MLQU SCHOLL OF LAW

COURSE MATERIAL IN CRIM PRO

By: Justice Carlito B. Calpatura

PART III

PROSECUTION OF OFFENSES
A. The National Prosecution Service (Originally created under P.D. No. 1275; It was later
amended by R.A. No. 10071)-
The National Prosecution Service has existed before its creation in the form of the
Prosecution Staff of the Bureau of Justice and later, the Department of Justice during the
American colonial era. The National Prosecution Service was created by virtue of Presidential
Decree No. 1275, s. 1978. P.D. No. 1275 was later amended and repealed by Republic Act No.
10071, or the Prosecution Service Act of 2010, which strengthened the powers and organization
of the National Prosecution Service (Wikipedia).

The National Prosecution Service is divided into four levels:

1. The Prosecution Staff, headed by the Prosecutor General(formerly called Chief

State Prosecutor), which is administratively under the Office of the Secretary of
Justice;
2. The Regional Prosecution Offices, headed by Regional Prosecutors;
3. The Offices of the Provincial Prosecutors (and their assistants); and
4. The Offices of the City Prosecutors(and their assistants).

RA 7001 provides:

Section 3. Creation of the National Prosecution Service. - There is hereby created and
established a National Prosecution Service to be composed of the prosecution staff in the Office
of the Secretary of Justice and such number of regional prosecution offices, offices of the
provincial prosecutor and offices of the prosecutor as are hereinafter Provided, which shall be
primarily responsible for the preliminary investigation and prosecution of all cases involving
violations of penal laws under the supervision of the Secretary of Justice, subject to the
provisions of Sections 4, 5 and 7 hereof.

Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice
includes authority to act directly on any matter involving national security or a probable
miscarriage of Justice within the jurisdiction of the prosecution staff, regional prosecution office,
and the provincial prosecutor or the city prosecutor and to review, reverse, revise, modify or
affirm on appeal or petition for review as the law or the rules of the Department of Justice (DOJ)
may provide, final judgements and orders of the prosecutor general, regional prosecutors,
provincial prosecutors, and city prosecutors.

For purposes of determining the cases which may be acted on, directly by the Secretary of
Justice, the phrase "national security" shall refer to crimes against national security
as Provided under the Penal Code, Book II, Title 1, and other cases involving acts of terrorism as
defined under the Human Security Act under Republic Act No. 9372.

Section 5. The Prosecution Staff and its Functions. - There shall be in the Office of the Secretary
of Justice a prosecution staff that shall be composed of prosecuting officers in such number as
herein below determined. It shall be headed by a Prosecutor General who shall be assisted by the
following:

(a) Five (5) Senior Deputy State Prosecutors;

(b) Five (5) Deputy State Prosecutors;

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(c) Thirty five (35) Senior Assistant State prosecutors;

(d) Eighty (80) Assistant State Prosecutors; and

(e) Twenty (20) Prosecution Attorneys.

The Prosecution Staff, which shall be under the control and supervision of the Secretary of
Justice, shall have the following functions:

(1) Assist the secretary of Justice in the exercise of his/her appellate jurisdiction;

(2) Conduct the preliminary investigation and prosecution of criminal cases involving
national security, those for which task forces have been created and criminal cases whose
venues are transferred to avoid miscarriage of justice, all when so directed by the
Secretary of Justice as public interest may require;

(3) Act as counsel for the People of the Philippines in any case involving or arising from
a criminal complaint investigated by any of its prosecutors and pending before any trial
court;

(4) Investigate administrative charges against prosecutors, other prosecution officers and
members of their support staff;

(5) Prepare legal opinions on queries involving violations of the Revised Penal Code and
special penal laws; and

(6) Monitor all criminal cases filed with the Office of the Prosecutor General; maintain an
updated record of the status of each case, and adopt such systems and procedures as will
expedite the monitoring and disposition of cases.

The Prosecutor General and Senior Deputy State Prosecutors shall act as a Selection and
Promotion Board to screen for appointment or promotion to any prosecutorial position in the
Office of the Prosecutor General. The regional prosecutor, provincial prosecutor or city
prosecutor shall sit as a member of the Board whenever it considers applicants for positions in
his/her office. The Prosecutor General shall be the chairperson of the Board.

Section 6. Regional Prosecution Office. - There shall be at each administrative region, except the
National Capital Region (NCR), a Regional Prosecution Office to be headed by a Regional
Prosecutor who shall be assisted by one (1) Deputy Regional Prosecutor, one (1) Senior
Assistant Regional Prosecutor, three (3) Assistant Regional Prosecutors, and one (1) Prosecution
Attorney.

For purposes of this regionalization, the NCR shall be placed under the administrative
supervision of the Prosecutor General.

Section 7. Powers and Functions of the Regional Prosecutor. - The Regional Prosecutor shall,
under the control and supervision of the Secretary of Justice, have the following powers and
functions:

(a) Implement policies, plans, programs, memoranda, orders, circulars and rules and
regulations of the DOJ relative to the investigation and prosecution of criminal cases in
his/her region;

(b) Exercise immediate administrative supervision over all provincial and city
prosecutors and other prosecuting officers for provinces and cities comprised within
his/her region;
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(c) Prosecute any case arising within the region;

(d) When so delegated by the Secretary of Justice, resolve with finality appeals from or
petitions for review of judgements and orders of provincial and city prosecutors and their
assistants within the region in cases where the offenses charged are cognizable by the
municipal trial court. This notwithstanding, the Secretary of Justice is not precluded from
exercising his power or review over such resolutions of the regional Prosecutor in
instances where lies grave abuse of discretion on the part of the Regional Prosecutor, and
from determining the extent of the coverage of the power of review of the Regional
Prosecutors;

(e) Designate a prosecutor from any office of the provincial or city prosecutor within the
region as Acting Provincial or City Prosecutor to investigate and prosecute a case in
instances where parties question the partiality or bias of a particular city or provincial
prosecutor or where the city or provincial prosecutor voluntarily inhibits himself/herself
by reason of relationship to any of the parties within the sixth (6th) civil degree of
consanguinity or affinity;

(f) With respect to his/her regional office and the offices of the provincial and city
prosecutors within his region, he/she shall:

(1) Appoint such number of subordinate officers and employees as may be

necessary; and approve transfer of subordinate personnel within the jurisdiction of
the regional office and exercise disciplinary actions over them in accordance with
the Civil Service law, other existing laws and regulations;

(2) Approve requests for sick, vacation and maternity and other kinds of leaves,
with or without pay, for a period not exceeding one (1) year, for overtime
services; for permission to exercise their profession or to engage in business
outside of office hours; for official travel within the region for periods not
exceeding thirty (30) days; and for claims and benefits under existing laws;

(3) Exercise immediate administrative supervision over all provincial and city
prosecutors, their assistants and all other prosecuting officers of the provinces and
cities within his/her region;

(4) Investigate administrative complaints against prosecutors and other

prosecuting officers within the region and submit his/her recommendation to the
Secretary of Justice who shall, after review thereof and where warranted, submit
the appropriate recommendation to the office of the president for the latter's
consideration;

(5) Approve attendance of personnel in conferences, seminars and other training

programs within the region;

(6) Prepare the budget for the region for approval of the Secretary of Justice and
administer the same;

(7) Approve requisition for supplies, materials and equipment, as well as books,
periodicals and the like and other items for the region in accordance with the
approved supply procurement program;

(8) Negotiate and conclude contracts for services or for furnishing supplies,
materials and equipment and the likes within the budgetary limits set for the
region;
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(9) Within his/her region, monitor the submission of all reports as may be
required by the Secretary of Justice;

(10) Coordinate with the regional offices of other departments, bureaus and
agencies of the government and with local governments units in the region; and

(11) perform such other duties and functions as may be Provided by law or as
may further be delegated by the Secretary of Justice.

Section 8. The Provincial Prosecutor or City Prosecutor. - There still be for each province or
city a Provincial Prosecutor or city Prosecutor, as the case may be, who shall be assisted by at
least one (1) Deputy Provincial Prosecutor or Deputy City Prosecutor and such number of
assistant and associate prosecutors as provided for hereinafter. Provided, however, That
whenever a new province or city is created, it shall have a provincial prosecutor or city
prosecutor, a deputy provincial prosecutor or deputy city prosecutor and such number of assistant
and associate prosecutors as there are court branches therein at the ratio of two (2) prosecutors
for each branch of regional trial court, one (1) prosecutor for each branch of metropolitan trial
court or municipal trial court in cities, and one (1) prosecutor for every two (2) municipal trial
courts in municipalities or branches thereof municipal circuit trial courts.

Upon the establishment of the new province or city, position items of Prosecutor of the Office of
the Provincial Prosecutor for the mother province in excess of the new equivalent pursuant to the
ratio established above for the courts or branches thereof that remained to be served by the office
shall be transferred automatically to the Office of the provincial Prosecutor or Office of the City
Prosecutor for the new province or city, as the case may be: Provided, further, That when all or
almost all of the regional trial court branches are seated at the city, the number of prosecutors for
the city shall be proportional to the territorial jurisdiction covered by such branches of the courts.

In case a province is reverted to the mother province or a city is reconverted into a municipality
for whatever reason, all the prosecution position items of the Office of the Provincial Prosecutor
or Office of the City Prosecutor shall go to the Office of the Provincial Prosecutor for the mother
province: Provided, however, That the position title provincial prosecutor or city prosecutor for
the former province or city shall be changed to Assistant Provincial Prosecutor or Associate
Prosecutor, as the case may be, and shall have the corresponding rank provided in Section 15.

When the exigencies of the service so require, a province or city may create positions for special
counsels whose salaries and other emoluments shall come exclusively from local funds.

Section 9. Powers and Functions of the Provincial Prosecutor or City Prosecutor. - The
provincial prosecutor shall:

(a) Be the law officer of the province or city, as the case may be:

(b) Investigate and/or cause to be investigated all charges of crimes, misdemeanors and
violations of penal laws and ordinances within their respective jurisdictions, and have the
necessary information or complaint prepared or made and filed against the persons
accused. In the conduct of such investigations he or any of his/her assistants shall receive
the statements under oath or take oral evidence of witnesses, and for this purpose may by
subpoena summon witnesses to appear and testify under oath before him/her, and the
attendance or evidence of an absent or recalcitrant witness may be enforced by
application to any trial court;

(c) Have charge of the prosecution of all crimes, misdemeanors and violations of city or
municipal ordinances in the courts at the province or city and therein discharge all the
duties incident to the institution of criminal actions, subject to the provisions of second
paragraph of Section 5 hereof.
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1. Dual nature of Criminal Action.

a)The criminal aspect
1. Rule 110, Sec. 1
2. Rule on Juvenile in Conflict with the Law, Sec. 11
3. Salazar v. People, 411 SCRA 599 (2003)
4. Lim v. Kou Co Ping, GR 175256, August 23, 2012 (Estafa; two civil cases)

b) The civil aspect

1.Art. 100-113, RPC
2. Independent civil action, not covered.
3. Arts. 29, 32, 33, 34 and 2176, Civil Code
4. Rule 111, Sec. 1 & 3.

GENERAL RULE: Injunction may not issue to restrain criminal prosecution of an offense.
1. Asutilla v. PNB, G.R. L-51354, Jan 15, 1986

Exception:
1.Injunction may be issued to restrain criminal prosecution in the following:

a. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano,
et al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions (Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra; Fortun v.
Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub-judice (De Leon v. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority (Planas v. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33
Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang v. People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October
29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia v. Ocampo, CA-G.R. No.
4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto v.
Castelo, 18 L.J. [1953], cited in Rañoa v. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf.
Guingona, et al. v. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577);
j. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied (Salonga v. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438)[;
and]
[k.] To prevent the threatened unlawful arrest of petitioners (Rodriguez v. Castelo, L-6374,
August 1, 1953)

THREE MODES OF INITIATING CRIMINAL ACTION

1. INQUEST
2. DIRECT FILING
3. PRELIMINARY INVESTIGATION
2. Criminal actions, how instituted
 Complaint
 1. Rule 110, Secs. 2, 3 & 4
 2. DOJ-NPS Manual, Part III, Sec. 8
 3. Rule 110, Sec. 8 (acts or omissions)

3. Who may file?

 offended party; Rule 110, Sec. 12
 any peace officer;
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 other public officer charged with the enforcement of the law violated.
4. Against whom?
1. Respondent; Rule 110, Secs. 7

4. Crimes that cannot be prosecuted de officio (Private Crimes)

A. Crimes must be filed by the offended party (Rule 110, Sec. 5):
 Adultery and concubinage;
 Seduction, abduction and acts of lasciviousness;
 Criminal action for defamation which consists in the imputation of any of the offenses
mentioned above:
B. Alternative complainants:
 parents, grandparents or guardian,
 State.
Note the following rules:
1. The offended minor, has the right to initiate the prosecution of the offenses of seduction,
abduction and acts of lasciviousness, unless she is incompetent or incapable of doing so.
2.Where the offended minor fails to file the complaint, her parents, grandparents, or guardian
may file the same.
3.The right to file the action by the alternative complainants shall be exclusive of all other
persons and shall be exercised successively in the order provided, except as stated in the
preceding paragraph.

5.Control of prosecution/Power to prosecute

a.Direction and control of the public prosecutor

b.Has discretion of whether, what and whom to charge.

c. A.M. No. 02-2-07, April 10, 2002 (effective May 1, 2002), amended Rule 110 Sec. 5-
regarding appearance of private prosecutor; Sec. 16, par. III.4, A.M. No. 15-06-10-SC
(RGCTCC).

Read:
1. People v. Beriales, 76 SCRA 42
2. Republic v. Sunga, 162 SCRA 191
3. People v. Ilarde, 125 SCRA 607
4. People v. Madali, 349 SCRA 104
5. Crespo v. Mogul, 151 SCRA 462
6. Roberts v. CA, 254 SCRA 307
7. People v. Galigao, GR Nos. 140961 -63, January 14, 2003

Limitation:
o ANTHONY T. REYES vs. PEARLBANK SECURITIES, INC., G.R. NO.
171435, JULY 30, 2008- Judicial policy of non-interference.

Intervention of the offended party

 Rule 110, SEC. 16. Intervention of the offended party in criminal action.—Where the
civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule
111, the offended party may intervene by counsel in the prosecution of the offense;
 JOSE RAMISCAL, JR. vs. SANDIGANBAYAN, ET AL., G.R. NO. 140576-99, DEC 3,
2004- Private prosecutor cannot appear to prosecute violation of Sec. 3 (e), R.A. 3019
because there is no private offended party. The case is a public offense and the offended
party is the government.
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 G.R. No. 181658, August 07, 2013, LEE PUE LIONG A.K.A. PAUL LEE, VS. CHUA
PUE CHIN LEE- In perjury case, the offended party can intervene.

PROCEDURE ON PROSECUTION OF CIVIL ACTION

a)Rule on implied institution of civil action with criminal action

Rule 111, SECTION 1. Institution of criminal and civil actions.—

When a criminal action is instituted, the civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted with the criminal action unless the
offended party:
 waives the civil action;
 reserves the right to institute it separately; or
 institutes the civil action prior to the criminal action.

When to make reservation?

 It shall be made before the prosecution starts presenting its evidence; and
 under circumstances affording the offended party a reasonable opportunity to make such
reservation.
 JAIME U. GOSIACO vs. LETICIA CHING AND EDWIN CASTA, G.R. NO. 173807, APRIL
16, 2009 – Separate civil action for BP 22 can be maintained against the corporation
notwithstanding the provisions of Rule 111, Sec. 1 (b) of the Rules of Criminal Procedure.
The corporation is not subsidiarily liable to the complainant for the inability to pay of the
accused-signatory to the corporate check

b) When civil action may proceed independently

 Rule 111, SEC. 3-In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may be brought by the offended party. It shall
proceed independently of the criminal action and shall require only a preponderance of
evidence.

B.1.Limitations:

 In no case, however, may the offended party recover damages twice for the same act or
omission charged in the criminal action. (3a)
 In independent civil action, no reservation is necessary and even if reserved, it can be filed
anytime (Safeguard Security Agency, Inc. and Admer Pajarillo vs. Lauro Tangco, et al.,
G.R. No. 165732, Dec 14, 2006.

c) When separate civil action is suspended

Rule 111, SEC. 2. Priority of criminal action

a)If the criminal action was filed ahead, the separate civil action arising therefrom cannot be
instituted until final judgment has been entered in the criminal action.

b)If the civil action was filed ahead, but there is no judgment yet, the civil action shall
1) be suspended until final judgment is rendered in the criminal action; OR
2) upon motion of the offended party, it may be consolidated, tried and decided jointly with
the criminal action In such event, the evidence already adduced in the civil action shall be
deemed automatically reproduced in the criminal action without prejudice to the right of the
prosecution to cross-examine the witnesses presented by the offended party in the criminal case
Page 8 of 21/Crim Pro Part III/ JCBC

and of the parties to present additional evidence.

EFFECT OF SUSPENSION-

 During the pendency of the criminal action, the running of the period of prescription of the
civil action which cannot be instituted separately or whose proceeding has been suspended
shall be tolled.

EFFECT ON THE CIVIL ACTION-

 The extinction of the penal action does not carry with it extinction of the civil action.
 The civil action based on delict shall be deemed extinguished if there is a finding in a final
judgment in the criminal action that the act or omission from which the civil liability may
arise did not exist.

EFFECT ON THE CRIMINAL ACTION

 Judgment in the civil action absolving the defendant does not bar his criminal prosecution
for the same ac or omission (Rule 11, Sec. 5)

d) Effect of death of the accused or convict on civil action

Rule 111, SEC. 4.

 Accused dies before arraignment, case shall be dismissed without prejudice to any civil
action the offended party may file against his estate.
 Accused dies after arraignment and during the pendency of the criminal action, his
criminal and civil liability arising from the delict are extinguished.
 Independent civil action instituted under Sec. 3, Rule 111 or which thereafter is instituted to
enforce liability arising from other sources of obligation may be continued against the
estate or legal representative of the accused after proper substitution or against said estate,
as the case may be.
 Heirs of the accused may be substituted for the deceased without requiring the appointment
of an executor or administrator and the court may appoint a guardian ad litem for the minor
heirs.
 A final judgment entered in favor of the offended party shall be enforced in the manner
especially provided in these rules for prosecuting claims against the estate of the deceased.

EFFECT OF DEATH OF THE ACCUSED/CONVICT ON THE CIVIL ACTION-

 PEOPLE vs. ROGELIO BAYOTAS y CORDOVA, G.R. NO. 102007, SEPT 2, 1994, EN
BANC- Death of the accused pending appeal of his conviction extinguishes his criminal
and civil liability. In People vs. Jaime Ayochok y Tauli, G.R. No. 175784, August 25, 2010,
it was clarified that what is extinguished is the civil liability of the accused arising from the
crime (ex delito) and not those arising from other sources of obligation (1157, Civil Code).

 Hence, the criminal case against the deceased accused shall be dismissed without
prejudice to the filing of a separate independent civil action (Jimmy T. Go vs. Alberto T.
Looyuko, G.R. No. 147923, and companion cases, October 26, 2007.

Rule on filing fees in civil action deemed instituted with the criminal action
Rule 111, Sec. 1.
 Moral, nominal, temperate, or exemplary damages without specific amount, the filing fees
therefor shall constitute a first lien on the judgment awarding such damages;

 Where the amount of damages, other than actual, is specified in the complaint or
information, the corresponding filing fees shall be paid by the offended party upon the
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filing thereof in court;

 Except as otherwise provided in these Rules, no filing fees shall be required for actual
damages.

Rule on filing fees in civil action deemed instituted with the criminal action

 Batas Pambansa Blg. 22 cases, shall be deemed to include the corresponding civil action.
No reservation to file such civil action separately shall be allowed. Upon filing of the
aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees
based on the amount of the check involved, which shall be considered as the actual
damages claimed.

 In Estafa cases, where the offended party fails to manifest within 15 days following the
filing of information that the civil liability arising from the crime has been or would be
separately prosecuted, docket fee must be paid based on the amount defrauded(Rule 141,
Sec. 21-a);

Provisional Remedies

1. Nature

Rule 127, Section 1. Availability of provisional remedies. – The provisional remedies in civil
actions, insofar as they are applicable, may be availed of in connection with the civil action
deemed instituted with the criminal action.

2. Kinds of provisional remedies

 Sec. 2. Attachment. – When the civil action is properly instituted in the criminal action as
provided in Rule 111, the offended party may have the property of the accused attached as
security for the satisfaction of any judgment that may be recovered from the accused in the
following cases:
 (a) When the accused is about to abscond from the Philippines;
 (b) When the criminal action is based on a claim for money or property embezzled or
fraudulently misapplied or converted to the use of the accused who is a public officer,
officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his
employment as such, or by any other person in a fiduciary capacity, or for a willful
violation of duty;
 (c) When the accused has concealed, removed, or disposed of his property, or is about to do
so; and
 (d) When the accused resides outside the Philippines.

 Applies only to civil action deemed instituted with criminal action;

 Provisional remedies under Rules 57 to 61 may be applied if proper.
 Rule 57 & 58, 2019 Rule of Civil Procedure

INQUEST
A. Concept; how commenced/documents required(NPS Manual 2017); who conducts;
termination/compliance with Art. 125 of the RPC; specific supporting documents in Homicide,
Murder, Parricide, Drugs cases(Id., Sec. 4); theft/robbery/anti-fencing(Id.) Rape, seduction;
forcible abduction with rape; violation of the Anti-Carnapping Law(RA 6539); violation of the
Anti-Cattle Rustling Law(PD 533); violation of Illegal gambling Law (PD 1602); Illegal
Possession of Explosives(PD 1866); violation of Fisheries Law (PD 704); violation of Forestry
Law(PD 705).
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B. Dealing with incomplete documents (Sec. 5).

C. Presence of detainee; exceptions(Sec.6)
D. Initial duty of Inquest Prosecutor (Art. 113, Sec. 5 (a) and (b); NPS Manual, Sec. 8; where
arrest not proper (Id., Sec. 9); where arrest proper (Id., Sec. 10).
E. Determination of probable cause, if exists; if does not exists(Id., Secs. 12-15).
F. Inspection and Investigation/Submission of report in case dead body is found and reported to
IP (Id., Sec. 16).
G. Dealing with recovered articles, checking, inventory, receipt, and custody(Id., Sec. 18)
g. Release of recovered articles (Id., Sec. 19).

Read:
1. DOJ-NPS Manual Part II
2. Rule 112, Sec. 7
3. DOJ D.O. Circular No. 61
4. Art. 125, RPC
5. RJCL, Sec. 8

G.R. No. 158211. August 31, 2004, ERNESTO J. SAN AGUSTIN vs. PEOPLE
 Under Rule 112, Section 6 of the Revised Rules on Criminal Procedure, an inquest
investigation is proper only when the suspect is lawfully arrested without a warrant. Rule
113, Sec. 5 enumerates the instances where warrantless arrest may be effected. The person
arrested without a warrant shall be forthwith delivered to the nearest police station or jail
and
 shall be proceeded against in accordance with section 6 of Rule 112.
 Read: People vs. Fidel Abrenica, GR 136267, July 10, 2001 (personal knowledge of facts;
not information relayed by other persons as to the description of the killer).

 Under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest
officer is to determine if the arrest of the detained person was made “in accordance with the
provisions of paragraphs (a) and (b) of Section 5, Rule 113.” If the arrest was not properly
effected, the inquest officer should proceed under Section 9 of Circular No. 61 which
provides:

 Where Arrest Not Properly Effected.— Should the Inquest Officer find that the arrest was
not made in accordance with the Rules, he shall:
 a) recommend the release of the person arrested or detained;
 b) note down the disposition on the referral document;
 c) prepare a brief memorandum indicating the reasons for the action taken; and
 d) forward the same, together with the record of the case, to the City or Provincial
Prosecutor for appropriate action.

 Where the recommendation for the release of the detained person is approved by the City
or Provincial Prosecutor but the evidence on hand warrant the conduct of a regular PI,
the order of release shall be served on the officer having custody of said detainee and
shall direct the said officer to serve upon the detainee the subpoena or notice of
preliminary investigation, together with the copies of the charge sheet or complaint,
affidavit or sworn statements of the complainant and his witnesses and other supporting
evidence.

 Failure of the inquest prosecutor to comply with Section 6, Rule 112 in relation to Section
5, Rule 113 and DOJ Circular No. 61, renders inquest void( Beltran vs. Raul M Gonzalez,
et al, G.R. No. 175013, June 1, 2007 and companion case. Citing Larranaga v. Court of
Appeals, 346 Phil. 241 (1997); Go v. Court of Appeals, G.R. No. 101837, 11 February
1992, 206 SCRA 138).

INVALID INQUEST
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1. BRYAN TA-ALA Y CONSTANTINO VS. PEOPLE, G.R. No. 254800. June 20, 2022

EN BANC, G.R. No. 232413 [Formerly UDK 15419], July 25, 2017, IN THE MATTER OF
THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS WITH PETITION FOR
RELIEF

INTEGRATED BAR OF THE PHILIPPINES PANGASINAN LEGAL AID AND JAY-AR R.

SENIN VS. DEPARTMENT OF JUSTICE, PROVINCIAL PROSECUTOR'S OFFICE,
BUREAU OF JAIL MANAGEMENT AND PENOLOGY, AND PHILIPPINE NATIONAL
POLICE,- The petition considers such condition of several detention prisoners as an alarming
situation brought about by several Department of Justice (DOJ) issuances, namely:

1. DOJ Circular (D.C.) No. 12, series of 2012, which provided that the dismissal of all drug-
related cases involving violations for which the maximum penalty is either reclusion perpetua or
life imprisonment is subject to automatic review by the Justice Secretary whether such case has
been dismissed on inquest, preliminary investigation or reinvestigation. It also stated that [ t ]he
automatic review shall be summary in nature and shall, as far as practicable, be completed within
30 days from receipt of the case records, without prejudice to the right of the respondent to be
immediately released from detention pending automatic review, unless the respondent is detained
for other causes;

2. D.C. No. 22, series of 2013, entitled Guidelines on the Release of Respondents/ Accused
Pending Automatic Review of Dismissed Cases Involving Republic Act (R.A.) No. 9165; and

3. D.C. No. 50, series of 2012, entitled Additional Guidelines on the Application of Article 125
of the Revised Penal Code, as Amended (RPC).1

For the IBP, it is the height of injustice when innocent persons are left to suffer in jail for years
without a fixed term. Contending that it is their duty to defend the Constitution and protect the
people against unwarranted imprisonment and detention, the IBP is requesting the Court to act
on the amendment of the Rules on Preliminary Investigation, by way of a letter, which has been
forwarded to the Committee on Revision. Pending the desired amendment, however, the IBP
urges the Court to act on the urgent and imperative need to release from detention those who are
wrongfully imprisoned despite the absence of probable cause.

The IBP represents in this case its client, Jay-Ar Senin (Senin). Senin's rights were allegedly
violated because he has been detained for at least eight months without any finding of probable
cause or a case having been filed in court.

Senin's case started when a complaint against him and other unidentified persons was indorsed
on February 9, 2015, by Police Chief Inspector Crisante Pagaduan Sadino of the San Fabian
Police Station, Pangasinan to the Provincial Prosecutor's Office. He was arrested while engaged
in the sale of illegal drugs during a buy-bust operation. Thereafter, he executed a waiver of the
provisions of Article 125 of the RPC. After the preliminary investigation, the prosecutor resolved
to dismiss the case. Pursuant to the then prevailing DOJ Circular, the case was forwarded to the
DOJ for automatic review.

Department Circular No. 004

On January 4, 2017, the incumbent Secretary of Justice, Vitaliano N. Aguirre II, issued D.C. No.
004, series of 2017, the pertinent provisions of which read:

In the interest of the service and pursuant to the provisions of existing laws, the dismissal of all
cases whether on inquest, preliminary investigation, reinvestigation or on appeal, filed for
violation of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) and
Page 12 of 21/Crim Pro Part III/ JCBC

involving the maximum penalty of reclusion perpetua or life imprisonment, shall be subject to
automatic review by the Secretary of Justice.

The entire records of the case shall be elevated to the Secretary of Justice, within three (3) days
from issuance of the resolution dismissing the complaint or appeal, as applicable, and the parties
involved shall be notified accordingly.

Notwithstanding the automatic review, respondent shall be immediately released from detention
unless detained for other causes.

This Department Circular shall apply to all pending cases and to those which have been
dismissed prior to the issuance hereof, if such dismissal has not yet attained finality as of the the
effectivity of this Circular.

This Department Order revokes all prior issuances inconsistent herewith and shall take effect
immediately until revoked.

Department Circular No. 004

On January 4, 2017, the incumbent Secretary of Justice, Vitaliano N. Aguirre II, issued D.C. No.
004, series of 2017, the pertinent provisions of which read:

In the interest of the service and pursuant to the provisions of existing laws, the dismissal of all
cases whether on inquest, preliminary investigation, reinvestigation or on appeal, filed for
violation of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) and
involving the maximum penalty of reclusion perpetua or life imprisonment, shall be subject to
automatic review by the Secretary of Justice.

The entire records of the case shall be elevated to the Secretary of Justice, within three (3) days
from issuance of the resolution dismissing the complaint or appeal, as applicable, and the parties
involved shall be notified accordingly.

Notwithstanding the automatic review, respondent shall be immediately released from detention
unless detained for other causes.

This Department Circular shall apply to all pending cases and to those which have been
dismissed prior to the issuance hereof, if such dismissal has not yet attained finality as of the the
effectivity of this Circular.

This Department Order revokes all prior issuances inconsistent herewith and shall take effect
immediately until revoked.

The rule is that a person subject of a warrantless arrest must be delivered to the proper judicial
authorities8 within the periods provided in Article 125 of the RPC, otherwise, the public official
or employee could be held liable for the failure to deliver except if grounded on reasonable and
allowable delays. Article 125 of the RPC is intended to prevent any abuse resulting from
confining a person without informing him of his offense and without allowing him to post bail. It
punishes public officials or employees who shall detain any person for some legal ground but fail
to deliver such person to the proper judicial authorities within the periods prescribed by law. In
case the detention is without legal ground, the person arrested can charge the arresting officer
with arbitrary detention under Article 124 of the RPC. This is without prejudice to the possible
filing of an action for damages under Article 32 of the New Civil Code of the Philippines.

Article 125 of the RPC, however, can be waived if the detainee who was validly arrested without
a warrant opts for the conduct of preliminary investigation.1âwphi1 The question to be addressed
here, therefore, is whether such waiver gives the State the right to detain a person indefinitely.
Page 13 of 21/Crim Pro Part III/ JCBC

The Court answers in the negative.

The waiver of Article 125 of the RPC does not vest upon the DOJ, PPO, BJMP, and PNP the
unbridled right to indefinitely incarcerate an arrested person and subject him to the whims and
caprices of the reviewing prosecutor of the DOJ. The waiver of Article 125 must coincide with
the prescribed period for preliminary investigation as mandated by Section 7, Rule 112 of the
Rules of Court. Detention beyond this period violates the accused's constitutional right to liberty.

Stated differently, the waiver of the effects of Article 125 of the RPC is not a license to detain a
person ad infinitum. Waiver of a detainee's right to be delivered to proper judicial authorities as
prescribed by Article 125 of the RPC does not trump his constitutional right in cases where
probable cause was initially found wanting by reason of the dismissal of the complaint filed
before the prosecutor's office even if such dismissal is on appeal, reconsideration, reinvestigation
or on automatic review. Every person's basic right to liberty is not to be construed as waived by
mere operation of Section 7, Rule 112 of the Rules of Court. The fundamental law provides
limits and this must be all the more followed especially so that detention is proscribed absent
probable cause.

Accordingly, the Court rules that a detainee under such circumstances must be promptly released
to avoid violation of the constitutional right to liberty, despite a waiver of Article 125, if the 15-
day period (or the thirty 30- day period in cases of violation of R.A. No. 9165 9 ) for the conduct
of the preliminary investigation lapses. This rule also applies in cases where the investigating
prosecutor resolves to dismiss the case, even if such dismissal was appealed to the DOJ or made
the subject of a motion for reconsideration, reinvestigation or automatic review. The reason is
that such dismissal automatically results in a prima facie finding of lack of probable cause to file
an information in court and to detain a person.

WHEREFORE, it is hereby declared, and ruled, that all detainees whose pending cases have
gone beyond the mandated periods for the conduct of preliminary investigation, or whose cases
have already been dismissed on inquest or preliminary investigation, despite pending appeal,
reconsideration, reinvestigation or automatic review by the Secretary of Justice, are entitled to be
released pursuant to their constitutional right to liberty and their constitutional right against
unreasonable seizures, unless detained for some other lawful cause.

DIRECT FILING AND PRELIMINARY INVESTIGATION

Relevant laws: R.A. 5180, as amended by PD 77 & PD 911; R.A. 10071.

Cases not requiring a preliminary investigation

a)Rule 112, Sec. 1, Offenses where the penalty prescribed by law is below four (4) years, two (2)
months and one (1) day without regard to the fine (421 rule);
b) Cases governed by the Rule on Summary Procedure (Rule on Expedited Procedure);
c) Inquest cases-Rule 112, Sec. 6. When accused lawfully arrested without warrant, involving
an offense which requires a PI, provided an inquest has been conducted. In the absence or
unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit of the offended party or
arresting officer or person.

Procedure of Direct Filing

1. Rule 112, Secs. 1(par. 2), 3, 4, 6, 8 & 9
2. RJCL, Sec. 13

1. Preliminary Investigation; nature of right

Read:
Page 14 of 21/Crim Pro Part III/ JCBC

1. DOJ-NPS Manual, Part III

2. Bayatan v. COMELEC, 396 SCRA 703
3. PCCG v. Desierto, 397 SCRA 171

Section 1 of Rule 112 of the Rules of Criminal Procedure provides:

 Preliminary investigation is an inquiry or proceeding to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof and should be held for trial.

 G.R. Nos. 138859-60. February 22, 2001, ALVAREZ ARO YUSOP vs. The Honorable
SANDIGANBAYAN (1ST DIV.) -to “protect the accused from the inconvenience, expense
and burden of defending himself in a formal trial unless the reasonable probability of his
guilt shall have been first ascertained in a fairly summary proceeding by a competent
officer.”

ALICIA F. RICAFORTE vs. LEON L. JURADO, G.R. NO. 154438, SEPT. 5, 2007
 Preliminary investigation is inquisitorial in nature; it does not require a full and exhaustive
presentation of the parties evidence; validity of and merits of a party’s defense and
accusation, as well as admissibility of testimonies and evidence, are better ventilated during
trial proper; Its purpose is to enable the fiscal to discover who should be charged and to be
able to prepare the information.

Go v. Court of Appeals( 206 SCRA 138, 153, 2-12-92), held that “the right to PI is waived when
the accused fails to invoke it before or at the time of entering a plea at arraignment.” Conversely,
if the accused invokes it before arraignment, as the petitioner did in this case, the right is not
waived.

 The filing of a bail bond is not a waiver of petitioner’s right to PI. Under Section 26, Rule
114 of the Revised Rules of Criminal Procedure, “[a]n application for or admission to bail
shall not bar the accused from challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that he raises them before
entering his plea. x x x.”

 The right to PI is substantive, not merely formal or technical. To deny it to would deprive
one of the full measure of his right to due process.

ALVAREZ ARO YUSOP vs. The Honorable SANDIGANBAYAN (supra),

 Lack of PI is not a ground for a motion to quash. The“absence of a preliminary

investigation does not go to the jurisdiction of the court but merely to the regularity of the
proceedings.”

 In People v. Gomez: it was ruled that “If there were no PI and the defendants, before
entering their plea, invite the attention of the court to their absence, the court, instead of
dismissing the information, should conduct such investigation, order the fiscal to conduct it
or remand the case to the inferior court so that the preliminary investigation may be
conducted.”

 A PI is not a trial. The function of the government prosecutor during the preliminary
investigation is merely to determine the existence of probable cause (G.R. No. 108251.
January 31, 1996, CEFERINO S. PAREDES, ET AL., vs. THE HONORABLE
SANDIGANBAYAN, ET AL)

 Respondent cannot demand from investigation officer, during a preliminary investigation,

that he be furnished a copy of the counter-affidavit of his co-respondent because there is no
Page 15 of 21/Crim Pro Part III/ JCBC

law or rule which requires the prosecutor (Ombudsman) to furnish such copy to him.
Hence, respondent’s right to due process was not violated (Senator Jinggoy Estrada vs.
Office of the Ombudsman, G.R. No. 212140-41, January 21, 2015).

 PI for cases to be filed with the Sandiganbayan

1. Conducted by the Ombudsman Graft Investigator / OMB Special Prosecutor

2. RA 6770
3. Administrative Order No. 07, Rule II, Secs. 1-7.

2. When required.
1. Rule 112, Sec. 1
2. DOJ-NPS Manual, Part III, Secs. 1, 2, 3 & 7
3. Hashim v. Boncan, 71 Phil. 216
4. Tandoc v. Resultan, 175 SCRA 37
5. Doromal v. Sandiganbayan, 190 SCRA 226
6. Webb v. De Leon, 247 SCRA 652

1. Purposes of preliminary investigation

NACE P. BUAN vs. FRANCISCO T. MATUGAS, G. R. NO. 161179, AUGUST 7, 2007.

 to determine whether there is sufficient ground to engender a well-founded belief as to the
fact of the commission of a crime and the respondent's probable guilt thereof.

 A finding of probable cause need only rest on evidence showing that more likely than not a
crime has been committed and was committed by the suspect. While probable cause
demands more than bare suspicion, it requires less than evidence which would justify
conviction. A finding of probable cause merely binds over the suspect to stand trial. It is not
a pronouncement of guilt.

4. Who may conduct PI

1. Rule 112, Sec. 2
2. DOJ-NPS Manual, Part III, Sec. 6
3. Velasco v. Casaclang, 294 SCRA 396
4. Balgos v. Sandiganbayan, 176 SCRA 287

Who may conduct determination of existence of executive probable cause?

 The investigating prosecutor or one who succeeds him/her.

 PI may be initiated and concluded by different investigating prosecutors.

Illustrative case-

G.R. No. 108251. January 31, 1996, CEFERINO S. PAREDES, JR. et al. vs.
SANDIGANBAYAN, ET AL-. - What happened here is similar to the trial of a case by one judge
who, without being able to finish the hearing, ceases from office for one reason or another and by
necessity the decision is rendered by another judge who has taken over the conduct of the case.
Such an arrangement has never been thought to raise any question of due process. For what is
important is that the judge who decides does so on the basis of the evidence on record. It does
not matter that he did not conduct the hearing of that case from the beginning.

5. Scope
1. Paderanga v. Drilon, 196 SCRA 86
2. Brocka v. Enrile, GR 69863-65, December 10, 1990

PRELIMINARY INVESTIGATION-
Page 16 of 21/Crim Pro Part III/ JCBC

Read:
Part III, DOJ- NPS 2017 Manual-Concept (Sec.1); purpose (Sec.2); nature of(Sec.3);

1. Procedure;
a)Filing/referral of complaint Part I (Secs. 2 and 3, NPS Manual 2017); What must be
alleged (Id., Secs. 6 and 7); Supporting affidavits (Sec. 9); Certification to file
action(Secs. 11, 12);
b)Initial action (Secs. 13 and 14-grounds for dismissal-venue, prescription, unauthorized
complaint, does not charged an offense, unsigned or unsubscribed or improperly
subscribed complainant);
c)Service of subpoena and filing of cou nter-affidavit.
d)Clarificatory hearing (optional)
e) Resolution.

Clarificatory Hearing-1st Div., G.R. No. 171420, October 05, 2016, AURORA A. SALES
VS. BENJAMIN D. ADAPON, OFELIA C. ADAPON AND TEOFILO D. ADAPON).

Procedure where the respondent is a child(15- but below18 years old, liable if acted with
discernment; always civilly liable; Sec. 6 RA 9344; Id. sec. 20-Intervention Rule; With
discernment, diversion; If unsuccessful, CICL undergoes PI; If convicted, sentence is
suspended; suspension applies even if the CICL is already over 18 at the time of
promulgation of judgment.(Read- R.A. 9344; SC Rule on CICL; Jerwin Dorado v.
People, GR 216671, October 3, 2016).

INSTANCES WHERE A NEW PI IS REQUIRED

1. In case of amendment of the information if the new charge is unrelated to the original
charge;
2. There is change in the nature of the crime;
3. The information is void for lack of authority of the officer to file the same(Sec. 4, Part
III, DOJ-NPS Manual).

Read:
1. Rule 112, Secs. 3, 4 & 8
2. RJCL, Sec. 13
3. Rodil v. Garcia, 104 SCRA 362
4. Allado v. Diokno, 232 SCRA 192

Rule 112, SEC. 4. Resolution of investigating prosecutor and its review. —

 If the IP finds probable cause, he prepares a resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence.

 If IP finds no probable cause, he shall recommend the dismissal of the complaint.

Resolution of investigation prosecutor

 Within five (5) days from his resolution, IP forwards the record of the case to the provincial
or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They
shall act on the resolution within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.

 No complaint or information may be filed or dismissed by an IP without the prior written

Page 17 of 21/Crim Pro Part III/ JCBC

authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.

Rule in case of conflict of findings-

 Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the
latter may, by himself, file the information against the respondent, or direct another
assistant prosecutor or state prosecutor to do so without conducting another preliminary
investigation(Rule 112, Sec. 4).

REVIEW OF RESOLUTION
A. AT THE PROSECUTOR’S LEVEL
1. Motion For Reconsideration, within 15 days from receipt of the resolution. Only
one motion for reconsideration is allowed (DOJ Circular No. 70, NPS 2000 Rules on
Appeal).
2. Motion to re-open preliminary investigation(NPS Manual, Part III, Sec.31).

AT THE RSP/DOJ LEVEL

1. Appeal to the SOJ
1. DOJ Circulars No. 70, 70-A and 27.
2. DOJ NPS Manual, Part IV
3. Dimatulac v. Villon, 297 SCRA 679
2. Appeal to the PG (DOJ Circular No. 27)
3. Appeal to the RSP (DOJ Circular No. 27)

Rule 112, Sec. 4.- Mode of review

 Petition for Review (DOJ Circular No. 70, July 3, 2000) provides:
 SECTION 2. Where to appeal. An appeal may be brought to the Secretary of Justice
within the period and in the manner herein provided.
 SECTION 3. Period to appeal. The appeal shall be taken within fifteen (15) days from
receipt of the resolution, or of the denial of the motion for
reconsideration/reinvestigation if one has been filed within fifteen (15) days from
receipt of the assailed resolution. Only one motion for reconsideration shall be
allowed.

 SECTION 4. How appeal taken. An aggrieved party may appeal by filing a verified
petition for review with the Office of the Secretary, Department of Justice, and by
furnishing copies thereof to the adverse party and the Prosecution Office issuing the
appealed resolution.

 SECTION 5. Contents of petition. - The petition shall contain or state: (a) the names
and addresses of the parties; (b) the Investigation Slip number (I.S. No.) and criminal
case number, if any, and title of the case, including the offense charged in the
complaint; (c) the venue of the preliminary investigation; (d) the specific material
dates showing that it was filed on time; (e) a clear and concise statement of the facts,
the assignment of errors, and the reasons or arguments relied upon for the allowance
of the appeal; and (f) proof of service of a copy of the petition to the adverse party
and the Prosecution Office concerned. The petition shall be accompanied by legible
duplicate original or certified true copy of the resolution appealed from together with
legible true copies of the complaint, affidavits/sworn statements and other evidence
submitted by the parties during the preliminary investigation/ reinvestigation. If an
information has been filed in court pursuant to the appealed resolution, a copy of the
motion to defer proceedings filed in court must also accompany the petition. The
Page 18 of 21/Crim Pro Part III/ JCBC

investigating/reviewing/approving prosecutor shall not be impleaded as party

respondent in the petition. The party taking the appeal shall be referred to in the
petition as either "Complainant-Appellant" or "Respondent- Appellant".

 SECTION 6. Effect of failure to comply with requirements. The failure of the
petitioner to comply with any of the foregoing requirements shall constitute sufficient
ground for the dismissal of the petition.

 SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition
outright if he finds the same to be patently without merit or manifestly intended for
delay, or when the issues raised therein are too unsubstantial to require consideration.
If an information has been filed in court pursuant to the appealed resolution, the
petition shall not be given due course if the accused had already been arraigned. Any
arraignment made after the filing of the petition shall not bar the Secretary of Justice
from exercising his power of review.

 SECTION 8. Comment. Within a non-extendible period of fifteen (15) days from
receipt of a copy of the petition, the adverse party may file a verified comment,
indicating therein the date of such receipt and submitting proof of service of his
comment to the petitioner and the Prosecution Office concerned. Except when
directed by the Secretary of Justice, the , the investigating/reviewing/approving
prosecutor need not submit any comment. If no comment is filed within the
prescribed period, the appeal shall be resolved on the basis of the petition. SECTION
9. Effect of the appeal. Unless the Secretary of Justice directs otherwise, the appeal
shall not hold the filing of the corresponding information in court on the basis of the
finding of probable cause in the appealed resolution. The appellant and the trial
prosecutor shall see to it that, pending resolution of the appeal, the proceedings in
court are held in abeyance. SECTION 10. Withdrawal of appeal. Notwithstanding the
perfection of the appeal, the petitioner may withdraw the same at any time before it is
finally resolved, in which case the appealed resolution shall stand as though no appeal
has been taken.

 SECTION 11. Reinvestigation. If the Secretary of Justice finds it necessary to
reinvestigate the case, the reinvestigation shall be held by the investigating
prosecutor, unless, for compelling reasons, another prosecutor is designated to
conduct the same.

 SECTION 12. Disposition of the appeal. The Secretary may reverse, affirm or modify
the appealed resolution. He may, motu proprio or upon motion, dismiss the petition
for review on any of the following grounds: • That the petition was filed beyond the
period prescribed in Section 3 hereof; • That the procedure or any of the requirements
herein provided has not been complied with; • That there is no showing of any
reversible error; • That the appealed resolution is interlocutory in nature, except when
it suspends the proceedings based on the alleged existence of a prejudicial question; •
That the accused had already been arraigned when the appeal was taken; • That the
offense has already prescribed; and • That other legal or factual grounds exist to
warrant a dismissal.

 SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for
reconsideration within a non-extendible period of ten (10) days from receipt of the
resolution on appeal, furnishing the adverse party and the Prosecution Office
concerned with copies thereof and submitting proof of such service. No second or
further motion for reconsideration shall be entertained.

DEPARTMENT CIRCULAR NO. 70-A SUBJECT: DELEGATION OF AUTHORITY TO

REGIONAL STATE PROSECUTORS TO RESOLVE APPEALS IN CERTAIN CASES In
Page 19 of 21/Crim Pro Part III/ JCBC

order to expedite the disposition of appealed cases governed by Department Circular No.
70 dated July 3, 2000 ("2000 NPS RULE ON APPEAL"), all petitions for review of
resolutions of Provincial/City Prosecutors in cases cognizable by the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, except in the National
Capital Region, shall be filed with the Regional State Prosecutor concerned who shall
resolve such petitions with finality in accordance with the pertinent rules prescribed in the
said Department Circular. The foregoing delegation of authority notwithstanding, the
Secretary of Justice may, pursuant to his power of supervision and control over the entire
National Prosecution Service and in the interest of justice, review the resolutions of the
Regional State Prosecutors in appealed cases.

On 13 July 2022, the Department of Justice (DOJ) issued Department Circular No. 27 (“Circular
No. 27”), which modifies the appeal process for rulings of prosecutors in the National
Prosecution Service (NPS) and creates a Prosecution Integrity Board to monitor, audit, and
assess prosecutor conduct in preliminary investigations and appeals. The department circular
takes effect on 31 July 2022.
In the interest of speedy, efficient, and effective administration of justice, pursuant
to the provisions of existing laws, this Ruleo n Appeal from rulings of prosecutors in
the National Prosecution Service(NPS) is hereby adopted:

Section 1. The Office of the Secretary of Justice shall review appeals from
resolutions of-
A. the Prosecutor General in cases subject to its preliminary investigation as referred to it
by various government agencies; and
B. the Provincial/City Prosecutors in cases cognizable by the Regional Trial Court.

Section 2. Appeals in cases cognizable by the First Level Courts-Who may review:
1. The Prosecutor General, as the Regional State Prosecutor in the National Capital
Region, shall review appeals from Resolutions of-

A. the Provincial/City Prosecutors in cases cognizable by the Metropolitan Trial Court,

Municipal Circuit Trial Court, Municipal Trial Court, and Municipal Trial Court in Cities;

2. The Regional State Prosecutors shall review appeals from Resolutions of shall
review appeals from Resolutions of-
A. the Provincial/City Prosecutors in cases cognizable by the Metropolitan Trial Court,
Municipal Circuit Trial Court, Municipal Trial Court, and Municipal Trial Court in Cities
in their respective regions.

Note : Cases decided on appeal by the Prosecutor General and by the Regional State
Prosecutors under this provisions hall be considered final and no longer be appealable to
the Office of the Secretary of Justice.
XXX
Section 5. This Circular modifies Department Circular No.70 dated 3July 2000 and
Department CircularNo.70-A, dated 10 July 2000. All provisions of these two circulars and
Department Circular No. 18 dated 8 March 2017 not inconsistent with this Circular shall
remain in force and effect.

Automatic Review/Residual Power of the SOJ.

Read:
DOJ Circular No. 27 -Section 3. Notwithstanding the above, the Secretary of Justice
reserves the right to evaluate, in the interest of justice, to afford fair play and prevent the
miscarriage of justice, muto proprio or upon written and signed complaint, any resolution of the
Prosecutor General, Regional State Prosecutors and Provincial/City Prosecutors. This residual
power of review shall conform with the constitutional requirements of due process and will be
covered by a relevant department circular to be issued by the Office of the Secretary of Justice.
Page 20 of 21/Crim Pro Part III/ JCBC

xxx

 Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor
or chief state prosecutor, and direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to
dismiss or move for dismissal of the complaint or information with notice to the parties.

 The same rule shall apply in preliminary investigations conducted by the officers of the
Office of the Ombudsman.

 LEONARDO V. FLORES VS. HON. RAUL GONZALEZ, ET AL., G.R. NO. 188197,
AUGUST 3, 2010- DOJ Secretary ordered the filing of information for other deceit. On
motion for reconsideration, the secretary subsequently ordered the withdrawal of the
information. MTC denied the motion. Meanwhile, the CA upheld the secretary in ordering
the withdrawal of the information. Held: CA ruling is already moot and academic because
the MTC has already denied the motion based on its power in Crespo vs. Mugol.

 RUFINA L. CALIWAN vs. MARIO OCAMPO, ET AL., G.R. NO. 183270, FEB 13, 2009-
Denial of MTWI is an interlocutory order and certiorari cannot be availed of if the case is
covered by the Rule on Summary Procedure.

DOJ vs. TEODULO NANO ALON, G.R. No. 189596, April 23, 2014-

 SOJ acted on a mere letter and treated it as an appeal and accordingly modified the
prosecutor’s resolution by downgrading the charge of rape to acts of lasciviousness without
hearing the side of the victim. Held: There was violation of the right to a preliminary
investigation and due process. Charge of rape ordered reinstated.
APPEAL FROM DOJ TO THE OFFICE OF THE PRESIDENT
1. OP Memorandum Circular No. 58
2. JUDGE ADORACION G. ANGELES vs. HON. MANUEL B. GAITE, et. al., G.R. No.
165276, November 25, 2009

Memorandum Circular No. 58, promulgated by the Office of the President on

June 30, 1993 reads:

In the interest of the speedy administration of justice, the guidelines enunciated in Memorandum
Circular No. 1266 (4 November 1983) on the review by the Office of the President of
resolutions/orders/decisions issued by the Secretary of Justice concerning preliminary
investigations of criminal cases are reiterated and clarified.

No appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice

on preliminary investigations of criminal cases shall be entertained by the Office of the
President, except those involving offenses punishable by reclusion perpetua to death x x x.

Henceforth, if an appeal or petition for review does not clearly fall within the jurisdiction of the
Office of the President, as set forth in the immediately preceding paragraph, it shall be dismissed
outright x x x.

MOTION FOR REINVESTIGATION-Remedy of accused if there was no preliminary

investigation

 File Motion for reinvestigation with the court where the case was raffled (Rule 112, Sec.
6).After the filing of the complaint or information in court without a PI, the accused may,
within five (5) days from the time he learns of its filing, ask for a PI (7a; sec. 2, R.A. No.
7438).
Page 21 of 21/Crim Pro Part III/ JCBC

G.R. No. 163267, May 05, 2010, TEOFILO EVANGELISTA VS. THE PEOPLE, HELD: Even
if court granted leave for the reinvestigation, it can still reject the result-
 “There is nothing procedurally improper on the part of the trial court in disregarding the
result of the preliminary investigation it itself ordered. Judicial action on the motion rests in
the sound exercise of judicial discretion. In denying the motion, the trial court just followed
the jurisprudential rule laid down in Crespo v. Judge Mogu that once a complaint or
information is filed in court, any disposition of the case as to its dismissal or the conviction
or acquittal of the accused rests on the sound discretion of the court. The court is not
dutifully bound by such finding of the investigating prosecutor, citing Solar Team
Entertainment, Inc v. Judge How (393 Phil. 172, 181 (2000).

Read:
1. Dungog v. CA, 159 SCRA 145
2. Velasquez v. Undersecretary of Justice, 182 SCRA 388
3. People v. Beriales, 70 SCRA 361

DOJ IS NOT A QUASI JUDICIAL AGENCY

Read:
1. SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN
A. MARIANO, ASSISTANT STATE PROSECUTOR VIMAR M. BARCELLANO and
ASSISTANT STATE PROSECUTOR GERARD E. GAERLAN vs.
MARIO JOEL T. REYES, G.R. No. 209330, Jan 11, 2016.

2.Esmael Orquinaza vs, People, et al., G.R. No. 165596, Nov. 17, 2005, Absence of P.I. does not
invalidate an information. Hence, it is not a ground for a motion to quash, and will not divest the
court of its jurisdiction;
3. Paul Roberts vs. C.A., 254 SCRA 307;
4. Rosalinda Punzalan, et al. vs. Dencio Dela Pena and Robert Cagara, G.R. No. 158543, July 21,
2004, Power of prosecutor to dismiss a complaint;
5.Samson, et al. vs. Guingona, G.R. No. 123504, Dec. 14, 2000- Court’s non-interference in the
conduct of P.I. or reinvestigation. His findings not reviewable unless there is grave abuse.;
6. Manuel Baviera vs. Rolando B. Zoleta, GR No. 169098, October 12, 2008 (Remedy against
OMB Resolution finding probable cause is Rule 65 to SC).
7.Victor Jose Tan Uy vs. OMB and People, et al., GR No. 156399-400, June 27, 2008, En Banc
(Brion., J)- Full right to be informed of the charge and to participate in the preliminary
investigation;
8.Atty. Ernesto Tabujara III and Christine Dayrit vs. People and Daisy Afable, G.R. No. 175162,
3rd. Div., Finding of probable cause based on an affidavit not subscribed before the investigating
judge (Prosecutor) is null and void. There was no personal examination of the affiant. Warrant of
arrest issued is void. Case dismissed.
end