v. Ayco
The presence of a public prosecutor in the trial of criminal case
is necessary to protect vital state interests. Hence, the act of
allowing the presentation of defense witnesses in the absence
of the public prosecutor is a clear transgression.
Can the Supreme Court order the prosecution against
whom the prosecutor does not find sufficient evidence to
support at least a prima facie case?
No, except when there is an unmistakable showing of grave
abuse of discretion on the part of the prosecutor. But before filing
for mandamus to compel a fiscal to include another co-accused
in the information, the party must first avail himself of other
remedies such as the filing of a motion for inclusion.
To whom should you appeal the decision of the prosecutor?
The decision of the prosecutor may be modified by the Secretary
of Justice or in special cases by the President of the Philippines.
(See. Discussion on Remedies under Rule 112, infra.)
Is the prosecutor required to be physically present in the
trial of a criminal case?
According to People v. Beriales (1976 case), he should be
present. If he is not physically present, it cannot be said that the
prosecution was under his direction and control.
But in People v. Malinao and Bravo v. CA, it was held that the
proceedings are valid even without the physical presence of the
Fiscal who left the prosecution to the private prosecutor under
his supervision and control.
After the case is filed in court, to whom should a motion to
dismiss be addressed?
Once the information is filed in court, the court acquires
jurisdiction. Whatever disposition the prosecutor may feel
should be proper in the case thereafter should be addressed for
the consideration of the court, subject only to the limitation that
the court should not impair the substantial rights of the accused
or the right of the people to due process.
Where should a motion for reinvestigation be filed?
After a complaint or information has already been filed in court,
a motion for reinvestigation should be addressed to the trial
judge and to him alone. (See. Discussion under Rule 112, infra.)
How is criminal action prosecuted in the MTC?
Under the direction and control of the public prosecutor.
However, when he is not available, the action may be
prosecuted by?
A. Offended party
B. Any peace officer
C. Public officer charged with the enforcement of the law
violated
How are violations of special laws prosecuted?
Pursuant to the provisions of said law.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
PROSECUTION OF PRIVATE CRIMES
What is a private crime?
Private offenses are those which cannot be prosecuted except
upon complaint filed by the aggrieved party. Strictly speaking,
there is no such thing as a private offense since all offenses are
an outrage against the State. They are denominated as private
offenses only to give deference to the offended party who may
prefer not to file the case instead of going through the scandal
of a public trial.
What are the crimes that must be prosecuted upon
complaint of the offended party?
1. Adultery and concubinage
2. Seduction, abduction, acts of lasciviousness
3. Defamation which consists in the imputation of an
offense mentioned above
After a complaint for a private crime has been filed in court,
what is the effect of pardon by the offended party?
The pardon by the offended party will not have any effect on the
prosecution of the offense. Once a complaint has been filed in
court, jurisdiction over the offense will be acquired and will
continue to be exercised by the court until termination of the
case.
What is the meaning of the statement that compliance with
the rule is jurisdictional?
This means that the complaint filed by the offended party is what
starts the prosecution, without which the courts cannot exercise
their jurisdiction. Compliance with the rule does not confer
jurisdiction because it is the law which confers jurisdiction upon
the courts.
Can the father file a complaint on behalf of his daughter for
concubinage?
No. The rule allowing the parents, grandparents, and guardians
to file a complaint on behalf of the minor applies only to the
offenses of seduction, abduction, and acts of lasciviousness. A
complaint for adultery or concubinage may be filed only by the
offended spouse.
If the offended party in abduction, seduction, and acts of
lasciviousness is of age, can her parents file the complaint
for her?
No. If the offended party is already of age, she has the exclusive
right to file the complaint unless she becomes incapacitated.
The parents, grandparents, and guardian only have exclusive,
successive authority to file the case if the offended party is still
a minor.
If the offended party dies during the pendency of the case,
is the criminal liability of the accused extinguished?
No.
X filed a sworn complaint for acts of lasciviousness before
the prosecutor. Before the prosecutor could file the case in
court, X died. Can the prosecutor still file the information
in court?
Yes. The desire of X to file the case is evident by her filing of
her sworn complaint with the prosecutor.
10 | U N I V E R S I T Y O F S A N C A R L O S
An information for robbery with rape was filed against X. X
moved to dismiss the information on the ground that there
was no complaint filed by the offended party. Should the
case be dismissed?
No. In robbery with rape, the complaint of the offended party is
not necessary since the offense of robbery is not a private
offense. The prosecution can be commenced without the
complaint of the offended party.
INTERVENTION OF THE OFFENDED PARTY IN THE
PROSECUTION OF THE CRIMINAL ACTION
INTERVENTION OF THE OFFENDED PARTY
What is Article 100 of the RPC?
Every person criminally liable for a felony is also civilly liable.
What does civil liability include?
1. Restitution
2. Reparation
3. Indemnification for damages
Can the offended party intervene in the prosecution of the
criminal action?
Yes, except if he has waived, has reserved his right, or has
already instituted the criminal action. The reason for this rule is
because of Article 100 of the RPC which provides that every
person criminally liable shall also be civilly liable and also
because there are certain offenses which cannot be prosecuted
except upon complaint of the offended party.
What is the reason why the offended party is allowed to
intervene in the prosecution of the offense?
It is because of the existence of a civil liability. Hence, if there is
no civil liability, the intervention of the offended party through his
counsel or private prosecutor cannot be allowed.
Is the civil action impliedly instituted with the criminal
action?
Yes, except when:
1. Waived
2. Reserved
3. Instituted prior
Can the Offended Party intervene in the prosecution of the
criminal action even if there is no civil liability?
Yes. The offended party, who has neither reserved, waived, nor
instituted the civil action may intervene, and such right to
intervene exists even when no civil liability is involved. (Paul Lee
v. Chin Lee citing Lim Tek Goan v. Yatco)
Do the offended parties have the right to move for the
dismissal of a case?
No. The right belongs only to the government prosecutor who
is the representative of the plaintiff.
Can the offended party file a civil action for certiorari in his
own name if the RTC dismisses an information?
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

Yes. In case of grave abuse of discretion amounting to lack of A sworn written complaint is required if the offense is one which
jurisdiction, the petition may be filed by the offended party cannot be prosecuted de officio, or is private in nature
because the offended party has an interest in the civil aspect of (adultery, concubinage, abduction, seduction, acts of
the case. lasciviousness, defamation consisting in the imputation of any
of the above offenses), or where it pertains to those cases which
need to be endorsed by specific public authorities (Anti-
THE COMPLAINT AND INFORMATION Dummy Board with respect to the Anti-Dummy Law, National
Water and Air Pollution Control Commission with respect to the
Anti-Pollution Law).
What is a complaint?
A complaint is a sworn written statement charging a person with What is an information?
an offense, subscribed by the offended party, any peace officer, An information is an accusation in writing charging a person with
or other public officer charged with the enforcement of the law an offense, subscribed by the prosecutor and filed with the court.
violated.
What is the difference between a complaint and an
If the complaint is not sworn to by the offended party, is it information?
void?
No. A complaint presented by a private person when not sworn COMPLAINT INFORMATION
to by him is not necessarily void. The want of an oath is a mere May be signed by the Always signed by
defect of form which does not affect the substantial rights of the offended party, any prosecuting officer
defendant on the merits. peace officer, or other
public officer charged
Who may file a complaint? with the enforcement
The complaint may be filed by the offended party, any peace of the law violated
officer, or other public officer charged with the enforcement of Sworn to by the Need not be under oath
the law violated. person signing it since the prosecuting
officer filing it is already
If the offended party dies before he is able to file a acting under his oath of
complaint, can his heirs file it in his behalf? office
No. The right to file a criminal action is personal and abates May be filed either Always filed with the
upon the death of the offended party. It is not transmissible to with the office of the court
the heirs. prosecutor or with the
court
Can you file a criminal complaint against a juridical person?
No, a criminal action cannot lie against a juridical person. It the When is a complaint or information deemed sufficient?
corporation violates the law, the officer, through whom the A complaint or information is sufficient if it states:
corporation acts, answers criminally for his acts.
1. the name of the accused
What is the form required for the complaint or information? 2. the designation of the offense given by the statute
The complaint or information shall be in writing, in the name of 3. the acts or omissions complained of as constituting the
the People of the Philippines and against all persons who offense
appear to be responsible for the offense involved. 4. the name of the offended party
5. the approximate date of the commission of the offense
Why should a complaint or information be in the name of 6. the place of the commission of the offense
the People of the Philippines?
Criminal actions must be commenced in the name of the People When is the error in the name of the accused not fatal to an
because just as a crime is an outrage against the peace and information?
security of the people at large, so must its vindication be in the Error in the name of the accused will not nullify the information
name of the People. However, it the action is instituted in the if it contains sufficient description of the person of the accused.
name of the offended party or of a particular city, the defect is
merely of form and may be cured at any state of the trial. When should the error in the name or identity be raised by
the accused?
Why should the complaint or information be in writing? The error should be raised before arraignment, or else it is
The complaint or information should be in writing so that the deemed waived.
court has a basis for its decision, to inform the accused of the
nature and cause of the accusation to allow him to present his X was charged with homicide. Can he be possibly be
defense, and so that nobody will forget the charge, given the convicted of murder?
fallibility of human memory. Yes. If the recitals in the complaint or information of the acts
and omissions constituting the offense actually allege murder, X
Who is the “offended party”? can be convicted of murder. This is because it is the recital of
The offended party is the person actually injured or whose facts and not the designation of the offense that is controlling.
feeling is offended. He is the one to whom the offender is also
civilly liable under Article 100 of the RPC.
X was charged with estafa, but the recital of facts actually
When is a complaint required? alleges theft. Can X be convicted of theft?
11 | U N I V E R S I T Y O F S A N C A R L O S
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
Yes, because it is the recital, not the designation of the offense
that is controlling.
X was charged with estafa, and the recital of facts allege
estafa. Can X be convicted of theft?
No. The two crimes have elements that are different from each
other. To convict X of theft under an information that alleges
estafa would violate his right to be informed of the nature and
cause of the accusation against him.
X was charged with rape committed through force and
intimidation. Can he be convicted of rape where the woman
is deprived of reason or is otherwise unconscious?
No. Where the law distinguishes between two cases of violation
of its provision, the complaint or information must specify under
which of the two cases the defendant is being charged.
In what case can an accused not be convicted of a crime
different from that designated in the complaint or
information even if the recitals allege the commission of the
crime?
If it involves:
1. a change of the theory of the trial
2. requires of the defendant a different defense
3. surprises the accused in any way
X was accused of illegal possession of firearms, but the
information did not allege that X did not have any license to
possess the firearm. Is the information valid?
No. The absence of the license is an essential element of the
offense. Therefore, it should be alleged in the complaint or
information.
X was charged with illegal possession of opium. X
contends that the information was invalid for failure to
allege that he did not have a prescription from a physician.
Is X correct?
No. The absence of the prescription is not an essential element
of the offense and is only a matter of defense. It need not be
alleged in the information.
What are the offenses in which the particular place where
the offense was committed is essential?
1. Violation of domicile
2. Penalty on the keeper, watchman, visitor of opium den
3. Trespass to dwelling
4. Violation of election law (prohibiting the carrying of a
deadly weapon within a 30-meter radius of polling
places)
What are the offenses in which the time of the commission
of the offense is essential?
1. Infanticide
2. Violation of Sunday Statutes (Election Law)
3. Abortion
In what case is the name of the offended party dispensable?
In offenses against property, the name of the offended party may
be dispensed with as long as the object taken or destroyed is
particularly described to property identify the offense.
In what cases is the name of the offended party
indispensable?
Slander, robbery with violence or intimidation.
12 | U N I V E R S I T Y O F S A N C A R L O S
What is the rule on duplicity of offenses?
A complaint or information must charge only one offense, except
when the law provides only one punishment for various offenses
(compound and complex crimes under Art. 48 of the RPC and
special complex crimes).
What is the effect of the failure of the accused to object to
a duplicitous information?
If the accused fails to object before arraignment, the right is
deemed waived, and he may be convicted of as many offenses
as there are charged.
X fired his gun once, but the bullet killed two persons. He
was charged with two counts of homicide in one
information. Can he be convicted under that information?
Yes. It falls under the exception to the rule. This is a compound
crime in which one act results in two or more grave or less grave
felonies. The law provides only one penalty for the two offenses.
X was charged with both robbery and estafa in one
information. Can he be convicted of both offenses?
It depends. If he objects to the duplicitous information before
arraignment, he cannot be convicted under the information. But
if he fails to object before arraignment, he can be convicted of
as many offenses as there are in the information.
What is the principle of absorption?
In cases of rebellion, other crimes committed in the course of
the crime are deemed absorbed in the crime of rebellion either
as a means necessary for its commission or as an unintended
effect of rebellion. They cannot be charged as separate
offenses in themselves. The exception is when the common
crimes are committed without any political motivation. In such a
case, they will not be absorbed by rebellion.
X was speeding on a highway when his car collided with
another car. The other car was totally wrecked and the
driver of the other car suffered serious physical injuries.
How many informations or complaints should be filed
against X?
Only one information should be filed for serious physical injuries
and damage to property through reckless imprudence. The
information against X cannot be split into two because there was
only one negligent act resulting in serious physical injuries and
damage to property.
Same case, but the injuries suffered by the driver were only
slight physical injuries. How many informations should be
filed?
Two informations – one for the slight physical injuries and the
other for damage to property. Light felonies cannot be
complexed.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
AMENDMENT OR SUBSTITUTION OF THE COMPLAINT OR
INFORMATION
AMENDMENT
When can a complaint or information be amended?
BEFORE PLEA, a complaint or information can be amended in
form or in substance without leave of court.
EXCEPT if the amendment will downgrade the offense or
drop an accused from the complaint or information. In such
a case, the following requisites must be observed:
1. must be made upon motion of the prosecutor
2. with notice to the offended party
3. with leave of court
4. the court must state its reason in resolving the motion
5. copies of the resolution should be furnished all parties,
expecially the offended party
AFTER PLEA, only formal amendments may be made only with
leave of court and when it can be done without causing prejudice
to the rights of the accused.
EXCEPT:
1. Substantial Amendment is beneficial to the accused.
2. Doctrine of supervening event.
TEST TO DETERMINE SUBSTANTIAL AMENDMENT
1. Is it beneficial to the accused? If yes, allowed.
2. Will it be prejudicial to the rights of the accused? (defense
cannot be sustained, evidence gathered cannot be used
in the new information)
When are the rights of the accused prejudiced by an
amendment?
1. When a defense which he had under the original
information would no longer be available
2. When any evidence which he had under the original
information would no longer be available
3. When any evidence which he had under the original
information would not longer be applicable to the
amended information
What are substantial amendments?
After plea, substantial amendments are prohibited. These are
amendments involving the recital of facts constituting the
offense and determinative of the jurisdiction of the court. All
other matters are merely of form.
Is an additional allegation of habitual delinquency and
recidivism a substantial amendment?
No. These allegations only relate to the range of the imposable
penalty but not the nature of the offense.
IOW, Changing the specific averments in the information for
purposes of determining the proper crime or the jurisdiction of
the court.
13 | U N I V E R S I T Y O F S A N C A R L O S
Is an additional allegation of conspiracy a substantial
amendment?
Yes because it changes the theory of the defense. It makes the
accused liable not only for his own acts but also for those of his
co-conspirators. (Old J. Sabio answer)
The new answer is: No, it is not a substantial amendment in the
following example: X is charged with murder as principal. Later,
the complaint is amended to include two other persons who
allegedly conspired with X. Can X invoke double jeopardy on
the ground that the amendment is substantial? No. The
amendment is merely a formal amendment because it does not
prejudice the rights of X, who was charged as a principal to
begin with.
Is a change in the items stolen by the accused a substantial
amendment?
Yes because it affects the essence of the imputed crime and
would deprive the accused of the opportunity to meet all the
allegations in preparation of his defense.
Is a change in the nature of the offense due to supervening
event a substantial amendment?
No, it is merely a formal amendment.
Estafa in RPC and Estafa in BP22
Substantial amendment
SUBSTITUTION
When can a complaint or information be substituted?
A complaint or information may be substituted if at any time
before judgment, it appears that a mistake has been made in
charging the proper offense, and the accused cannot be
convicted of the offense charged or of any other offense
necessarily included therein, provided that he will not be placed
in double jeopardy.
Rules in substitution
1. No substitution if there is already a final judgment
2. No substitution if double jeopardy will attach.
3. No substitution if accused can be convicted of the
crime charged
4. No substitution if the offense charged is necessarily
include or necessarily includes the offense originally
charged (e.g. homicide necessarily includes physical
injuries and vice versa)
What are the distinctions between amendment and
substitution?
1. Amendment may involve either formal or substantial
changes, while substitution necessarily involves a
substantial change.
2. Amendment before plea can be effected without leave
of court, but substitution is always done with leave of
court since it involves the dismissal of the original
complaint.
3. Where the amendment is only as to form, there is no
need for a new preliminary investigation or plea; in
substitution, another preliminary investigation and plea
is required.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
4. An amended information refers to the same offense
charged or to one which necessarily includes or is
necessarily included in the original charge, hence
substantial amendments after plea cannot be made
over the objection of the accused. Substitution
requires that the new information is for a different
offense which does not include or is not necessarily
included in the original charge.
Can the judge order the prosecutor to substitute the
information?
Yes, in cases where the original information is erroneous,
provided that the substitution is done before judgment.
Can the court order the dismissal of the original complaint
before a new one is filed in substitution?
No. The court will not order the dismissal until the new
information is filed.
Accused was arraigned and pleaded not guilty for
homicide. Prosecutor wanted to amend the information to
murder, however he learned that he cannot make such
substantial amendment. Can he validly ask for
substitution?
NO. Because it would tantamount to double jeopardy since
homicide is necessarily included in the crime of murder. After
arraignment, the first jeopardy will attach.
Accused was charged for less serious physical injuries.
Evidence is for serious physical injuries. Will you ask for
substitution?
NO. Because the court can convict the accused of the crime
charged.
Can the court convict the accused for serious physical injuries?
NO, because it is not charged against the accused but accused
can be held liable for the crime charged – less serious.
Accused was charged for serious physical injuries.
Evidence is for less serious physical injuries. Will you ask
for substitution?
NO. Because double jeopardy already attached.
Can the court convict the accused for the serious physical
injuries?
The trial court cannot convict the accused for the crime charged
because the evidence is only for less serious.
Accused pleaded not guilty to frustrated homicide. Victim
died. Prosecutor moved to amend the information to
murder. Can he validly do the same?
Yes. Doctrine of supervening event.
Accused already entered his plea for Estafa BP22.
Prosecutor wanted to amend Estafa under the RPC. Can he
validly do the same?
NO. Substantial amendment.
Can the prosecutor substitute?
Yes, because there was no judgment and he cannot be
convicted for the crime charged. No double jeopardy.
14 | U N I V E R S I T Y O F S A N C A R L O S
VENUE OF CRIMINAL ACTIONS
Where should a criminal action be instituted?
a. In the court of the municipality or territory where the offense
was committed or where any of its essential ingredients
occurred (Exception: Sandiganbayan cases)
b. If committed in a train, aircraft, or other public or private
vehicle: in the court of any municipality or territory where the
vehicle passed during its trip, including the place of departure or
arrival
c. If committed on board a vessel in the course of its voyage: in
the court of the first port of entry or of any municipality or territory
where the vessel passed during the voyage, subject to the
generally accepted principles of international law
d. Crimes committed outside the Phil but punishable under
Article 2 of the RPC: any court where the action is first filed.
What is a continuing or transitory offense?
Transitory offenses are crimes where some acts material and
essential to the crimes and requisite to their commission occur
in one municipality or territory and some in another. Continuing
offenses are consummated in one place, yet by the nature of the
offense, the violation of the law is deemed continuing. Examples
are estafa, abduction, malversation, libel, kidnapping, violation
of BP22.
How do you determine jurisdiction over a continuing
crime?
The courts of the territories where the essential ingredients of
the crime took place have concurrent jurisdiction. But the court
which first acquires jurisdiction excludes the other courts.
What are the rules on venue in libel cases?
a. The criminal action for libel may be filed in the RTC of the
province or the city where the libelous article is printed and first
published.
b. If the offended party is a private individual, the criminal action
may also be filed in the RTC of the province where he actually
resided at the time of the commission of the offense.
c. If the offended party is a public officer whose office is in Manila
at the time of the commission of the offense, the criminal action
may be filed in the RTC of Manila.
d. If the offended party is a public officer whose office is outside
Manila, the action may be filed in the RTC of the province or city
where he held office at the time of the commission of the
offense.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
CHAPTER III. PROSECUTION OF CIVIL ACTION (RULE
111)
IMPLIED INSTITUTION OF THE CIVIL ACTION WITH THE
CRIMINAL ACTION
What is the general rule?
The general rule is when a criminal action is instituted, the civil
action for the recovery of the civil liability arising from the offense
charged under Article 100 of the RPC shall be deemed instituted
with the criminal action.
What are the exceptions?
The civil action is not deemed instituted in the following cases:
1. When the offended party has waived the civil action
2. When the offended party has reserved the right to
institute it separately
3. When the offended party has instituted the civil action
prior to the institution of the criminal action
What is the civil action that is deemed instituted with the
criminal action?
Only the civil action for the recovery of civil liability arising from
the offense under Article 100 of the RPC, not the independent
civil actions under Article 32, 33, 34 and 2176 of the Civil Code.
What is the dual concept of civil liability?
This means that civil liability may arise from crimes or from
quasi-delicts. Thus, a negligent act causing damage may
produce two kinds of civil liability – one arising from crime and
another from quasi-delict. The only limitation is that the offended
party may not recover twice from the same act.
What are the differences between a crime and a quasi-
delict?
1. Crimes affect public interest, while quasi-delicts are
only of private concern
2. The RPC punishes or corrects the criminal act, while
the Civil Code merely repairs the damage by means of
indemnification
3. Crimes are punished only if there is a law providing for
their punishment, while quasi-delicts include all acts
where fault or negligence intervenes. Therefore,
quasi-delict is broader in scope.
What constitutes civil liability?
According to Article 104 of the RPC, it constitutes restitution,
reparation, and indemnification for consequential damages.
What is the basis for the broader concept of civil liability?
The broader concept of civil liability means that every person
criminally liable is also civilly liable. This is because in a criminal
offense, there are two offended parties – the state and the
private offended party.
If the complaint does not contain an allegation of damages,
is the offender still liable for them?
15 | U N I V E R S I T Y O F S A N C A R L O S
Yes because every person criminally liable is also civilly liable.
This is subject to the exception when the offended party has
waived or has reserved the right to institute the civil action
separately.
Can the accused file a counterclaim, cross-claim, third-
party claim in the criminal case?
No.
What are the Rules on filing fees?
Filing fees apply when damages are being claimed by the
offended party. The following summarizes the rule on filing
fees:
1. Actual Damages
General Rule: There are no filing fees required for actual
damages claimed (Sec. l[a], Rule 111)
Exception: Unless required by the Rules.
Examples: In Batas Pambansa Big. 22 cases, the filing fees
shall be paid based on the amount of the check and shall
be paid in full ("Sec. l[b], Rule 111, Rules of Court); In estafa
cases, the filing fees shall be paid based on the amount
involved (Sec. 21[a], AM. No. 04-2-04, August 16,2004).
2. Moral, Nominal, Temperate or Exemplary damages
but other than actual damages
(a) Where the amount of such damages is specified in
the complaint or information
Filing fees shall be paid by the offended
party upon the filing of the criminal action in
court where he seeks for the enforcement
of the civil liability of the accused.
(b) Amount is not specified in the complaint or
information but, any of the damages is subsequently
awarded -
Filing fees assessed in accordance with the
Rules, shall constitute a first lien on the
judgment awarding such damages.
RESERVATION OF THE CIVIL ACTION
When should the reservation be made?
The reservation should be made before the prosecution
presents its evidence and under circumstances affording the
offended party a reasonable opportunity to make such
reservation.
What is the reason for the rule requiring reservation?
The reason is to prevent double recovery from the same act or
omission.
In a BP 22 case, can the offended party make a reservation
of the civil action?
No. The criminal action shall be deemed to include the civil
action, and the offended party is not allowed to make the
reservation. The actual damages and the filing fees shall be
equivalent to the value of the check.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
WHEN CIVIL ACTION IS SUSPENDED
When is the separate civil action suspended?
After the criminal action has been commenced, the separate
civil action arising therefrom cannot be instituted until final
judgment has been entered in the criminal action.
If the criminal action is filed after the civil action was instituted,
the civil action shall be suspended in whatever stage it may be
found before judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal action.
Nonetheless, the civil action may be consolidated with the
criminal action at any time before judgment on the merits upon
motion of the offended party with the court trying the criminal
action. The evidence presented at the civil action shall be
deemed reproduced in the criminal action without prejudice to
the right of the prosecution to cross-examine the witness
presented by the offended party in the criminal case and of the
parties to present additional evidence. The consolidated
criminal actions shall be tried and decided jointly.
Exception: When there is a prejudicial question in a previously
filed civil action, it should be resolved first.
What happens to the period of prescription if there is no
consolidation?
Where there is no consolidation of the civil action with the
criminal action and the civil action is suspended or the civil
action cannot be instituted separately until after final judgment
is rendered in the criminal action, the prescriptive period of the
civil action shall be tolled during the pendency of the criminal
action
Are the independent civil actions also deemed suspended
with the filing of the criminal action?
No. Only the civil action arising from the crime under Article 100
is suspended. The independent civil actions are not suspended
and may continue even if the criminal action has been instituted.
However, the offended party may not recover twice from the
same act. He should only get the bigger award.
What is the effect of an acquittal on the civil action?
The general rule is the civil action is not necessarily extinguished
by the acquittal of the accused. Even if the accused is acquitted,
the court can still award civil liability in the following cases:
1. When the acquittal is based on reasonable doubt
2. When there is a declaration in the decision that the
liability of the accused is only civil
3. When the civil liability is not derived from or based on
the criminal act of which the accused is acquitted.
However, if the decision contains a finding that the act from
which the civil liability may arise does not exist, the civil liability
is extinguished.
Can you compel a judge by mandamus to award civil
damages?
Yes because every person criminally liable is also civilly liable
and also because even if the accused is acquitted, there are
cases when he is still civilly liable.
16 | U N I V E R S I T Y O F S A N C A R L O S
What is the reason for allowing the civil liability to subsist
in spite of the acquittal of the accused?
This is because the parties in the criminal and civil action are
different – in the criminal action, the party is the state, while in
the civil action, the party is the private offended party. Also, the
two actions required different quantum of evidence. The
criminal action requires proof of guilt beyond reasonable doubt,
while the civil action requires mere preponderance of evidence.
Can the employer be subsidiarily liable?
Yes. The trial court need not expressly pronounce the subsidiary
liability of the employer. Nonetheless, before the employers'
subsidiary liability is enforced, adequate evidence must exist
establishing that:
1. they are indeed the employers of the convicted
employees;
2. they are engaged in some kind of industry;
3. the crime was committed by the employees in the
discharge of their duties; and
4. the execution against the latter has not been
satisfied due to insolvency.
These conditions may be determined in the same criminal action
in which the employee's liability, criminal and civil, has been
pronounced, in a hearing set for that precise purpose, with due
notice to the employer, as part of the proceedings for the
execution of the judgment.
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY
What are the independent civil actions?
The independent civil actions are those provided in Articles 32,
33, 34, and 2176 of the Civil Code. They may proceed
independently of the criminal action and shall require only a
preponderance of evidence.
What are the consequences of the independent character
of actions under Articles 32, 33, 34 and 2176 of the Civil
Code?
1. The right to bring the civil action shall proceed
independently of the criminal action (Sec. 3, Rule 111,
Rules of Court) and regardless of the results of the latter
(Article 31, Civil Code of the Philippines).
2. The quantum of evidence required is preponderance of
evidence (Sec. 3, Rule 111, Rules of Court).
3. (a) The right to bring the foregoing actions based on the
Civil Code need not be reserved in the criminal
prosecution, since they are not deemed included therein.
(b) The institution or the waiver of the right to file a
separate civil action arising from the crime charged does
not extinguish the right to bring an independent civil
action.
(c) Even if a civil action is filed separately, the ex delicto
civil liability in the criminal prosecution remains, and the
offended party may — subject to the control of the
prosecutor — still intervene in the criminal action, in order
to protect the remaining civil interest therein.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

EFFECT OF DEATH ON CIVIL ACTIONS Does suspension include dismissal?

What is the effect of the death of the accused on the
criminal and civil actions?
If the accused dies after arraignment and during the pendency
of the criminal action, both the criminal and civil liability arising
from the crime shall be extinguished. However, the independent
civil actions may be filed against the estate of the accused after
proper substitution, and the heirs of the accused may also be
substituted for the deceased.
If the accused dies before arraignment, the case shall be
dismissed, without prejudice to any civil action that the offended
party may file against the estate of the deceased.
The death of the accused during the pendency of his appeal
with the Supreme Court totally extinguished his criminal liability.
Such extinction is based on Article 89 of the Revised Penal
Code. The death of the accused likewise extinguished the civil
liability that was based exclusively on the crime for which the
accused was convicted {i.e., ex delicto), because no final
judgment of conviction was yet rendered by the time of his
death. Only civil liability predicated on a source of obligation
other than the delict survived the death of the accused, which
the offended party can recover by means of a separate civil
action
The rule authorizing the suspension of the criminal case does
not prescribe the dismissal of the criminal action. It only
authorizes its suspension. The suspension shall be made upon
the filing of a petition for suspension.
Where to file the petition for suspension?
A petition for the suspension of the criminal action may be filed
in the office of the prosecutor conducting the preliminary
investigation. When the criminal action has been filed in court
for trial, the petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests.
When is an action for annulment of marriage prejudicial to
a bigamy case?
An action for annulment of marriage is prejudicial to a bigamy
case only if the accused in the bigamy charge is also the one
asking for annulment of the second (bigamous) marriage based
on vitiation of consent. This is because in such a case, if the
court declares that the party’s consent was indeed vitiated and
annuls the marriage, then it would also mean that the party did
not willingly commit the crime of bigamy. It would thus be
determinative of the guilt or innocence of the accused.

JUDGMENT IN CIVIL ACTION NOT A BAR TO CRIMINAL

ACTION

When the defendant is absolved of civil liability in a civil

action, can a criminal action still be filed against him?
Yes. While every person criminally liable is also civilly liable, the
converse is not true. Therefore, even if the defendant is
absolved of civil liability in a civil action, a criminal action can still
be filed against him. Besides, the state is a party in a criminal
action, while only the private offended party is a party in the civil
action. Moreover, the quantum of evidence in the civil action is
only preponderance of evidence, while that required in the
criminal action is proof beyond reasonable doubt.

PREJUDICIAL QUESTION

What is a prejudicial question?

A prejudicial question is one based on a fact separate and
distinct from the crime but is so intimately related to it that it
determines the guilt or innocence of the accused.

What are the elements of a prejudicial question?

1. The previously filed civil action involves an issue
which is similar or is intimately related with an issue
raised in the subsequent criminal action
2. The resolution of the issue will determine whether or
not the criminal action may proceed.

What is the reason for the principle?

The reason behind the principle of a prejudicial question is to
avoid two conflicting decisions in the civil case and in the
criminal case.

17 | U N I V E R S I T Y O F S A N C A R L O S
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
CHAPTER IV. PRELIMINARY INVESTIGATION
NATURE OF PRELIMINARY INVESTIGATION
What is preliminary investigation?
It is an inquiry or proceeding for the purpose of determining
whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial.
Is it a trial?
No, because it does not involve the examination of witnesses by
way of direct or cross-examinations and its purpose is not to
determine whether respondent is guilty beyond reasonable
doubt.
What is the purpose of preliminary investigation?
1. To determine whether or not a crime has been
committed
2. To determine whether or not respondent is probably
guilty of the crime
What is the ultimate purpose of a PI?
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 of a public trial. Also,
to protect the State from useless and expensive prosecutions.
What is the role of a prosecutor?
To determine probable cause and to file the corresponding
information if he finds it to be so.
Take note: He does not determine the guilt or innocence of the
accused. Hence, he does not exercise adjudication nor rule-
making functions.
What is the scope of preliminary investigation?
Preliminary investigation is merely inquisitorial and it is often the
only means of discovering whether the offense has been
committed and the persons responsible for it to enable the fiscal
to prepare his complaint or information. It is not a trial on the
merits and has no purpose but to determine whether there is
probable cause to believe that an offense has been committed
and that the accused is probably guilty of it. It does not place
the accused in jeopardy.
NATURE OF PRELIMINARY INVESTIGATION
Is the holding of a PI required by the Constitution?
NO. It is not a fundamental right. It is simply a statutory right and
may be invoked only when specifically create by statute.
However, it is still a component of due process in criminal
justice. Hence, a substantive right.
Is preliminary investigation a judicial proceeding?
There are different Supreme Court decisions regarding this
matter.
Cruz v. People 1994, Sales v. Sandiganbayan 2001
18 | U N I V E R S I T Y O F S A N C A R L O S
A preliminary investigation is essentially a judicial inquiry since
there is an opportunity to be heard, the production and weighing
of evidence, and a decision rendered on the basis of such
evidence. The investigating officer acts as a quasi-judicial
officer.
Bautista v. Court of Appeals 2001
A preliminary investigation is very different from other quasi-
judicial proceedings. A prosecutor in a PI does not determine
the guilt or innocence of the accused nor does he exercise
adjudication nor rule-making functions. However, like quasi-
judicial bodies, the prosecutor is an office in the executive
department exercising powers akin to those of a court. BUT THE
SIMILARITY ENDS THERE
Santos v. Go 2005
A public prosecutor does not perform acts of a quasi-judicial
body because the latter is an organ of a government other than
a court and legislature which performs adjudicatory functions.
Whether Rule 43 is a proper mode of appeal from a resolution
of the Secretary of Justice directing the prosecutor to file an
information in a criminal case?
Take note: Rule 43 is an appeal from the judgment or resolutions
of quasi-judicial functions. Hence, there is a need to determine
whether the conduct of PI by the prosecutor is a quasi-judicial
function.
DOJ is not among the quasi-judicial agencies enumerated in
Sec 1 Rule 43. Hence, its resolution is not appealable to the CA
via petition for review under Rule 43.
Balanguan v. CA 2008
A PI is not a quasi-judicial proceeding and DOJ is not a quasi-
judicial agency when it reviews the findings of a public
prosecutor regarding the presence of probable cause. A PI is
not a trial on the merits and has no purpose except to determine
probable cause. A PI is an executive, not a judicial function.
Can this right be waived?
Yes, for failure to invoke the right prior to or at the time of the
plea.
PRELIMINARY INVESTIGATION v. EXAMINATION
Preliminary Preliminary
investigation examination
Conducted by the Conducted by the
prosecutor to judge to determine
Authority determine whether probable cause for
accused should be the issuance of a
held for trial warrant of arrest
Nature Executive in nature Judicial in nature
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
What is the difference between criminal investigation and
preliminary investigation?
Criminal investigation is a fact-finding investigation carried out
by law-enforcement officers for the purpose of determining
whether they should file a complaint for preliminary
investigation. Preliminary investigation is conducted for the
purpose of determining if there is probable cause to hold a
person for trial.
PROBABLE CAUSE IN PRELIMINARY INVESTIGATION
PROBABLE CAUSE
What is probable cause?
The existence of such facts and circumstances as would lead a
person of ordinary caution and prudence to entertain an honest
and strong suspicion that the person charged is guilty of the
crime subject of the investigation.
Probable cause is based on what?
Based merely on opinion and reasonable belief. It does not
import absolute certainty. It implies only probability of guilt and
requires more than bare suspicion but less than evidence to
justify conviction.
Who has discretion to determine probable cause?
It lies within the discretion of the prosecuting officers after
conducting a preliminary investigation upon complaint of an
offended party.
What are the 2 kinds of determination of probable cause?
1. Executive
2. Judicial
Take note: Refer to preliminary investigation v. preliminary
examination discussion.
CASES REQUIRING PRELIMINARY INVESTIGATION
When is PI required?
When the offense has a penalty of at least 4 years, 2 months
and 1 day, without regard to fine.
If PI is not required, how do you institute a criminal action?
1. By filing the complaint with the prosecutor
2. By filing the complaint or information with the MTC
FILING WITH THE OFFICE OF THE PROSECUTOR
Complaint involves an offense punishable with at least 4 years,
2 months and 1 day. Also in Manila and other chartered cities
where direct filing is not allowed.
If complaint if filed with the prosecutor, what shall the
complaint contain?
1. The address of the respondent
2. Complaint shall be accompanied by:
a) Affidavit of complainant
b) Affidavit of the complainant’s witnesses
c) Other supporting documents
19 | U N I V E R S I T Y O F S A N C A R L O S
3. Appropriate number of copies of the above as there are
respondents, plus 2 copies for the official file
4. Affidavits shall be subscribed and sworn before any
prosecutor or government official authorized to
administer oath, or in their absence, a notary public.
When should the prosecutor act on the complaint?
Within 10 days from its filing.
DIRECT FILING THE WITH THE MTC
Complaint involves an offense punishable by imprisonment of
less than 4 years, 2 months and 1 day, same requirements as
when complaint is filed with the prosecutor.
How does the judge determine probable cause?
By personally examining in writing and under oath the
complainant and his witnesses in the form of searching
questions and answers. Judge may also require the submission
of additional evidence within 10 days from notice.
If the judge finds no probable cause within 10 days, what
happens?
The judge shall dismiss the complaint.
What happens if the judge finds probable cause?
He shall issue a warrant of arrest. If accused is already arrested,
the court shall issue a commitment order.
Can the judge choose not to issue a warrant of arrest?
Yes, when the judge is satisfied that there is no necessity for
placing the accused under custody. He may just issue summons
instead of a warrant.
When can you say that the judge abused his discretion in
issuing a warrant?
When he issues a warrant based solely in the statement of a
witness who was not even personally examined in writing and
under oath and in the form of searching questions and answers.
What is the procedure in resolving a complaint when the
preliminary investigation is conducted by a judge?
1. Within 10 days after the termination of the preliminary
investigation, the investigating judge shall transmit the
resolution of the case to the provincial or city
prosecutor, or to the Ombudsman for appropriate
action.
2. The resolution shall state the findings of fact and law
supporting his action together with the record of the
case which shall include:
a. the warrant if the arrest is by virtue of a
warrant
b. the affidavits, counter-affidavits, and
supporting evidence
c. the undertaking or bail and the order of
release
d. the transcripts of the proceedings
e. the order of cancellation of the bail bond if the
resolution is for the dismissal of the complaint
3. Within 30 days from the receipt of the records, the
provincial or city prosecutor or the Ombudsman shall
review the resolution of the judge.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
4. They shall act on the resolution, expressly and clearly
stating the facts and the law on which it is based.
5. The parties shall be furnished with copies thereof.
6. They shall order the release of an accused who is
detained if no probable cause is found against him.
WHEN PI NOT REQUIRED EVEN IF NORMALLY
REQRUIRED
WHEN PI NOT REQUIRED EVEN IF OFFENSE NORMALLY
REQUIRES
When PI is not required even if the offense is one which
normally requires a preliminary investigation?
If a person is arrested lawfully without a warrant involving an
offense which requires a PI because the penalty is at least 4
years, 2months and 1 day. A complaint may be filed without
need for a PI.
Can a person lawfully arrested without a warrant ask for a
PI?
Yes, before the complaint or information is filed, but he must sign
a waiver of the provisions of Article 125 of the RPC which must
be in writing and with the presence of counsel.
If information or complaint has already been filed, can the
accused still ask for a PI?
Yes, within 5 days from the time he learns of the filing. However,
accused should address the motion to the court for the holding
of a preliminary investigation. “Motion to conduct a PI”
When must PI be terminated?
15 days from its inception.
Can the accused post bail during the PI?
Yes. While the PI is being undertaken, accused is still under
detention. Hence, he may apply for bail to effect his release.
Take note: Bail must be applied for and issued by the court in
the province, city or municipality where the person arrested is
held.
QUESTIONING THE ABSENCE OF PI
When can the accused question the regularity or absence
of PI?
Any time before he enters his plea. Failure to do so will amount
to a waiver.
What if the court denies the invocation of the right to a
preliminary investigation, what is the remedy of the
accused?
He must immediately appeal it to the appellate court. He cannot
later raise the issue for the first time on appeal.
Is a motion to quash a proper remedy to question?
No, because the absence of a preliminary investigation is not
one of the grounds for a motion to quash under Sec 3 Rule 117.
20 | U N I V E R S I T Y O F S A N C A R L O S
Should the court dismiss the information in case a motion
for a PI is made by accused?
No. It should just remand the case to the prosecutor so that the
investigation may be conducted.
What is the effect of absence of PI on the effect on the
court’s jurisdiction?
The absence of a PI does not affect the court’s jurisdiction nor
does it impair the validity of the information.
If the complaint or information is amended, should a new
preliminary investigation be conducted?
No.
If the complaint or information is substituted, should a new
preliminary investigation be conducted?
Yes.
INQUEST PROCEEDINGS
What is an inquest proceeding?
It is that conducted when a person is lawfully arrested without a
warrant involving even an offense which requires a PI. It is not a
PI. It is a summary investigation.
What is the purpose?
To determine whether or not the person detained should remain
under custody and then charged in court.
When is inquest proceedings deemed commenced?
The moment the inquest officer receives the complaint and
referral documents from the law enforcement authorities.
What consists of the referral documents?
1. Affidavit of arrest
2. Investigation report
3. Statements of the complainant and the witnesses
4. Other supporting evidence gathered
Should the detained person be present during the inquest
proceedings?
Yes, unless reasons exists that would dispense with his
presence. (e.g. hospital confinement, maximum security
detention)
What is the initial duty of the inquest prosecutor?
To determine if the detained person has been lawfully arrested
by summarily examining the arresting officers on the
circumstances surrounding the arrest. (Because remember, an
inquest proceeding is only for those people who were lawfully
arrested without a warrant)
What happens if the person is found to be arrested
unlawfully?
The inquest proceeding will not proceed. The inquest prosecutor
shall recommend the release of the detainee.
If warrantless arrest was properly effected, what happens?
The inquest shall proceed. However, the inquest officer shall
first ask the detained person if he desires to avail of a preliminary
investigation. If yes, waiver of Art 125 of RPC. PI may be
conducted by the Inquest officer himself.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
What happens if the Inquest prosecutor finds that probable
exists?
He shall prepare the corresponding information with the
recommendation that the same be filed in court. If no probable
cause found, recommend the release of the detained person.
THE INQUEST MUST PERTAIN TO THE OFFENSE FOR
WHICH ARREST WAS MADE
The inquest conducted must be for the offense for which the
detainee was arrested.
Beltran v. People
Petitioners were incumbent congressmen and representatives
of party-list groups while others were private individuals.
Petitions sought the issuance of writs of prohibition to enjoin the
prosecution of petitioners for rebellion and to set aside the
rulings of the DOJ and RTC Makati on the investigation and
prosecution of petitioners’ cases and likewise challenged the
validity off inquest proceedings against Beltran.
Crispin Beltran, one of the petitioners, was arrested without a
warrant. He was not informed of the crime for which he was
arrested. On the evening, he was subjected to an inquest for
Inciting into Sedition based on a speech he gave during a rally
during the 20th anniversary of the EDSA revolution.
The inquest was based on the joint affidavit of the arresting
officers who claimed to have been present during the rally.
Inquest prosecutor indicted Beltran and filed the information with
the MTC of Quezon.
A few days later, he was subjected to a second inquest, this time
for rebellion, based on the letters of CIDG investigators claiming
that Beltran and one San Juan were allegedly the leaders and
promoters of an alleged plot to overthrow the Arroyo
government to be carried out jointly with the Community party.
He was again indicted and a second information was filed.
Beltran asked the RTC to make a judicial determination of
probable cause but court sustained the finding.
SC held that inquest proceedings for rebellion is void. IP are
proper only when the accused has been lawfully arrested
without a warrant. None of the arresting officers saw Beltran
commit the crime of rebellion in their presence nor did they have
personal knowledge of the facts sufficient to form probable
cause. Beltran was arrested for inciting to sedition and not for
rebellion and the rule states that the IP should pertain to the
offense for which the arrest was made. Hence, when the second
inquest was done, the officers overstepped their authority.
WHO CONDUCTS PRELIMINARY INVESTIGATON
Who may conduct preliminary investigation and determine
probable cause?
1. Provincial or City Prosecutor and their assistants
2. National and Regional State Prosecutors
3. Other officers as may be authorized by law
Take note: Judges of the MTCs were allowed to conduct PIs
before.
21 | U N I V E R S I T Y O F S A N C A R L O S
Who are those others who are also authorized to conduct a
PI?
1. COMELEC thru his authorized legal officers – for all
election offenses punishable under the Omnibus
Election Code and to prosecute the same
2. Office of the Ombudsman – any act or omission of any
public officer or employee when such appears to be
illegal, unjust, improper or inefficient.
3. Presidential Commission on Good Government – with
the assistance of the OSG is empowered to
investigate, file and prosecute cases
Should the procedure for PI be strictly followed?
YES!
Ladlad v. Velasco
A PI against Ladlad and Maza of the rebellion charges was held
before a panel of DOJ prosecutors on the basis of unsubscribed
letters of CIPG investigators alleging the petitioners have
committed acts constituting rebellion.
During the PI, counsel for CIDG presented a masked man who
claimed to be an eyewitness. Also, the panel of prosecutors
gave petitioners 10 days within which to file their counter-
affidavits but they were furnished with the complete copies of
the documents only four days later.
Petitioners moved for the inhibition of the members of the
prosecution panel for lack of impartiality and independence.
DOJ denied.
Prosecutors issued a resolution finding probable cause to
charge petitioners and 46 others with rebellion and
corresponding information were filed with the RTC Makati.
Petitioners moved to enjoin the prosecution because of the
irregularities in the PI.
Supreme Court ruled that prosecutors disregarded the process
for the conduct of PI laid down in Sec 3 a of Rule 112 which
provides that the complaint be accompanied by affidavits of the
complainant and his witnesses, subscribed and sworn to.
Prosecutors treated the unsubscribed letters of the officers of
the CIDG-PNP as complaint and accepted the affidavits even
though some were notarized by a notarized by a notary public
without any showing that a prosecutor or qualified government
official was unavailable.
Also, prosecutors peremptorily issued subpoenas to petitioners
without first determining whether there are grounds to continue
with the investigation and they distributed copies of the affidavit
of the witness to the members of the media knowing that
petitioners have not had the opportunity to examine the charges.
FILING OF COMPLAINT FOR PRELIMINARY
INVESTIGATION
Where the do you file a complaint for PI?
You file it with the office of the prosecutor through an affidavit of
complaint.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
What should the complaint consist of?
1. The address of the respondent
2. Complaint shall be accompanied by:
a) Affidavit of complainant
b) Affidavit of the complainant’s witnesses
c) Other supporting documents
3. Appropriate number of copies of the above as there are
respondents, plus 2 copies for the official file
4. Affidavits shall be subscribed and sworn before any
prosecutor or government official authorized to
administer oath, or in their absence, a notary public.
DISMISSAL OF COMPLAINT/ISSUANCE OF SUBPOENA
What are the options of the investigating officer?
From the filing of the complaint, the investigating officer has 10
days within which to decide which of the following options to
take:
a) To dismiss the complaint if he finds no ground to
conduct the investigation
b) To issue a subpoena to the respondent in case he finds
the need to continue with the investigation
Can the respondent who was issued a subpoena file a
motion to dismiss?
NO. He cannot file a motion to dismiss in lieu of a counter-
affidavit. He should submit a counter-affidavit, affidavits of
witnesses and other supporting documents within 10 days from
receipt of subpoena.
What happens if the accused does not submit is counter-
affidavit within the 10 day period?
The investigating officer shall resolve the complaint based on
the evidence presented by the complainant However, since the
Rules is liberally construed, the proceedings may be reopened
to allow the accused to submit his counter-affidavit upon a
proper motion to be done before the prosecutor has issued a
resolution.
Can a clarificatory hearing be set?
Yes, whenever there are facts and issues that need to be
clarified. However, the parties do not have the right to examine
or cross-examine each other or the witnesses.
Is the clarificatory hearing indispensable during a PI?
No, it is within the discretion of the investigating officer.
Can an accused demand the right to confront and cross-
examine his witnesses during the preliminary
investigation?
No. The preliminary investigation is not part of the trial. It is
summary and inquisitorial in nature, and its function is not to
determine the guilt of the accused but merely to determine the
existence of probable cause.
22 | U N I V E R S I T Y O F S A N C A R L O S
CERTIFICATION OF PRELIMINARY INVESTIGATION
Should the investigating prosecutor find cause to hold the
accused for trial, he shall prepare both the resolution and
information. The information shall contain a certification.
What should the certification contain?
1. That he is an authorized officer
2. He has personally examined the complainant and his
witnesses
3. There is a reasonable ground to believe that a crime
has been committed
4. The accused is probably guilty thereof
5. The accused was informed of the complaint and
evidence against him
6. The accused was given the opportunity to submit
controverting evidence
When should the investigating officer determine whether
there is sufficient ground to hold the accused for trial?
Within 10 days from the termination of the investigation.
What is the effect of absence of the required certification?
The information is still valid because such is not an essential
part of the information itself and its absence cannot vitiate it.
What is important is that there was actually an investigation, that
the accused was informed thereof and was allowed to present
controverting evidence.
FORWARDING OF THE RECORDS OF THE CASE
Where should the investigating officer forward the records
of the case?
Within 5 days from his resolution, he shall forward the records
of the case to the provincial or city prosecutor or chief state
prosecutor or to the Ombudsman or his deputy in cases of
offense cognizable by the SB in the exercise of its original
jurisdiction.
When shall they act on the resolution?
Within 10 days from their receipt thereof.
Is there a need for the prior written authority or approval of
the officers mentioned above?
Yes. No complaint or information may be filed or dismissed
without their prior written approval or authority.
Can the resolution of the investigating officer be reversed
or affirmed??
Yes, it may be reversed or affirmed by the provincial or city
prosecutor or chief prosecutor or the Ombudsman in view of the
fact that their prior written authority and approval is needed.
What is the rule when recommendation for dismissal by the
investigating prosecutor is disapproved?
The city or provincial prosecutor, chief state prosecutor or the
Ombudsman may:
1. By himself, file the information against the accused, or
2. Direct another assistant prosecutor to do so without
conducting another preliminary investigation
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
REMEDIES FOR THE AGGRIVED PARTIES IN P.I.
1. Motion for reconsideration
The aggrieved party may file a motion for reconsideration within
fifteen 15 days from receipt of the assailed resolution.
2. Appeal to the Secretary of Justice/Regional State
Prosecutor
If the motion is denied, the aggrieved party may appeal within
fifteen (15) days from the denial of the motion for
reconsideration (Sec. 3, 2000 NPS Rule on Appeal, DO J
Department Circular No. 70).
Rules on Appeals to the Secretary of Justice; filing a
petition for review.
1. The appeal petition must be verified and copies of the
same must be furnished the adverse party and the Prosecution
Office issuing the appealed resolution (Sec. 4, Department
Circular No. 70). The petition must contain the matters
mandated under Sec. 5 of Department Circular No. 70 and
failure to comply with the same shall constitute sufficient ground
for the dismissal of the petition (Sec. 6, Department Circular No.
70).
2. Within a non-extendible period of fifteen (15) days from
receipt of the copy of the petition, the adverse party may file a
verified comment. The investigating/reviewing/approving
prosecutor need not submit any comment except when directed
by the Secretary of Justice (Sec. 8, Department Circular No.
70).
3. If no comment is filed within the prescribed period, the
appeal shall be resolved on the basis of the petition (Sec. 8,
Department Circular No. 70).
4. If the Secretary of Justice finds the same to be patently
without merit or manifestly intended for delay, or when the
issues raised therein are too unsubstantial to require
consideration, he may dismiss the petition outright (Sec. 7,
Department Circular No. 70).
5. If pursuant to the appealed resolution, an information
has already been filed and the accused has already been
arraigned prior to the filing of the petition, the petition shall not
be given due course (Sec. 7, Department Circular No. 70).
6. If the accused has been arraigned after the filing of the
petition, any arraignment shall not bar the Secretary of Justice
from exercising his power of review (Sec. 7, Department
Circular No. 70).
7. The Secretary of Justice may reverse, affirm or modify
the appealed resolution. He may also dismiss the petition for
review motu proprio or upon motion on any of the following
grounds:
i. That the petition for review was filed beyond
the period prescribed;
ii. That the prescribed procedure and
requirements provided in Department Circular No. 70
were not complied with;
iii. That there is no showing of any reversible
error or that the accused was already arraigned when the
appeal was taken;
23 | U N I V E R S I T Y O F S A N C A R L O S
iv. That the appealed resolution is interlocutory
in nature, except when it suspends the proceedings
based on the alleged existence of a prejudicial question;
v. That the offense has already prescribed; and
vi. That there are other legal and factual
grounds that exist to warrant a dismissal Sec. 12,
Department Circular No. 70).
8. The Secretary however, has another option. He may
order the reinvestigation of the case. If the Secretary of Justice
finds it necessary to investigate the case, the reinvestigation
shall be made by the investigating prosecutor, unless for
compelling reasons, another prosecutor is designated to
conduct the same (Sec. 11, Department Circular No. 70).
9. The party aggrieved by the decision of the Secretary
of Justice may file a motion for reconsideration within a non-
extendible period of ten (10) days from receipt of the resolution
on appeal. Copies of such motion and proof of service thereof
shall be served upon the adverse party, and the Prosecution
Office concerned. No further or second motion for
reconsideration shall be entertained (Sec. 13, Department
Circular No. 70).
Note:
(a) The appeal does not hold or prevent the filing of the
corresponding information in court based on the finding of
probable cause in the appealed resolution, unless the
Secretary of Justice directs otherwise, but the appellant
and prosecutor shall see to it that, pending resolution of the
appeal, the proceedings in court are held in abeyance
(Sec. 9, Department Circular No. 70).
(b) Party filing a petition for review is allowed to file a motion
for the suspension of the arraignment under Sec. 11 (c) of
Rule 116. Upon motion by the proper party, the arraignment
shall be suspended, among others, if a petition for review
of the resolution of the prosecutor is pending.
Assailing the resolution of the Secretary of Justice;
Petition for certiorari under Rule 65
The rule is that the DOJ is not a quasi-judicial agency exercising
a quasi-judicial function when it reviews the findings of a public
prosecutor regarding the presence of probable cause and that
its findings are not reviewable by the Court of Appeals in a
petition for review under Rule 43 of the Rules of Court. The
remedy of the aggrieved party is to file a petition for
certiorari under Rule 65.
3. Appeal to the Office of the President
Appeals from or petition for review of
"decisions/orders/resolutions of the Secretary of Justice on
preliminary investigations of criminal cases are entertained by
the Office of the President" under the following conditions which
have to be established as jurisdictional facts:
1. The offense involved is punishable by reclusion
perpetua to death;
2. New and material issues are raised which were not
previously presented before the Department of Justice
and were not hence, ruled upon;
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
3. The prescription of the offense is not due to lapse
within six (6) months from notice of the questioned
resolution; and
4. The appeal or petition for review is filed within thirty
(30) days from notice.
If the appeal does not clearly fall within the jurisdiction of the
Office of the President, the appeal shall be dismissed outright. If
the lack of jurisdiction is not readily apparent, the
appellant/petitioner shall be ordered to prove the necessary
jurisdictional facts.
Assail the resolution of the Office of the President; Petition
for review under Rule 43
ACTION OF THE JUDGE UPON FILING OF COMPLAINT OR
INFORMATION
What should the Judge upon filing of the complaint or
information?
1. Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the
resolution of the prosecutor. In conducting the evaluation of
the resolution, the judge shall look into its supporting
evidence (Sec. 5, Rule 112, Rules of Court).
2. The judge may make some findings after personally
evaluating the resolution of the prosecutor. The judge may
find that the evidence (a) fails to establish probable cause;
(b) establishes probable cause; or (c) engenders a doubt as
to the existence of probable cause.
3. If the evidence on record clearly fails to establish probable
cause, the judge may immediately dismiss the case.
4. If he finds probable cause, he shall issue a warrant of arrest.
If a complaint or information was already filed pursuant to a
lawful warrantless arrest under Sec. 6 of Rule 112, the court
shall issue a commitment order instead of a warrant of
arrest. The same rule applies if the accused has already
been arrested pursuant to a warrant previously issued.
5. In case the judge doubts the existence of probable cause,
the judge may order the prosecution to submit additional
evidence within five (5) days from notice. The issue must
be resolved by the court within thirty (30) days from the filing
of the complaint or information (Sec. 5, Rule 112, Rules of
Court as amended by AM. 05-08-26-SC, August 30,2005).
WARRANT OF ARREST
When is a warrant of arrest not necessary?
1. When the accused is already under detention
2. When the accused was arrested by virtue of a lawful
arrest without warrant. (Sec. 5, Rule 113)
a. Arrest In Flagrante Delicto
b. Hot Pursuit
c. Arrest of Escapee
3. When the penalty is a fine only
24 | U N I V E R S I T Y O F S A N C A R L O S
What are the principles governing the finding of probable
cause for the issuance of a warrant of arrest?
1. There is a distinction between the objective of
determining probable cause by the prosecutor and by
the judge. The prosecutor determines it for the
purpose of filing a complaint or information, while the
judge determines it for the purpose of issuing a warrant
of arrest – whether there is a necessity of placing him
under immediate custody in order not to frustrate the
ends of justice.
2. Since their objectives are different, the judge should
not rely solely on the report of the prosecutor in finding
probable cause to justify the issuance of a warrant of
arrest. The judge must decide independently and must
have supporting evidence other than the prosecutor’s
bare report.
3. It is not required that the complete or entire records of
the case during the preliminary investigation be
submitted to and examined by the judge. He must
have sufficient supporting documents upon which to
make his independent judgment.
Withdrawal of the information already filed in court.
Crespo v. Mogul
Once a criminal complaint or information is filed in court, any
disposition of the case or dismissal or acquittal or conviction of
the accused rests within the exclusive jurisdiction,
competence, and discretion of the trial court. Although the
fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in court, he cannot
impose his opinion on the trial court. The trial court is the best
and sole judge on what to do with the case before it. The
determination of the case is within its exclusive control and
competence. A motion to dismiss the case filed by the public
prosecutor should be addressed to the court which has the
option to grant or deny the same.
The court, in the exercise of its discretion may deny the motion
and require that the trial on the merits proceed for the proper
determination of the case.
In resolving a motion to dismiss the case or to withdraw the
information, the trial court should not rely solely on the findings
of the public prosecutor or the Secretary of Justice that no crime
was committed or that the evidence is insufficient to support a
conviction. The trial court must make an independent
evaluation or assessment of the merits of the case and the
evidence on record of the prosecution
If the prosecutor thinks that a prima facie case does not
exists, can he refuse to prosecute?
No, he cannot refuse to prosecute. He is obliged by law to
proceed and prosecute the criminal action. He cannot impose
his opinion on the court.
What is the distinction between the control by the
prosecution and the control by the court?
Before a case is filed in court, the prosecution has control over
the following:
1. What case to file
2. Whom to prosecute
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

3. The manner of prosecution

4. The right to withdraw the case before arraignment even
without notice and hearing.

After a case is filed in court, the court has control over the
following:

1. The suspension of arraignment

2. Reinvestigation
3. Prosecution by the prosecutor
4. Dismissal
5. Downgrading of the offense or dropping of the accused
even before plea

What are the limitations on the control by the Court?

(SINNATRa)

2. Prosecution is entitled to Notice of hearing

3. The Court must Await the result of a petition for review
4. The prosecution’s stand to maintain prosecution
should be Respected by the court
5. The ultimate Test of the court’s independence is where
the prosecutor files a motion to dismiss or withdraw the
information
6. The Court has authority to review the Secretary’s
recommendation and reject if it there is grave abuse of
discretion.
7. To reject or grant a motion to dismiss, the court must
make its own Independent assessment of the
evidence.
8. Judgment is void if there is No independent
assessment and finding of grave abuse of discretion.

25 | U N I V E R S I T Y O F S A N C A R L O S