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?
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.
1|UNIVERSITY OF SAN CARLOS
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.
 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.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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
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
2|UNIVERSITY OF SAN CARLOS
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
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
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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
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.
3|UNIVERSITY OF SAN CARLOS
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)
 Exclusive jurisdiction over offenses involving damage to
property through criminal negligence
 Violations of the BP22
 Special jurisdiction to decide on applications for bail in criminal
cases in the absence of all RTC judges in a province or city
 Election offenses (e.g. failure to vote, failure to vote)
SUMMARY PROCEDURE
A. Violations of traffic laws, rental law and municipal and
city ordinances
B. 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
C. Damage to property through criminal negligence
where the imposable fine does not exceed P10,000
CRIMINAL JURISDICTION OF REGIONAL TRIAL COURTS
REGIONAL TRIAL COURTS
 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
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
 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
CRIMINAL JURISDICTION OF THE SANDIGANBAYAN
RULES TO DETERMINE JURISDICTION OF SANDIGANDABAYAN
Determine if the offense charged is under Sec 4 (a)
 If yes, determine the position held by the public officer
 If exclusively listed under Sec 4 (a) – Sandiganbayan
 If not, look at the salary grade:
 If 27 and above – Sandiganbayan
 If below 27 – MTC
 If no, determine if the offense was committed in relation to his office
 If not – MTC
 If yes, determine if public official is listed in Sec 4 (a)
 If yes – Sandiganbayan
 If no, determine salary grade:
 If 27 and above – Sandiganbayan
 If below 27 – regular courts
OFFENSES
Jurisdiction is set by PD 1606 as amended
Offenses under Sec 4 a
 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
4|UNIVERSITY OF SAN CARLOS
d. Officers of the PNP while occupying the position of provincial
director and those holding the rank of senior superintendent
or higher
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
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
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
 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
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,
5|UNIVERSITY OF SAN CARLOS
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.
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.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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)
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?
6|UNIVERSITY OF SAN CARLOS
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?
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?
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

1. Where one party is the government

2. Where one party is a public officer or employee and the CHAPTER II. PROSECUTION OF OFFENSES (RULE 110)
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 INSTITUTION OF CRIMINAL ACTIONS
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 CRIMINAL ACTIONS
7. Other cases which the President may determine in the interest
of justice or upon the recommendation of the Secretary of
Justice. PURPOSE OF CRIMINAL ACTION
To determine the penal liability of the accused and if he be found guilty,
to punish him for it.

Parties of the action:

People of the Philippines and the accused.
Take note: The offended party is merely a witness of the state.

Distinguish “institution” from “commencement” of an action.

For offenses which require a preliminary investigation, the criminal
action is instituted by filing the complaint for preliminary investigation.
The criminal action is commenced when the complaint or information is
filed in court.
HOW CRIMINAL ACTIONS ARE INSTITUTED
It would depend whether or not the offense requires preliminary
investigation.

 If preliminary investigation is required

File the complaint with the office of the prosecutor for the
purpose of conducting the requisite preliminary investigation

 If preliminary investigation is not required –

A. File the complaint or information directly with the MTC
B. File the complaint with the office of the prosecutor

DIRECT FILING
In Regional Trial Courts and Metropolitan Trial Court of Manila and other
chartered cities

How are criminal actions in Manila and other chartered cities

instituted?
A special rule applies in this case. No direct filing is allowed. Complaint
shall be filed with the office of the prosecutor, unless otherwise provided
in their charters.

Can there be direct filing of an information or complaint with

the RTC?
NO, because the jurisdiction of RTC covers offenses which require
preliminary investigation. (RTC’s jurisdiction – more than 6 years)

When is preliminary investigation required?

When the penalty is at least 4 years, 2 months and 1 day.

In case of conflict between a city charter and a provision of

the Rules, which shall prevail?
The charter should prevail, being a substantive law.

EFFECT OF THE INSTITUTION ON THE PRESCRIPTIVE PERIOD

General rule: The institution of the criminal action shall interrupt the
period of prescription of the offense.
Exception: Unless otherwise provided in special laws.

What is the effect of the institution of the criminal action on 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 provided in special

7|UNIVERSITY OF SAN CARLOS

CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

laws. The rule does not apply to violations of municipal ordinances and
special laws. The prescriptive periods for violations of special laws are
interrupted only by the institution of judicial proceedings for their
investigation and punishment, while violations of municipal ordinances
prescribe after two months.
People v. Bautista
The filing of the complaint with the fiscal’s office suspends the running
of the prescriptive period and it remains tolled from the time the
complaint was filed until such time that respondent is either convicted
or acquitted.
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

Francisco v. Court of Appeals

PROSECUTION OF THE CRIMINAL ACTION
The filing of the complaint in the MTC, even if it be merely for purposes
of preliminary investigation or examination interrupts the period of
prescription, even if the court where the complaint or information was
filed cannot try the case on its merits.
WHO MUST PROSECUTE THE CRIMINAL ACTION
RULE ON PRESCRIPTION FOR VIOLATIONS OF SPECIAL LAWS
AND MUNICIPAL ORDINANCES
Who must prosecute the criminal action?
General Rule: All criminal actions commenced by the filing of a
RA No. 3326
complaint or information shall be prosecuted under the direction and
Law which governs the period for prescription for violations penalized
control of the prosecutor.
by special acts and municipal ordinances.
Exception:
Penalty/Crime Prescriptive period However, in the Municipal Trial Courts and Municipal Circuit Trial Courts,
if the prosecutor is not available, the offended party, any peace officer,
Only fine, imprisonment for not more or other officer charged with the enforcement of the law violated may
After 1 year
than 1 month, or both prosecute.
Imprisonment for more than 1 month
After 4 years This authority ceases upon actual intervention by a prosecutor or upon
but less than 2 years
Imprisonment for 2 years or more but elevation of the case to the RTC.
After 8 years
less than 6 years
Imprisonment for 6 years or more 12 years A criminal action is prosecuted under the direction and control of the
public prosecutor, even if there is a private prosecutor.
Treason 20 years
Offenses against any law administered Rationale: Since a criminal offense is an outrage against the sovereignty
After 5 years of the State hence a representative of the State shall direct and control
by the Bureau of Internal Revenue
the prosecution thereof.
Violations of municipal ordinances After 2 months
What are the powers and discretion of the public prosecutor?
1. Determine whether a prima facie case exists
Violations of municipal ordinances
2. Decide which of the conflicting testimonies should be believed
3. Determine which witnesses to present in court
Zaldivia v. Reyes
4. Determine what case to file and whom to prosecute
In cases involving violations of municipal ordinances, the period of
prescription shall be suspended only when judicial proceedings are
Can the public prosecutor turn over the actual prosecution of
instituted.
the criminal case to the private prosecutor?
Yes, but he may at any time take over the actual conduct of the trial.
Jade Wei Parking Systems Corp case
In cases of violations of ordinances – file with the MTC within 2 months.
Pinote v. Ayco
Otherwise, crime will prescribe.
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
Violations of special laws
presentation of defense witnesses in the absence of the public
prosecutor is a clear transgression.
Sanrio Company Limited v. Lim
Prescriptive period for violation of special laws is interrupted by the
Can the Supreme Court order the prosecution against whom
institution of proceedings against respondent.
the prosecutor does not find sufficient evidence to support at
least a prima facie case?
People v. Pangilinan
No, except when there is an unmistakable showing of grave abuse of
There is no more distinction between cases of RPC and special law
discretion on the part of the prosecutor. But before filing for mandamus
with respect to the interruption of prescriptive period. Preliminary
to compel a fiscal to include another co-accused in the information, the
investigation interrupts the prescription.
party must first avail himself of other remedies such as the
filing of a motion for inclusion.
Sec v. Interport Resources Corporation
The filing of a complaint for purposes of preliminary investigation,
To whom should you appeal the decision of the prosecutor?
interrupts the period of prescription of criminal responsibility.
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.)

8|UNIVERSITY OF SAN CARLOS

CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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.
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.
9|UNIVERSITY OF SAN CARLOS
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.
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:
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

1. Waived
2. Reserved Who is the “offended party”?
3. Instituted prior The offended party is the person actually injured or whose feeling is
offended. He is the one to whom the offender is also civilly liable under
Can the Offended Party intervene in the prosecution of the Article 100 of the RPC.
criminal action even if there is no civil liability?
Yes. The offended party, who has neither reserved, waived, nor When is a complaint required?
instituted the civil action may intervene, and such right to intervene A sworn written complaint is required if the offense is one which cannot
exists even when no civil liability is involved. (Paul Lee v. Chin Lee be prosecuted de officio, or is private in nature (adultery,
citing Lim Tek Goan v. Yatco) concubinage, abduction, seduction, acts of lasciviousness, defamation
consisting in the imputation of any of the above offenses), or where it
Do the offended parties have the right to move for the dismissal pertains to those cases which need to be endorsed by specific
of a case? public authorities (Anti-Dummy Board with respect to the Anti-
No. The right belongs only to the government prosecutor who is the Dummy Law, National Water and Air Pollution Control Commission with
representative of the plaintiff. respect to the Anti-Pollution Law).

Can the offended party file a civil action for certiorari in his own What is an information?
name if the RTC dismisses an information? An information is an accusation in writing charging a person with an
Yes. In case of grave abuse of discretion amounting to lack of offense, subscribed by the prosecutor and filed with the court.
jurisdiction, the petition may be filed by the offended party because the
offended party has an interest in the civil aspect of the case. What is the difference between a complaint and an
information?

THE COMPLAINT AND INFORMATION COMPLAINT INFORMATION

May be signed by the Always signed by
offended party, any prosecuting officer
What is a complaint? peace officer, or other
A complaint is a sworn written statement charging a person with an public officer charged
offense, subscribed by the offended party, any peace officer, or other with the enforcement of
public officer charged with the enforcement of the law violated. the law violated
Sworn to by the person Need not be under oath
If the complaint is not sworn to by the offended party, is it void? signing it since the prosecuting
No. A complaint presented by a private person when not sworn to by officer filing it is already
him is not necessarily void. The want of an oath is a mere defect of acting under his oath of
form which does not affect the substantial rights of the defendant on office
the merits. May be filed either with Always filed with the court
the office of the
Who may file a complaint? prosecutor or with the
The complaint may be filed by the offended party, any peace officer, or court
other public officer charged with the enforcement of the law violated.
When is a complaint or information deemed sufficient?
If the offended party dies before he is able to file a complaint, A complaint or information is sufficient if it states:
can his heirs file it in his behalf?
No. The right to file a criminal action is personal and abates upon the 1. the name of the accused
death of the offended party. It is not transmissible to the heirs. 2. the designation of the offense given by the statute
3. the acts or omissions complained of as constituting the
Can you file a criminal complaint against a juridical person? offense
No, a criminal action cannot lie against a juridical person. It the 4. the name of the offended party
corporation violates the law, the officer, through whom the corporation 5. the approximate date of the commission of the offense
acts, answers criminally for his acts. 6. the place of the commission of the offense

What is the form required for the complaint or information?

When is the error in the name of the accused not fatal to an
The complaint or information shall be in writing, in the name of the
information?
People of the Philippines and against all persons who appear to be
Error in the name of the accused will not nullify the information if it
responsible for the offense involved.
contains sufficient description of the person of the accused.
Why should a complaint or information be in the name of the
When should the error in the name or identity be raised by the
People of the Philippines?
accused?
Criminal actions must be commenced in the name of the People because
The error should be raised before arraignment, or else it is deemed
just as a crime is an outrage against the peace and security of the people
waived.
at large, so must its vindication be in the name of the People. However,
it the action is instituted in the name of the offended party or of a
X was charged with homicide. Can he be possibly be convicted
particular city, the defect is merely of form and may be cured at any
of murder?
state of the trial.
Yes. If the recitals in the complaint or information of the acts and
omissions constituting the offense actually allege murder, X can be
Why should the complaint or information be in writing?
convicted of murder. This is because it is the recital of facts and not the
The complaint or information should be in writing so that the court has
designation of the offense that is controlling.
a basis for its decision, to inform the accused of the nature and cause
of the accusation to allow him to present his defense, and so that
nobody will forget the charge, given the fallibility of human memory.

10 | 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
X was charged with estafa, but the recital of facts actually
alleges theft. Can X be convicted of theft?
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.
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).
11 | U N I V E R S I T Y O F S A N C A R L O S
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.
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
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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.
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
12 | U N I V E R S I T Y O F S A N C A R L O S
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.
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?
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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.
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.
13 | U N I V E R S I T Y O F S A N C A R L O S
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?
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.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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.
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
14 | U N I V E R S I T Y O F S A N C A R L O S
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.
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.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

private offended party is a party in the civil action. Moreover, the

WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY quantum of evidence in the civil action is only preponderance of
evidence, while that required in the criminal action is proof beyond
reasonable doubt.
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 PREJUDICIAL QUESTION
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.
EFFECT OF DEATH ON CIVIL ACTIONS
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.
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.
Does suspension include dismissal?
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.

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

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

15 | 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

an office in the executive department exercising powers akin to those of

CHAPTER IV. PRELIMINARY INVESTIGATION a court. BUT THE SIMILARITY ENDS THERE

Santos v. Go 2005
A public prosecutor does not perform acts of a quasi-judicial body
NATURE OF PRELIMINARY INVESTIGATION because the latter is an organ of a government other than a court and
legislature which performs adjudicatory functions.

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.
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.

What is the role of a prosecutor?

To determine probable cause and to file the corresponding information PRELIMINARY INVESTIGATION v. EXAMINATION
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. Preliminary Preliminary
investigation examination
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 Conducted by the Conducted by the
persons responsible for it to enable the fiscal to prepare his complaint prosecutor to determine judge to determine
or information. It is not a trial on the merits and has no purpose but to Authority whether accused should probable cause for the
determine whether there is probable cause to believe that an offense be held for trial issuance of a warrant
has been committed and that the accused is probably guilty of it. It of arrest
does not place the accused in jeopardy.

Nature Executive in nature Judicial in nature

NATURE OF PRELIMINARY INVESTIGATION

What is the difference between criminal investigation and

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.
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.

Cruz v. People 1994, Sales v. Sandiganbayan 2001 PROBABLE CAUSE IN PRELIMINARY INVESTIGATION
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 PROBABLE CAUSE
officer acts as a quasi-judicial officer.
What is probable cause?
Bautista v. Court of Appeals 2001 The existence of such facts and circumstances as would lead a person
A preliminary investigation is very different from other quasi-judicial of ordinary caution and prudence to entertain an honest and strong
proceedings. A prosecutor in a PI does not determine the guilt or suspicion that the person charged is guilty of the crime subject of the
innocence of the accused nor does he exercise adjudication nor rule- investigation.
making functions. However, like quasi-judicial bodies, the prosecutor is
Probable cause is based on what?

16 | 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
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
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?
17 | U N I V E R S I T Y O F S A N C A R L O S
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.
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.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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.
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 warrantrebellion, based on the letters of CIDG investigators claiming that
involving even an offense which requires a PI. It is not a PI. It is a
summary investigation.
What is the purpose? to determine the validity of the warrantless arrest information was filed.
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)
18 | U N I V E R S I T Y O F S A N C A R L O S
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.
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
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
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
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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.
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.
What should the complaint consist of?
1. The address of the respondent
2. Complaint shall be accompanied by:
a) Affidavit of complainant
19 | U N I V E R S I T Y O F S A N C A R L O S
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.
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
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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
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
20 | U N I V E R S I T Y O F S A N C A R L O S
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;
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.
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407
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;
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).
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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
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:
CRIMINAL PROCEDURE l Atty. Eduardo Soleng l TDCI (Revised 2016) JD2 407

1. What case to file

2. Whom to prosecute
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.

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