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Criminal Procedure Notes based on Riano

Prosecution of Criminal Action:

 Under the supervision of the PUBLIC PROSECUTOR
1. Direct supervision
2. Control


 Allowed ONLY where the civil action is INSTITUTED in the criminal action
 Remember that civil actions are deemed instituted
 If the offended party
1. Waives
2. Reserves
3. Institutes civil action prior to the criminal action

Exception on the involvement of the private prosecutor:

 If he is authorized to do so in writing
 He may prosecute up to the end of the trial
 Provided, the authorization shall be given by either the Chief of the
Prosecution Office or the Regional State Prosecutor
 AND, must be approved by the court
 HOWEVER, it may be revoked or withdrawn by the public prosecutor any
Since prosecution is under the control and supervision of the PUBLIC
PROSECUTOR, it follows that the SC CANNOT compel the former to file and
information, or prosecute a person if he believes that there is no probable cause
in doing the same!
Exception: grave abuse of discretion on the public prosecutor

DOJ ------ SEC of Justice ------- PROSECUTORS

Criminal action in MTC or MCTC – prosecuted under the public prosecutor

If public prosecutor is absent or not available, may be prosecuted by:
1. Offended party
2. Any peace officer
3. Public officer charged with the enforcement of the law violated


What are these crimes?
1. Adultery
2. Concubinage

NOTE: these crimes shall not be prosecuted except upon a complaint filed by
the offended spouse
 Cannot be instituted against one party alone! AGAINST BOTH GUILTY
Cases where it cannot be prosecuted
 If the offended party has consented to the offense or has pardoned the
offenders (express/implied)

3. Seduction
3. Abduction
3. Acts of lasciviousness

SAME RULE: cannot be prosecuted except upon a complaint filed by the:

1. Offended party – even if minor, still has the right to initiate
2. Parents
3. Grandparents or legal guardian
4. State
6. Defamation
-- should be the imputation of the offenses of adultery, concubinage,
seduction, abduction, and acts of lasciviousness

SIMILAR RULE: filed by the offended party


Complaint, defined.
 Sworn written statement
 Charging a person with an offense
 Subscribed by the offended party, any peace officer, or other public officer
 Name: People of the Philippines
Private offended parties – only as witnesses
 Thus they may not appeal the dismissal of a criminal case or the acquittal
ONLY the civil aspect
 In so doing, the private offended party who appeals must prosecute in his
own personal capacity

So how then can a dismissal or acquittal of the criminal case be

 Reason: private offended party has no legal personality to do so
 Chapter12, Title III, Book IV of the Admin. Code
 Only the OSG can bring and/or defend actions on behalf of the Republic or
represent the people or the State in criminal proceedings pending in the
Supreme Court and the CA

Information, defined.
 Accusation in writing
 Not required to be sworn; because the prosecutor is under the oath of his office
 Charging a person with an offense
 Subscribed by the prosecutor
 And filed with the court
 Name: People of the Phils

What happens if there is infirmity of the signature in the information?

 The information confers jurisdiction on the court, thus if there is infirmity –
 An infirmity in the information, such as lack of authority of the officer
signing it, cannot be cured by silence, acquiescence, or even by express consent

The complaint or information should include the ff (sufficiency test):

1. Name – all of the accused
2. Designation of the offense given by the statute
3. Acts/omissions complained of - should be described with such
particularity as to appraise the accused, with reasonable certainty, of the
offense charged
1. Offense being charged
2. Acts or omissions complained of
3. Qualifying and aggravating circumstances
b. Name of the offended party
c. Approximate date of the commission – unless material element/ingredient of
the crime
d. Place where the offense was committed



Note: sufficiency of information is not negated by an incomplete or defective

designation of the crime. Failure to specify the correct crime committed will not
bar conviction of the accused.

Question: When is the right time to question the sufficiency or validity of the
information or complaint?

Answer: before arraignment or during trial, otherwise, deemed waived.

Actions: 1) bill of particulars; 2) quashal of the information

Question: What should be given preference, the designation of the crime in the
information or the allegation of the facts?

Answer: The allegation of facts is controlling because the nature and

character of the crime charged are determined not by the designation of the
specific crime, but by the facts alleged in the information. So even if the
information is defective, the allegation of facts must be preferred over the
defective information. Allegation in the information, not the technical name
given by the prosecutor.

Question: What happens if there is a mistake on the name of the accused?

Answer: A mistake in the name of the accused is not equivalent, and does not
necessarily amount to, a mistake in the identity of the accused especially when
sufficient evidence is adduced to show that the accused is pointed to as one of
the perpetrators of the crime. However, the identity must be proven.

In offenses against property – it is enough that the property is described with

such particularity as to properly identify the offense charged.

Statement of the qualifying and aggravating circumstances:

 Needed since without it, the accused cannot be convicted of
qualifying or aggravating circumstance even if proven in court
 Even if an aggravating circumstance had been proven, but was not
alleged, courts will not award exemplary damages!
 Reason: tantamount to denial of due process since the accused is
deprived to be informed of the charges against him!
 How about mitigating? – no need. The accused may be convicted with
mitigating circumstances, since the nature of it is in favor of the accused


Criminal action shall be instituted and tried in the court of the municipality or
a. Where the offense was committed
b. Where any of its essential ingredients occurred


 Before plea or arraignment – leave of court not required
 Without leave of court
 Any formal or substantial amendment may be made
 After plea or arraignment
 Amendment is prohibited
 Except if beneficial to the accused
 Before plea or arraignment – leave of court required where:
 The amendment downgrades the nature of the offense charged;
 The amendment excludes any accused

Formal Amendment, defined.

 New allegations which relate only to the range of the penalty
 Which does not charge another offense different or distinct from that
charged in the original one
 Additional allegations which do not alter the prosecution’s theory
 Does not adversely affect any substantial right
 An amendment that merely adds specifications to eliminate vagueness in
the information
 Not to introduce new and material facts
 Merely states with additional precision something which is already
contained in the original information
 Adds nothing essential for conviction
Facts of a case: prosecutor entered his amendment by crossing out the word
Homicide and instead wrote the word Murder

Issue: Is it a formal or substantial amendment?

Ruling: Only a formal amendment. The only change made was in the caption of
the case; and in the opening paragraph or preamble of the Information, with the
crossing out of word Homicide and its replacement by the Murder. There was no
change in the recital of facts constituting the offense charged or in the
determination of the jurisdiction of the court. The averments in the amended
Information for murder are exactly the same as those already alleged in the
original information for homicide, as there was not at all any change in the
act imputed to the accused. In allowing formal amendments in which the
accused has already pleaded, it is necessary that the amendments do not
prejudice the rights of the accused.

Test whether the rights of the accused are prejudiced by the amendment of a
complaint or information is:
1. whether a defense under the complaint or information, as it originally
stood, would no longer be available after the amendment is made; and
2. When any evidence the accused might have would be inapplicable to
the complaint or information.
Since the facts alleged in the accusatory portion of the amended information
1. identical with those of the original information for homicide,
2. there could not be any effect on the prosecution’s theory of the
3. neither would there be any possible prejudice to the rights or
defense of petitioner.


 if it appears at any time before judgment that a mistake has been made
in charging the proper offense
 if it becomes manifest that the accused cannot be convicted of the
offense charges or of any other offense necessarily included therein, the court
shall commit the accused to answer for the proper offense by requiring the filing
of the proper information.
 Accused shall not be discharged if there appears good cause to detain
him. After the proper information is filed, it shall dismiss the original case
 in such a case, the court shall dismiss the original complaint or
information once the new one charging the proper offense is filed
 provided, accused will not be placed in double jeopardy
 may be made before or after arraignment
Substitution, distinguished/defined
 substantial change
 with leave of court as the original information has to be dismissed
 requires another preliminary investigation and the accused has to plead
anew to the new information filed
 new information involves a different offense which does not include or is
not necessarily included in the original charge, hence, accused cannot claim
double jeopardy!
Amended information entails:
 formal or substantial amendment
 before plea can be without leave of court, etc
 only to form – no need for preliminary investigation
 amendment of the same offense charged – hence, substantial
amendments to the information after the plea has been taken cannot be made
over the objection of the accused, for if the original information would be
withdrawn, the accused could invoke double jeopardy!


 when criminal action is instituted, the civil action is deemed included
 every person criminally liable for felony is also civilly liable
 the rule on implied institution of the civil action does not apply before
the filing of the criminal action or information --- when there is no criminal
case yet against the respondents as when the Ombudsman is still in the process
of finding probable cause to prosecute the respondent
Civil liability arising from the crime – the governing law is rules of Criminal
Procedure not rules of civil procedure!

Exception: civil action other than the one arising from the crime is not
suspended by the commencement of the criminal action because they may
proceed independently of the criminal proceedings.
Reservation of the civil action should be made before the prosecution starts
presenting its evidence!

Note: after the criminal action is commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in
the criminal action!
 Preference is given to the resolution of the criminal action
 If the civil action was commenced before the institution of the
criminal action, the civil action shall be suspended in whatever stage it may
be found before judgment on the merits, once the criminal action is filed. The
suspension shall last until final judgment is rendered in the criminal action
 Exception: does not apply to independent civil action since they are
distinct and separate from the civil action arising from the offense committed
 Another exception: prejudicial question

RULE on counterclaims, etc:


CASE may be filed by the accused in the criminal case but any cause of action
which could have been the subject may be litigated in a separate civil action.
Note that a criminal case is not the proper proceedings to determine the
private complainant’s civil liability.
A court trying a criminal case is limited to determining the guilt of the accused,
and if proper, to determine his civil liability those arising only from offense.

CAUSE OF DEATH of the accused:

 If the accused dies after arraignment and during the pendency of the
criminal action
– the civil liability arising from the crime – extinguished (but this does not
preclude the offended party from filing a separate civil action based on other
sources of obligation may be continued)
 Dies before arraignment – case dismissed but the offended party may
file the proper civil action
 Death prior to final judgment – terminates criminal liability and only
civil liability directly arising from and based solely on the offense committed
(again, does not bar for filing a separate civil action on other sources of
 Death during pendency of his appeal with SC – totally extinguished
the criminal and civil action based solely on the crime. Reason: no final
judgment of conviction was yet rendered by the time of his death.

Novation of contract: extinguishment of criminal liability

Criminal liability is not affected by a compromise or novation of contract
It may affect the civil liability but not the criminal aspect since it is a public
offense which must be prosecuted and punished by the government.


Degree of evidence: mere preponderance of evidence
Note: extinction of the penal action does not carry with it the extinction of
the civil action where:
a. Acquittal is based on reasonable doubt
b. Court declares that the liability is only civil
c. Civil liability does not arise from or is not based upon the crime of which
he was acquitted
However, extinction of the civil action based on delict – deemed
 Provided, there is a fining in a final judgment in the criminal action that
the act or omission from which the civil liability may arise did not exist!
Note: when the trial court acquits or dismisses the case on the ground of lack of
evidence to prove guilt beyond reasonable doubt, the civil action is not
automatically extinguished since liability on civil action can be determined
based on mere preponderance of evidence!
Hence, there is a requirement to state whether the prosecution absolutely failed
to prove his guilt or merely failed to prove beyond reasonable doubt – in either
case it shall determine if the act or omission from which the civil liability might
arise did not exist
Example: may be acquitted but if his negligence is proved by mere
preponderance of evidence, he may still be civilly liable

Elementary rule: payment of civil liability does not extinguish criminal liability


 Previously instituted civil action
 issued involved in a civil case
 which is similar or intimately related to the issue raised in the criminal
 resolution of which
 determines whether or not the criminal action may proceed
 civil action instituted previously or ahead of the criminal action; must
precede the criminal action
 civil action requires a decision before a final judgment can be rendered in
the criminal action
 proceedings in the second case may be suspended to await the resolution
of the prejudicial question in the first case
 existence of two actions –civil action and criminal action
 the issue in the civil case needs to be resolved first before it is determined
whether or not the criminal case should proceed or whether or not there should
be, in the criminal case, a judgment of acquittal or conviction
 the issue raised in the civil action is determinative of the guilt of the
accused in the criminal aspect
 the issue in the civil case is determinative of the issue in the criminal
case; the resolution of such issue determines whether or not the criminal action
may proceed
 it follows that if the resolution of the issue in the civil action will not
determine the criminal responsibility of the accused in the criminal action based
on the same facts, the civil case does not involve a prejudicial question. Neither
is there a prejudicial question if the civil and the criminal action can proceed
independently of each other, that is, the criminal action can proceed without
waiting for the resolution of the issues in the civil case

Reason: to avoid two conflicting decisions

1. civil case involves facts intimately related to those upon which the
criminal prosecution would be based;
2. in the resolution of the issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined
3. jurisdiction to try said questions must be lodged in another tribunal

Not a prejudicial question if:

1. both cases are criminal
2. both civil
3. both cases are administrative
4. one case is administrative and other civil
5. one case is administrative and other criminal
6. criminal case was instituted prior to the civil case!

Effect of the prejudicial question:

1. suspension for the criminal action may be filed
2. the criminal case may be suspended pending the final determination of
the issues in the civil case – this is the exception on the general rule that if the
civil action was commenced before the institution of the criminal action, the civil
action shall be suspended in whatever stage it may be found before judgment
on the merits, once the criminal action is commenced – the suspension shall last
until final judgment is rendered in the criminal action
3. accords a civil case a preferential treatment and constitutes an exception
to the general rule that the civil action shall be suspended when the criminal
action is instituted
4. however, suspension does not include dismissal therefore, double
jeopardy cannot be invoke

Where and when to file the petition for suspension

1. does not need to wait for the criminal case to be filed in court, it is
sufficient that there be previously instituted civil case – it may be filed in the
stage of preliminary investigation
2. the petition for suspension should be filed in the criminal case not in the
civil case since what is
3. suspended is the criminal case right?? Lol
4. where? – in the office of the prosecutor conducting the preliminary
5. any time before the prosecution rests

Case illustrations:
Preliminary Investigation Preliminary Examination
by the prosecutor by the judge
purpose: whether the accused should purpose: to determine probable
be held for trial or if he should be cause for the issuance of a
released warrant of arrest
Nature: executive, since it is part of Nature: judicial
the prosecutor’s job
Irregularity of arrest Proper arrest
(not in accordance with
Rule 113, Sec5(a)&(b)
Inquest proceeding shall Inquest shall proceed
not proceed
Release of the detainee Detainee may ask for bail (?)
*if the evidence warrants Prosecutor should ask the detainee if he wants to
preliminary investigation, avail preliminary investigation (remember:
the prosecutor may serve purpose of preliminary investigation is to
notice to the detainee determine the probability of guilt of the accused,
and whether he should be held for trial
Case Facts Ruling
(People More than two days before the marijuana is inadmissible since
v. arrest, the officers received a it was not incident to a lawful
Aminnudi tip that the accused was on arrest. The accused was not, at
n) board an identified vessel and the moment of his arrest,
carrying marijuana; acting on committing a crime nor was it
the information they waited for shown that he was about to do
the accused and approached so or that he had just done so.
him as he descended the ship He was just descending the
and arrested him. ship; no outward indication that
called for his arrest. To all
appearances, he was like any
other passengers innocently
disembarking from the vessel.
The officers could have obtained
a warrant since they had
reasonable time to apply
(People The accused were arrested Invalid arrest made merely on
v. while inside a pedicab despite the basis of reliable information
Molina) the absence of any outward that the persons arrested were
indications of a crime being carrying marijuana
(Malacat A warrantless arrest cannot be
v. CA). justified where no crime is being
committed at the time of the
arrest because no crime may be
inferred from the fact that the
eyes of the person arrested
were moving fast and looking at
every person passing by
People There was a telephone call from The requirements of a
v. an alleged informer that warrantless arrest were not
Mengot suspicious looking men were at complied with. There was no
e. a street corner. The operatives offense which could have been
dispatched to the place, they suggested by the acts of
saw three men who was looking Mengote of looking from side to
from side to side clutching his side while holding his abdomen.
abdomen. The operatives These are obviously not sinister
approached the men and acts. He was not skulking in the
introduce themselves as shadows but walking in the
policemen. Two of them tried to clear light of day. By no stretch
run away but the attempt was of the imagination could it have
foiled. The search yielded a been inferred from these acts
revolver in the possession of that an offense had just been
Mengote and a fan knife in the committed, or was at least
pocket of another. being attempted in their
People v Two men who were arrested the facts and circumstances did
Laguio. told the officers that they knew not manifest any suspicious
of a scheduled delivery of behavior on the part of WW that
shabu by their employer WW. would reasonably invite the
The police operatives attention of the police. He was
proceeded to the place and merely walking from the
found WW who came out of the apartment and was about to
apartment towards a parked enter a parked car when the
car, the officers approached police operatives arrested him,
him, introduced themselves and frisked and searched his person
upon hearing that he was WW, and commanded him to open
immediately he frisked him and the compartment of the car. He
asked him to open the back was not committing any visible
compartment of the car. When offense then. Therefore, there
frisked, an unlicensed pistol can be no valid warrantless
with live ammunitions was arrest in flagrante delicto. It is
found inside his pocket. The settled that reliable information
operatives searched the car and alone, absent any overt act
found shabu, unlicensed pistol, indicative of a felonious
etc enterprise in the presence and
within the view of the arresting
officers, is not sufficient to
constitute probable cause that
would justify an in flagrante
delicto arrest.

Case Facts Ruling

People The accused was carrying a
v. Anita woven buri-like plastic bag
Claudio which appeared to contain
camote tops, boarded a bus.
Overt act: instead of placing
the bag by her side, which is the
usual practice of a traveler, she
placed the same on the back
seat where a trained anti-
narcotics agent was seated.
Since the act of the accused was
unusual, the suspicion of the
agent was aroused. Feeling that
something was unusual, the
agent inserted his finger inside
the bag where he felt another
plastic bag in the bottom from
which emanated the smell of
marijuana. Right after she got
off the bus, the agent arrested
the accused.
People Two police officers together with there was a valid warrantless
v. a barangay tanod were arrest and a valid warrantless
Tanglib conducting surveillance search, since the officers were
en. operations in a bus station to faced by an “on-the-spot”
check on persons who may be information which required
engaging in the traffic of them to act swiftly.
dangerous drugs based on
information supplied by
informers. They noticed a
person carrying a red travelling
bag who was acting suspiciously.
When asked to open the bag,
the accused did so only after the
officers identified themselves.
Found in the bag were
marijuana leaves.
People Because of confidential reports Again, the Court distinguish
v from informers that two persons Maspil from Aminnudin. In
Maspil would be transporting a large Aminnudin, the officers were
quantity of marijuana, officers aware of the identity of the
set up a checkpoint to accused, his planned criminal
monitor, inspect, and scrutinize enterprise and the vessel he
vehicles. A couple of hours after would be taking, and the
midnight, a jeepney was flagged officers had sufficient time to
down in the checkpoint. On obtain a search warrant. In
board were the persons Maspil, the officers had no exact
identified by the informers who description of the vehicle of the
were also with the policemen accused, and no idea of the
manning the checkpoint. When definite time of its arrival. A
the sacks and tin cans were jeepney on the road is not the
opened, they contained same as a passenger boat the
marijuana leaves route and time of arrival of
which are more or less certain
and which ordinarily cannot
deviate or alter its course or
select another destination.

Case Facts Judgment

Abelita A team was dispatched to The petitioner’s act of trying to
III v. investigate. The investigation get away, coupled with the
Doria disclosed that a victim was incident report which they
WHAT: wounded and that the witness investigated, is enough to
shootin tagged the petitioner as the one raise a reasonable suspicion
g involved and that he had just left on the part of the police
incident the scene of the crime. After authorities.
tracking down the petitioner, he
was invited to the police
headquarters but the petitioner
sped off.
People Two robbers divested the The warrantless arrest of the
v Acol. passengers of a jeepney of their accused was sustained by the
belongings including the jacket of Court as well within the hot
one passenger. The passengers pursuit exception.
immediately sought the help of
police officers which formed a
team to track down the suspects.
One of the passengers, who went
with the police officers, saw one of
the robbers casually walking in the
same vicinity and wearing his
People The police station received a based on their
v report of a mauling incident, right knowledge of the
Gerent away the officers went to the circumstances of the death of
e. crime scene and found a piece of the victim and the report of an
wood with blood stains, a hollow eyewitness, in arresting the
block and two pouches of accused, the officers had
marijuana. A witness told the personal knowledge of facts
police that the accused was one of leading them to believe that it
those who killed the victim. They was the accused who was one
proceeded to the house of the of the perpetrators of the
accused and arrested him. crime.

1. Private respondent filed an action for frustrated parricide, then several

months after, she filed another action for the declaration of the nullity of their
marriage. The petitioner filed an urgent motion to suspend the proceedings.
Ruling: no prejudicial question since the criminal action was first filed before the
civil case. For a prejudicial question to exist, the civil action must be instituted
first before the filing of the criminal action. Moreover, the issue in the annulment
of marriage is not similar or intimately related to the issue in the criminal case
for parricide.
2. Respondent contracted his first marriage. Without said marriage having
been annulled, nullified, or terminated, the same respondent contracted a
second marriage with the petitioner. Based on petitioner’s complaint-affidavit,
information for bigamy was filed against respondent. Sometime thereafter,
respondent initiated a civil action for the judicial declaration of absolute nullity
of his first marriage. Respondent then filed a motion to suspend the proceedings
in the criminal case for bigamy. Issue: whether the subsequent filing of a civil
action for declaration of nullity of a previous marriage constitutes a prejudicial
question to a criminal case for bigamy. Ruling: the civil action for declaration of
the nullity of the marriage was not determinative of the issue in the bigamy
case, the Court placed emphasis on Art40 of the Family Code which requires a
prior judicial declaration of nullity of a previous marriage before a party may
remarry. Without it, the first marriage is presumed to be subsisting. Thus, any
decision in the civil action for nullity would not erase the fact that respondent
entered into a second marriage during the subsistence of a first marriage.
Therefore, a decision in the civil case was not essential to the determination of
the criminal charge – not a prejudicial question.
“Is the respondent probably guilty and therefore, should go to
Nature: INQUIRY PROCEEDING / Judicial Proceeding
Purpose: TO DETERMINE whether there is SUFFICIENT GROUND to engender a
well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial
Function: executive not a judicial function
 The only means of discovering the persons who may be
reasonably charged with a crime
 To enable the fiscal to prepare his complaint or information
 Lasts for 10 days
 Not a trial nor a part of it
 Does not involve the examination of witnesses
 The purpose is not to declare the respondent guilty beyond reasonable
 Does not require confrontation between the parties
 Conducted through submission of affidavits and supporting documents,
and through exchange of pleadings

To determine:
1. Whether a crime has been committed
2. Whether the respondent is probably guilty thereof
Prosecutor’s duties:
1. To determine the existence of probable case
2. To file information

What is probable cause in preliminary investigation?

 Implies probability of guilt
 Requires more than bare suspicion

The prosecutor does not:

 determine the guilt or innocence
 exercise adjudication nor rule-making functions

Ultimate purpose:
 to secure the innocent against hasty, malicious and oppressive
 to protect him from an open and public accusation of a crime
 to protect the State from useless and expensive prosecution
 designed to free a respondent from the inconvenience, expense, stress of
defending himself/herself in the course of a formal trial, until the reasonable
probability of his or her guilt has been passed upon in a more or less summary
Is the prosecutor a quasi-judicial officer?
No. A preliminary investigation is not a trial of the case on the merits, and has
no purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said to be acting as a
quasi-court, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal.

Is the substantial right of the accused to a preliminary investigation

Yes. It is deemed waived for failure to invoke the right prior to or at the time of
the plea/arraignment.


 existence of facts and circumstances
 as would lead a person of ordinary caution to entertain an honest and
strong suspicion
 that the accused is guilty of the crime subject of the investigation
 based only on opinion and reasonable belief
 implies probability of guilt

 requires more than bare suspicion
 but less evidence
 elements of the crime charged should be present since every crime is
defined by its elements, without which there should be no criminal
It does not
 does not import absolute certainty
 need not be based on clear and convincing evidence of guilt
 does not pronounce guilt (only the probability of guilt which would lead
the accused to stand trial)
 require a full and exhaustive presentation of the parties’ evidence
 The determination lies within the discretion of the prosecuting officers
after conducting a preliminary investigation.
 Merely binds over the suspects to stand trial

Kinds of determination of probable cause

1. Judicial – made by judge
2. Executive – made by the prosecutor during preliminary investigation

When required?
Preliminary investigation is required in a criminal offense has a penalty of at
least 4yrs, 2months, and 1 day.

Procedures for cases not requiring preliminary investigation:

1. Directly submit with the prosecutor; or
2. By filing an information or complaint with the MTC – conducted by the

Application for bail:

 while a preliminary investigation is undertaken, the person arrested is still
under detention
 to effect release, he may apply for bail since he is not yet charged in court

After plea has been entered/after arraignment:

-deemed to have waived the absence of preliminary investigation

Remand to the prosecutor:

 if the accused wants a preliminary investigation, the court will not dismiss,
BUT remand the case to the prosecutor so that investigation may be conducted
 the Sandiganbayan will hold in abeyance any further proceedings

Lack/Irregularity of Preliminary investigation will not affect:

1. court’s jurisdiction
2. validity of the information or render it ineffective

What is the effect of denial of a motion for reinvestigation?

 cannot invalidate the information

INQUEST PROCEEDINGS (summary investigation):

 for persons detained
 a person is lawfully arrested without a warrant
 involving an offense which requires preliminary investigation
 not a preliminary investigation; distinct
 does not follow the procedure on preliminary investigation

CONDUCTED WHEN: (by the inquest officer/prosecutor)

 a person has been lawfully arrested and detained
 without warrant

 police stations/headquarters of the PNP, unless otherwise directed (which
is why it is an informal and summary proceeding)

 from the time the Inquest Officer receives the complaint and referral
 detained persons should be present during inquest proceedings

Purpose: to determine whether or not the person detained should remain

under custody and then charged in court – ahh ok!!! Grrrr!!

- PN NOT REQUIRED even if offense requires preliminary investigation

1. a person is arrested lawfully without a warrant
note: he may ask for a preliminary investigation*
note: inquest proceedings apply
2. in flagrante delicto

Reason: preliminary investigation is not required since the person is lawfully


Riano: if he has been arrested in a place where an inquest prosecutor is

available, an inquest will be conducted instead of a preliminary investigation.

Question: What is the use of inquest proceeding?

Question: Is an inquest a substitute of preliminary investigation?

Question: Is it needed in lieu of preliminary investigation?

Answer: an inquest proceeding shall normally apply when a person is
lawfully arrested without a warrant

*When may the person lawfully arrested without warrant ask for a
preliminary investigation?

- before the complaint/information is filed but he must sign a waiver under

Article 125 of the RPC (imposes a penalty on the officer)

- after filing, within 5 days from the time he learns of its filing
Duty of the Inquest Prosecutor:
1. to determine if the detained person has been arrested lawfully in
accordance with Rule 113, Sec 5 (a) and (b)
1. he may examine the arresting officers on the arrest
b. should it be found that it was not in accordance with Rule113, inquest
prosecutor shall not proceed with the inquest proceedings. And recommend
the release of the detainee
** see the table at the back/below

Inquest must pertain to the offense for which the arrest was made

Case: Beltran v. People

Facts: Beltran was arrested without a warrant for inciting to sedition based on a
speech he gave. Second inquest was based on rebellion.

Ruling: Inquest proceedings are proper only when the accused has been
lawfully arrested without a warrant. The officers arrested Beltran for inciting to
sedition and not for rebellion, therefore the prosecutor could only have
conducted an inquest for inciting to sedition and no other! Second inquest –


*initial step: filing of the complaint with the prosecutor
(an affidavit of complaint)
1. address of the respondent
2. affidavits of his witnesses
3. other supporting documents
 the number of copies to be filed shall – also the number of respondents
included plus 2 copies for official file
 example: 2 respondents – 2 copies + 2 official files = total4
Dismissal of the complaint: (made by the complainant)
 from filing, prosecutor has 10 days to decide:
1. dismiss
2. issue subpoena to the respondent
Rights of the Respondent:
 right to examine the evidence submitted
 right to copy the evidence at his expense
 objects shall be made available for examination, copying, or
photographing at the expense of the requesting party (may be respondent or
Filing of counter-affidavit by respondent:
 within 10days from receipt of subpoena, he is required to submit his
counter-affidavit with other documents
*reply-affidavit from complainant; rejoinder-affidavit from respondent
Effect of no counter-affidavit: ex parte investigation
 prosecutor shall resolve the complaint based on the evidence presented
by the complainant
Respondent may be allowed to reopen the case to submit his counter-affidavit;
should be done before the prosecutor has issued a resolution; it should contain
an explanation for the failure to timely file the counter-affidavit

Clarificatory Hearing:
 set by the prosecutor
 to clarify facts and issues
 no right to cross-examine
 if the parties have questions to ask, it should be addressed to the
prosecutor, and the latter shall be the one to ask the questions to the party
 lasts only for 5 days
 dispensable
 within the discretion of the prosecutor

Resolution; final stage of preliminary investigation

If the prosecutor finds probable cause to hold the accused for trial, he shall
1. resolution
2. *information (to be filed in court)
3. or dismissal
*the information shall contain a certification, in which he certifies:
1. he personally examined the complainant and witnesses
2. there is reasonable ground that a crime has been committed
3. accused is probably guilty
4. accused was informed of the complaint and evidence
5. he was given an opportunity to submit evidence

Effect of the absence of certification:

 the information is still considered valid

After resolution – prosecutor shall forward the case to the provincial or

city prosecutor or chief state prosecutor or Ombudsman

Reason: there should be prior written authority or approval of the provincial,

city prosecutor, or chief state prosecutor or Ombudsman before an information
or complaint may be filed or dismissed by the prosecutor
*Resolution of the investigating prosecutor is not conclusive since it may be
reversed or affirmed by the prosecutors earlier cited

no complaint or information may be filed

Reiteration of the rule:
or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city
prosecutor, or chief state prosecutor, or the Ombudsman

When recommendation for dismissal is disapproved:

 the Ombudsman may file the information or he may direct another
assistant prosecutor

Motion for Reconsideration

 aggrieved party may file within 15 days from receipt of the resolution
 within 15 days from the denial of the MR
 appeal to the Secretary of Justice
 verified comment may be filed by the adverse party, 15 days from receipt
of appeal
 if there is no verified comment, Secretary of Justice may resolve on the
basis of the petition
 if there is probable cause, information may be filed in court
 proceedings in court should be held in abeyance
 aggrieved party may file a motion for suspension of arraignment; Rule
116, 11(c) arraignment shall be suspended if a petition for review of the
resolution of the prosecutor is pending
 Secretary may dismiss outright
 IF an information has been filed and accused has already been
arraigned before the filing of the appeal, the appeal shall not be given due
 IF, accused has been arraigned after the filing of the petition, any
arraignment shall not bar the Secretary of Justice to review
 Secretary of Justice has the power to affirm, modify, nullify, or
reverse the resolution made by his subordinates; has the ultimate power to
decide which conflicting theories of the parties should be believed; his finding
are not subject to review, except if tainted with grave abuse of discretion
(remedy of aggrieved party: petition for certiorari); his decision is final
 Courts are not empowered to substitute their own judgment, only that of
the investigating prosecutor and ultimately that of the Secretary of Justice
 General rule: Principle of non-interference – leaves the investigating
prosecutor sufficient latitude of discretion
 Exception: when there is grave abuse of discretion
Appeal to the Secretary of Justice
 May be availed of despite the filing of information in court
Appeal to the Office of the President; administrative appeal
Appeal to the Court of Appeals; judicial appeal
Appeal to the Supreme Court

Duties of the Judge; upon filing of the complaint/information

1. Personally evaluate the resolution; look into its evidence
2. Judge may find that evidence:
1. Fails to establish probable cause
(Judge may dismiss)
b. Establishes probable cause
(Judge shall issue warrant of arrest)
(If lawfully arrested – issue a commitment order)
c. Engenders a doubt as to the existence of probable cause
(Order to submit additional evidence)

When warrant of arrest is not necessary:

1. Accused is under detention pursuant to a lawful warrantless arrest, and a
complaint or information has already been filed
2. Offense is punishable by fine
3. Case is subject to the Rules on Summary Procedure (inquest?)

BAR Question: Whether the TRIAL COURT may refuse to grant the
motion filed by the Provincial Fiscal (upon instructions of the Sec of
Justice) and insist on the arraignment and trial on the merits.
Answer: YES, the court may deny the motion and require that the trial
on the merits proceed for the proper determination of the case. 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 of the trial court. The fiscal or even the Secretary of Justice cannot
impose his opinion on the trial court since it is the best and sole judge on what
to do with the case before it. The judge of the trial court is not bound to rely
solely on the resolution of the fiscal; he must make a personal evaluation of the
case, and satisfy himself that there is indeed a probable cause to issue a
warrant of arrest or a commitment order. Further, judge is required to positively
state that the evidence presented was insufficient for a prima facie case. It must
include the discussion of the merits and state the reasons for granting the
motion to withdraw.


How made
 The taking of the person into custody
 In order that he may be bound to answer for the offense
 Need not be actually restrained
 Sufficient: submission to the custody of the person
 Control over the person
 Restraint on his liberty
 He is not free to leave on his own volition

Who will arrest?

 Law enforcement officers are entrusted with the power to:
 Conduct investigations
 Make arrests
 Perform searches and seizures of persons and their belongings
 Must be exercised within the boundaries of the law


1. Personal knowledge by the arresting officer
2. of facts and circumstances
3. that the arrestee is indeed the perpetrator of the criminal act

QUESTION: What if the act of the officer does not amount to an arrest; will the
requirements on probable cause and personal knowledge stay?
ANSWER: No. It will not be pre-requisites to the legality of the said arrest.


(While on preliminary investigation, it was more on the prosecutor’s duty)
1. it shall be issued upon finding of probable cause
 otherwise, unreasonable, violates the constitutional right to privacy
of persons subject to such warrant

2. personally determined by the judge

 case: AAA vs. Carbonell: judge is not required to personally examine

the complainant and her witnesses in satisfying himself of the existence of
probable cause; judge should have taken into consideration the documentary
evidence as well as the transcript of stenographic notes
Ruling: The judge committed grave abuse of discretion for dismissing the
criminal case on the ground that petitioner and her witnesses failed to comply
with his orders to take the witness stand.

Case: Soliven v. Makasiar – this provision does not mandatorily require the
judge to personally examine the complainant and her witnesses. He may opt to:
1. personally evaluate the report and supporting documents submitted by
the prosecutor; or
2. disregard the prosecutor’s report and require the submission of supporting
affidavits of witnesses

 but such personal examination is not mandatory and

indispensable in the determination of probable cause; the necessity
arises only when there is an utter failure of the evidence to show the
existence of probable cause; otherwise, the judge may rely on the
report of the investigating prosecutor

The Judge must:

 satisfy himself of the existence of probable cause
 not required to personally examine
 judges merely determine the probability, not the certainty, of guilt of an
 personally review the initial determination of the prosecutor finding
probable cause to see if It is supported by substantial evidence
 but such personal examination is not mandatory and indispensable in the
determination of probable cause; the necessity arises only when there is an
utter failure of the evidence to show the existence of probable cause; otherwise,
the judge may rely on the report of the investigating prosecutor


 assumes the existence of facts
 that would lead a reasonably discreet and prudent man to believe that a
crime has been committed or it was likely to be committed
 by the person sought to be arrested

In determining probable cause:

 average man weighs the facts and circumstances
 without resorting to the standards of the rules of evidence
 of which he has no technical knowledge
 he relies on common sense
 demands more than suspicion
 requires less than evidence

Personal determination by the judge

 in Carbonell case – judge is not required to personally examine the
complainant and her witnesses; he may take into consideration the
documentary evidence, supporting affidavits
 however, the Court found that the judge’s finding of lack of
probable cause was premised only on the complainant’s and her witnesses’
absence during the hearing scheduled by the judge for the judicial
determination of the probable cause
 therefore, absence of the complainant or the witnesses, or failure or
refusal to take the witness stand would not warrant the existing of probable
cause #lol #dontstatetheobviousclairy
 SC found that the judge committed grave abuse of discretion for
dismissing the criminal case on the ground that petitioner and her witness failed
to comply with his orders to take the witness stand
Judge may disregard the fiscal’s report and require the submission of supporting
affidavits of witness to aid him in determining probable cause – case: Soliven v
 Judges just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by
substantial evidence
 Personal examination – not mandatory and indispensable;
When personal examination is required (literal)
 Only when there is utter failure to show the existence of probable cause
 Otherwise, judge may validly rely (not solely – hence, evaluation of
documentary evidence) on the report of the prosecutor , provided that he
likewise evaluates the documentary evidence in support thereof
 He should not rely solely on the report of the investigating prosecutor but
must also evaluate the documentary evidence and affidavits, and stenographic
 If the report, taken together with the supporting evidence, is sufficient to
sustain a finding of probable cause, it is not compulsory that a personal
examination of the complainant and his witnesses be conducted
 Never allowed to follow blindly the prosecutor

When directly filed with the MTC

1. Judge shall personally evaluate the evidence; or
2. Personally examine in writing and under oath the complainant and his
witnesses in the form of searching questions and answers
Method of Arrest with a warrant
1. Warrant is issued by a judge
2. Delivered to the proper law enforcement officer for execution
3. Head of the office to whom the warrant of arrest was delivered shall cause
the warrant to be executed within 10 days from its receipt
4. Within 10 days after the expiration of the period, the officer to whom it
was assigned for execution shall make a report to the judge who issued the
5. In case of his failure to execute, he shall state the reasons for its non-
Procedure of arrest by virtue of a warrant; the OFFICER SHALL:
1. Inform the person to be arrested of the cause of his arrest;
2. Inform him of the fact that a warrant has been issued

The information need not be made when the person to be arrested:

1. Flees
2. Forcibly resists
3. Giving of the information will imperil the arrest

NOTE: The officer need not have the warrant in his possession at the time
of the arrest. However, after the arrest, the warrant shall be shown to him as
soon as practicable, if the person arrested so requires.

The officer also has the duty to deliver the person arrested to the nearest police
station or jail without necessary delay.

When the person to be arrested is INSIDE a BUILDING

1. The officer is authorized
2. To break into any building or enclosure
3. In case he is refused admittance
4. After announcing his authority and purpose
5. If necessary, he may break out from said place to liberate himself
1. in flagrante delicto – in his presence, the person to be arrested, is
actually committing or is attempting to commit an offense
1. citizen’s arrest is allowed
b. hot pursuit – an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts/circumstances that
the person to be arrested has committed it
c. escapee – when the person to be arrested is a prisoner who has escaped
*the exception to the general rule that a warrant of arrest is required before an
arrest is made


 a private person, may without a warrant, arrest a person when, in his
presence, the person to be arrested is in flagrante
Who may make the warrantless arrest?
1. Peace officer
2. Private person
3. a bondsman

Requisites of in flagrante delicto

1. accused must perform an overt act
2. done in the presence or within the view of the arresting officer
 mere suspicion and reliable information – not justification for a
warrantless arrest!

CASES where warrantless arrest is upheld

The HOT PURSUIT exception

1. Offense has just been committed
2. The person making the arrest has personal knowledge of facts
indicating that the person to be arrested has committed it

Note: a warrantless arrest made, one year after the offense was allegedly
committed is an illegal arrest!

Does not require the officers to personally witness the commission of the
offense; PERSONAL KNOWLEDGE must be based on PROBABLE CAUSE –
actual belief or reasonable grounds of suspicion.

Reasonable ground:
1. Based on actual facts
1. Supported by circumstances sufficiently strong in themselves to
create probable cause of guilt
2. Probable cause with good faith
Method of arrest WITHOUT a WARRANT
1. Arrest by an officer; he shall inform:
1. Of his authority
2. Cause of his arrest
 The info need not be given if:
a. If the person to be arrested is engaged in the commission of an offense
b. In the process of being pursued immediately after its commission
c. Escapes or flees
d. Forcibly resists before the officer could inform him
e. The information will imperil the arrest
Officer may:
 Summon assistance
 Break into a building or an enclosure or break out from it

2. Arrest by private person; he shall inform

a. His intention to arrest him
b. Cause of his arrest
*need not be given under the same conditions above

NOTE: the right to break into a building or an enclosure does not apply to private

TIME OF ARREST: any day; any time of the day or night

Rights of a person arrested:

a. Assisted by counsel at all times
 Counsel must be independent and competent
b. Remain silent
c. To be informed of the above rights
d. To be visited by the immediate members

Custodial investigation – in a form of an “invitation” to person who is

investigated in connection with the offense he is suspected to have committed

Effect of an ILLEGAL ARREST on JURISDICTION of the court

 Legality of the arrest affects only the jurisdiction of the court over the
 Waiver of an illegal warrantless arrest does not mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest.

Judgment, defined.
 Adjudication by the court
 That accused is guilty or not guilty
 Imposition of the proper penalty
 And civil liability
Formal Requisites of Judgment:
1. Written in the official language
2. Personally and directly prepared an signed by the judge
3. Must contain clearly and distinctly
1. Statement of facts
2. Law

Jurisdictional requirements:
a. over the subject matter
b. territory
c. person of the accused

Contents of a judgment of CONVICTION

a. legal qualification
b. aggravating and mitigating circumstances
c. participation of the accused; principal, accomplice, accessory
d. penalty imposed
e. civil liability or damages

Contents of a judgment of ACQUITTAL:

1. state whether the evidence of the prosecution:
1. absolutely failed to prove the guilt
2. merely failed to prove his guilt beyond reasonable doubt
ii. determine if the act or omission from which the civil liability might arise did not
Note: verdict of acquittal is immediately final!

Rule on duplicitous complaint or information; two or more offenses in

a single information or complaint – 2-in-1
 Remedy: MOTION TO QUASH (during arraignment)
 Exception: when the law prescribes a single punishment for various
What happens if the accused fails to object before trial?
 Waiver
 May be convicted for as many offenses as are charged and proved, and
impose penalty for each offense!
 Note: can no longer be raised on appeal
Judgment rendered by a judge who did not hear the case
 Valid!
 Valid even if he merely relied on the records of the case
 especially where the evidence on record is sufficient to support its

Variance doctrine; variance between allegation and proof

a. offense proved is different from the offense charged
b. offense charged is either included in the offense proved or necessarily
includes the offense proved

General rule: convicted only of the offense charged

Exception: variance doctrine; may be convicted of the:

 offense proved which is included in the offense charged or of the offense

charged which is included in the offense proved

When an offense includes or is included in another

1. essential elements or ingredients of the offense charged
constitute or form part the offense proved

Promulgation of Judgment
1. by reading in the presence of the accused and any judge
2. for light offense – in the presence of counsel or representative
3. may be promulgated by the clerk of court if the judge is absent or outside
the province or city
4. if the accused is confined or detained in another province or city, may be
promulgated by the executive judge of the RTC having jurisdiction over the place
of confinement or detention

Notice on the promulgation of judgment

 given by the clerk of court personally to the accused or thru his bondsman
or warden and counsel
 if tried in absentia – served at his last known address

What if the accused fails to appear in the promulgation?

1. Shall be made by recording the judgment in the criminal docket
2. Serve him a copy at his last known address or thru his counsel

Judgment for conviction:

 Accused fails to appear without just cause
 He shall lose the remedies available against the judgment
 Court shall order his arrest
 Within 15 days from promulgation of judgment, accused may surrender
and file a motion for leave of court to avail the remedies
Modification of Judgment
1. Upon motion of the accused
2. Before the judgment becomes final or before appeal is perfected

When judgment becomes FINAL

a. After the lapse of the period for perfecting an appeal; or
b. When the sentence has been partially or totally satisfied or served
c. When the accused has waived his right to appeal
d. He has applied for probation

Entry of judgment
 After judgment has become final, it shall be entered in accordance with
Section 8, Rule 120, Rules of Court


Who may file? – Accused
When filed? – any time before the judgment of conviction becomes final

The court may:

a. Grant a new trial or reconsideration
b. With the consent of the accused
c. Without waiting for the motion of the accused

Grounds for new trial

a. Errors of law
b. Irregularities prejudicial to the substantial rights
c. New and material evidence has been discovered*
1. Discovered after trial
2. accused could not have discovered and produced
3. Even with the exercise of reasonable diligence
4. And which if introduced would probably change the judgment
1. It must be material
2. Must affect the merits and produce a different result if
3. must concur

Grounds for reconsideration

1. errors of law
2. errors of fact
1. in writing
2. state the grounds
1. if based on new and material evidence it should be supported by
Notice of the motion
 given to the prosecutor

When hearing on the motion is required

 when it calls for a resolution of a question of fact

a. based on errors of law or irregularities
 all the proceedings and evidence affected shall be
1. set aside; and
2. taken anew
ii. the court may allow additional evidence
b. newly-discovered evidence
i. evidence already adduced shall stand
ii. the newly-discovered evidence shall be taken together with the evidence
already in record
c. in all cases where it is granted
i. original judgment shall be set aside or vacated
ii. new judgment shall be rendered

 Not a natural right
 Merely a statutory privilege
 May be exercised in the manner and in accordance with the provisions of
 Once granted by law, its suppression is tantamount to a violation of due
 Subject: judgment or final order

Who may appeal?

 Any party
 Exception: accused will be placed in double jeopardy

What if the accused appeals?

 Waives his right against double jeopardy
 Runs the risk of being sentenced to a penalty higher than that imposed by
the trial court

Who may institute proceedings before the CA or SC?

 Only the OSG or Solicitor General (as appellate counsel)
 He should be given the opportunity to be heard in behalf of the

Case: appellate court failed to notify the Solicitor General of its resolution on a
petition filed by the accused and failed to require to file its comment – effect:
deprivation of a fair opportunity to prosecute and prove its case
Rule: a petition for review should be filed by the Solicitor General who is solely
vested with the authority to represent the people


 Opens the entire case for review
 Appellate court may correct errors; or
 reverse the trial court’s decision on grounds other than those that the
parties raised as errors
EFFECT of appeal on civil case:
 in contrast with the criminal case
 no error will be considered by the appellate court unless stated in the
assignment of errors, except when:
1. error affects the jurisdiction
2. affects the validity of the judgment appealed
3. closely related or dependent on an assigned error
4. plain error or a clerical error

Change of theory on appeal – not allowed!

1. change his theory on appeal
2. nor raise in the appellate court any question of law or of fact that was not
raised in the court below
3. or which was not within the issue raised in their pleading
WHERE and HOW to appeal?
a. RTC – cases decided by MTC
1. Notice of appeal served to the RTC
2. filed with the court which rendered the judgment
3. serve a copy upon the adverse party (personal service)
 No notice of appeal – RTC imposed the reclusion perpetua; the CA will
automatically review the judgment
b. CA or SC – cases decided by RTC
1. Judgment by the RTC in its original jurisdiction
1. Notice of appeal
2. Judgment by the RTC in its appellate jurisdiction
1. File a petition for review
b. SC – cases decided by CA
i. Petition for review on certiorari

When appeal is to be taken

1. Within 15 days from promulgation of judgment
2. The period shall be suspended from the time a motion for new trial or
reconsideration is filed until overruled
May an appeal be withdrawn?
Yes. As long as the record has not been transmitted or forwarded to the
appellate court. When it is withdrawn – judgment becomes final!
1. Motion to withdraw is filed
2. Filed before the RTC
EFFECT of appeal by any of several accused
 Only binds those who appealed
 Will not affect those who did not appeal
 Except: judgment is favorable to others; this time it will bind the others
who did not appeal
 Except: procedural consequences; the stay of execution will not benefit
those accused who failed to file on time
Appeal from the civil aspect
 Shall not affect the criminal aspect
 Within 15 days from promulgation of judgment
Period to apply for probation
 Within 15 days from promulgation
Stay of execution
 Upon perfection of the appeal
 procedural consequences; the stay of execution will not benefit those
accused who failed to file on time
COURT OF APPEALS may dismiss:
1. if the appellant fails to file within the time prescribed
1. except: appellant is represented by a counsel de oficio
b. if the appellant escapes
Ground for reversal of judgment or its modification
Rule: CA is mandated not to reverse or modify a judgment
Except: After examination of the record and evidence, it finds that there is an
error which injuriously affects the substantial rights of appellant

Rule if the opinion of the Supreme Court en banc is equally divided

1. It shall again be deliberated (re-deliberation)
2. If no decision is reached, judgment of conviction of the lower court shall
be reversed and the accused acquitted!


 Remedies available in a civil action; since a civil action is deemed
instituted in the criminal case, it follows that provisional remedies are also
available, save in cases where the civil action is reserved, or waived, or
separately filed
To avail:
 the criminal action must be one with a corresponding civil liability
 the civil action must be one arising from the offense charged and which is
instituted in the said criminal action
 IF, civil action has been waived, reserved, or instituted separately – the
provisional remedy may not be availed of. Instead, it may be applied for in the
separate civil action
Who may avail? – offended party
What are these provisional remedies?
1. Preliminary attachment
2. Preliminary injunction
3. Receivership
4. Replevin
5. Support pendente lite

When preliminary attachment is available

 when the civil action is properly instituted in the criminal action
 when the accused is about to abscond
 when criminal action is based on claim for money or embezzlement or
 when accused has concealed, removed, or disposed of his property, or is
about to do so
 when the accused resides outside the Phils.
 May be availed of without the need for a showing that the accused has
concealed, removed, or disposed of his property or is about to do so.