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From the filing of the complaint, the investigating
officer has 10 days within which to decide on which
of the following options to take:
1. To dismiss the complaint if he finds no ground
to conduct the investigation; or
2. To issue a subpoena in case he finds the need to
continue with the investigation, in which case
the subpoena shall be accompanied with the
complaint and its supporting affidavits and
documents. (Sec. 3(b), Rule 112, ROC, as
amended)
NOTE: Within 10 days from receipt of subpoena, the
respondent is required to submit his counter-
affidavit, the affidavits of his witnesses and other
supporting documents relied upon for his defense.
(Sec. 3(c), Rule 112, ROC, as amended)
Despite the subpoena, if the respondent does not
submit his counter-affidavit within the 10-day
period granted to him, the investigating officer shall
resolve the complaint based on the evidence
presented by the complainant. The same rule shall
apply in case the respondent cannot be subpoenaed.
(Sec. 3(d), Rule 112, ROC, as amended)
Filing of Motion to Dismiss during Preliminary
Investigation
GR: In preliminary investigation, a motion to
dismiss is not an accepted pleading for it merely
alleges the innocence of the respondent without
rebutting or repudiating the evidence of the
complainant.
XPN: When it contains countervailing evidence or
defenses and evidence which rebuts or repudiates
the charges, in which case it will be treated as a
counter-affidavit.
NOTE: If one files a motion to dismiss and he only
asserts that the case should be dismissed, then the
motion to dismiss is a mere scrap of paper. If the
respondent does not, later on, submit a counter-
affidavit, it will constitute a waiver on his part to file
a counter-affidavit.
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Clarificatory Hearing
Clarificatory hearing is not mandatory. A hearing
may be set by the investigating officer only when
there are facts and issues to be clarified either from
a party or a witness, which shall be conducted
within 10 days from the submission of the counter-
affidavit, other affidavits and documents filed by the
respondent.
NOTE: A waiver, whether express or implied, must
be made in clear and unequivocal manner. Mere
failure of the accused and his counsel to appear
before the prosecutor for the clarificatory hearing
or when summoned when such right was vigorously
invoked at the start of the proceeding, is not a
waiver to the right to preliminary investigation.
(Larranga v. CA, G.R. No. 130644, 13 Mar. 1998)
NOTE: The parties do not have the right to examine
or cross-examine each other or the witnesses. If
they have questions to ask, they shall submit the
questions to the investigating officer who shall ask
the questions. (Sec. 3(e), Rule 112, ROC, as amended)
Records Supporting the Information or
Complaint
An information or complaint filed in court shall be
supported by the following:
1. Affidavits and counter-affidavits of the parties
and their witnesses; and
2. Other supporting evidence and the resolution
on the case. (Sec. 7(a), Rule 112, ROC, as
amended)
Record of the Preliminary Investigation
GR: Record of the preliminary investigation shall
not form part of the case.
XPNs:
1. When the court considers it necessary in the
resolution of the case or any incident therein; or
2. When it is introduced as evidence in the case by
the requesting party. (Sec. 7(b), Rule 112)
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Resolution of the Investigating Prosecutor
Within 10 days from the termination of the
investigation, the investigating prosecutor shall
determine whether or not there is sufficient ground
to hold the respondent for trial. (Sec. 3(f), Rule 112,
ROC, as amended)
Afterwards, if the investigating officer finds cause to
hold the respondent for trial, he shall prepare the
resolution and information. Otherwise, he shall
recommend the dismissal of the complaint. (Sec. 4,
Rule 112, ROC, as amended)
The information shall contain a certification by the
investigating officer under oath in which he shall
certify the following:
1. That he, or as shown by the record, an
authorized officer, has personally examined the
complainant and his witnesses;
2. That there is reasonable ground to believe that
a crime has been committed and that the
accused is probably guilty thereof;
3. That the accused was informed of the complaint
and of the evidence submitted against him; and
4. That he was given an opportunity to submit
controverting evidence. (Sec. 4, Rule 112, ROC,
as amended)
Within 5 days from the issuance of his resolution,
the investigating prosecutor shall forward 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 10 days from their receipt thereof
and shall immediately inform the parties of such
action. (Sec. 4, Rule 112, ROC, as amended)
NOTE: The resolution of the investigating
prosecutor is merely recommendatory.
No complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or chief state
487
prosecutor or the Ombudsman or his deputy. (Sec. 4,
Rule 112, ROC, as amended)
Q: Sometime in 2006, based on an alleged
finding of the Commission on Audit of
overpricing and irregularities in the
procurement process, the Ombudsman
launched Task Force Abono (TFA) to specifically
conduct a fact-finding investigation into the
purported “fertilizer fund scam.” A Complaint
dated December 27, 2012, was thereafter filed
by the TFA on June 21, 2013 against Perez,
Catamco and the other public officials involved
in the transaction. After more than two (2)
years, or on July 17, 2017, the Ombudsman
issued its Resolution finding probable cause to
indict Perez, Catamco and their co-respondents,
including Mayor Rama, for one (1) count of
violation of Sec. 3(e) of R.A. No. 3019 and two (2)
counts of Malversation under Art. 217 of the RPC.
The corresponding information were filed
before the Sandiganbayan. Before arraignment,
Catamco and Perez each moved for the dismissal
of the case against them claiming that the
Ombudsman’s inordinate delay of more than
twelve (12) years, from the conduct of its
investigation in 2006 until the filing of the
Information in court, violated their
constitutional right to speedy disposition of
cases. Is the contention of Catamco and Perez
correct?
A: YES. In Cagang v. Sandiganbayan (G.R. Nos.
206438 and 206458, 31 July 2018), the Court laid
down the guidelines in resolving issues concerning
the right to speedy disposition of cases. The
Ombudsman failed to observe the period prescribed
under its rules.
From the date the last counter-affidavit was filed,
the case remained stagnant for two (2) years and
two (2) months until the investigating officer issued
a Resolution on July 17, 2017, finding probable
cause against petitioners and their co-respondents.
Moreover, to justify the delay in the preliminary
investigation, the Ombudsman merely claimed that
it needed time to meticulously evaluate and review
numerous records and relied heavily on this Court’s
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recognition in a previous case of the steady stream
of cases handled by the Ombudsman. However,
while this Court has indeed recognized the reality
and inevitability of institutional delay, it does not, by
itself, justify the Ombudsman’s failure to comply
with the periods provided under the rules. No less
than the Constitution mandates the Ombudsman to
act promptly on complaints filed before it, which
duty was further reinforced by R.A. No. 6670 or The
Ombudsman Act of 1989, to promote efficient
government service to the people. Thus, absent any
proof of how the steady stream of cases or heavy
workload affected the resolution of a case, the
Ombudsman cannot repeatedly hide behind this
generic excuse.
Verily, by simply following the guidelines in
determining the issue of inordinate delay as
provided in Cagang, the Court is left with no choice
but to consider the prosecution’s failure to prove
sufficient justification for the delay. And, in view of
the petitioners’ timely invocation of their right to
speedy disposition of cases, it is quite evident that
the Sandiganbaayan committed grave abuse of
discretion in denying the motions to dismiss the
case. (Catamco v. Sandiganbayan Sixth Division, et
al., G.R. Nos. 243560-62 & 243261-63, 28 July 2020)
NOTE: If the delay is beyond the time periods
provided in the rules to decide the case, the burden
of proof shifts to the State. (Javier v. Sandiganbayan,
G.R. No. 237997, 10 June 2020, citing Cagang v.
Sandiganbayan, supra)
Effect when there is no Prior Written Authority
or Approval of the Provincial or City Prosecutor
or the Ombudsman or his deputy
Complaints or information filed before the courts
without the prior written authority or approval of
the foregoing authorized officers renders the same
defective and, therefore, subject to quashal
pursuant to Sec. 3(d), Rule 117 of the Revised Rules
on Criminal Procedure. (Quisay v. People, G.R. No.
216920, 13 Jan. 2016)
The filing of an Information by an officer without the
requisite authority to file the same constitutes a
jurisdictional infirmity which cannot be cured by
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2023 GOLDEN NOTES
silence, waiver, acquiescence, or even by express
consent. Hence, such ground may be raised at any
stage of the proceedings. (Ibid.)
Q: The Office of the City Prosecutor issued a
Resolution finding probable cause against the
petitioner for the violation of R.A. No. 7610.
Later on, an Information was filed before the
RTC charging the petitioner of the said crime.
The Resolution was penned by an Assistant City
Prosecutor and approved by a Senior Assistant
City Prosecutor. The Information was penned by
ACP De La Cruz but without approval from any
higher authority. However, there was a
Certification claiming that ACP De La Cruz has
prior written authority or approval from the
City Prosecutor in filing the said Information.
The petitioner moved for the quashal of the
Information against her on the ground of lack of
authority of the person who filed the same
before the RTC. The RTC denied the motion to
quash for lack of merit. Is the RTC correct in
denying the motion to quash for lack of merit?
A: NO. Sec. 4, Rule 112 of the Revised Rules on
Criminal Procedure states that the filing of a
complaint or information requires a prior written
authority or approval of the named officers therein
before a complaint or information may be filed
before the courts. As a general rule, complaints or
informations filed before the courts without the
prior written authority or approval of the foregoing
authorized officers render the same defective and,
therefore, subject to quashal pursuant to Sec. 3(d),
Rule 117 of the same Rules. Thus, the Resolution
finding probable cause to indict the petitioner of the
crime charged, was validly made as it bore the
approval of one of the designated review
prosecutors for OCP-Makati, SACP Hirang, as
evidenced by his signature therein. However, the
same could not be said of the Information filed
before the RTC, as there was no showing that it was
approved by either the City Prosecutor of Makati or
any of the OCP-Makati’s division chiefs or review
prosecutors. (Quisay v. People, G.R. No. 216920, 13
Jan. 2016)
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Different Findings between the Investigating
Prosecutor and Superior Prosecutor
When the investigating prosecutor recommends the
dismissal of the complaint, but his findings are
reversed by the “Superior” Prosecutor or
Ombudsman on the ground that probable cause
exists, the “superior” prosecutor or Ombudsman
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. (Sec. 4, Rule 112,
ROC, as amended)
REVIEW
Remedy of the Aggrieved Party from the
Resolution of the Investigating Prosecutor as
approved by his Superior
The aggrieved party is not precluded from filing a
motion for reconsideration from receipt of the
assailed resolution. Only one motion for
reconsideration shall be allowed. (Sec. 3, 2000 NPS
Rule on Appeal, DOJ Department Circular No. 70)
An aggrieved party may appeal by filing a verified
petition for review with the Secretary of Justice and
by furnishing copies thereof to the adverse party
and prosecution office issuing the appealed
resolution. The appeal shall be taken within 15 days
from receipt of the resolution or of the denial of the
motion for reconsideration or reinvestigation if one
has been filed within 15 days from receipt of the
assailed resolution. Only one motion for
reconsideration shall be allowed. Unless the
Secretary directs otherwise, the appeal shall not
stay the filing of the corresponding information in
court on the basis of the finding of probable cause in
the assailed decision.
The decision of the prosecutor may be reviewed by
the courts when he acts with grave abuse of
discretion amounting to lack of jurisdiction.
(Herrera, 2007)
Q: May a prosecutor be compelled by mandamus
to file a complaint regarding a complaint filed
489
which he previously dismissed for lack of merit
after preliminary investigation? (1999 BAR)
A: NO. This is because the determination of
probable cause is within the discretion of the
prosecutor. The remedy is an appeal to the
Secretary of Justice.
Reversal or Modification of the Resolution of the
Provincial or City Prosecutor
The Secretary of Justice may motu proprio reverse
or modify the resolution of provincial or city
prosecutor or chief state prosecutor. The Secretary
of Justice may review resolutions of his
subordinates in criminal cases despite the
information being filed in court. (Community Rural
Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909, 06
Apr. 2005)
The Secretary of Justice exercises the power of
direct control and supervision over prosecutors,
and may thus affirm, nullify, reverse, or modify their
rulings. In reviewing resolutions of state
prosecutors, the Secretary of Justice is not
precluded from considering errors, although
unassigned, for the purpose of determining whether
there is probable cause for filing cases in court.
NOTE: If the Secretary of Justice reverses or
modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall 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. (Sec. 4, Rule 112, ROC, as
amended)
Once a complaint or information is filed in Court any
disposition of the case as its dismissal or the
conviction or acquittal of the accused rests in the
sound discretion of the 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 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 jurisdiction and
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competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court which
has the option to grant or deny the same. It does not
matter if this is done before or after the arraignment
of the accused or that the motion was filed after a
reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the
investigation. (Crespo v. Mogul, G.R. No. L-53373, 30
June 1987)
Remedy of an Aggrieved Party against a
Resolution of the Secretary of Justice
The party aggrieved by the Secretary of Justice may
file a Motion for Reconsideration within a non-
extendible period of 10 days from receipt of the
resolution on appeal.
The resolution of the Secretary of Justice is
appealable administratively before the Office of the
President, and the decision of the latter may be
appealed before the CA pursuant to Rule 43. (De
Ocampo v. Secretary of Justice, G.R. No. 147932, 25
Jan. 2006)
However, if there is grave abuse of discretion
resulting to lack or excess of jurisdiction, a petition
for certiorari under Rule 65 may be filed. (Ching v.
Secretary of Justice, G.R. No. 164317, 06 Feb. 2006)
NOTE: Memorandum Circular No. 58 dated 30 Jan.
1993 provides that appeals from or petitions 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 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 ruled upon;
3. The prescription of the offense is not due to
lapse within six (6) months from notice of the
questioned resolution/order/decision; and
4. The appeal or petition for review is filed within
30 days from notice.
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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
and no order shall be issued requiring the payment
of the appeal fee, the submission of appeal
brief/memorandum or the elevation of the records
to the Office of the President from the Department
of Justice.
Remedy of an Aggrieved Party against the
Resolution of the Ombudsman
The resolution of the Ombudsman in administrative
cases may be subject of petition for review via Rule
43 before the CA (Sec. 7, Rule III of the Rules of
Procedure of the Office of the Ombudsman) or a
special civil action for certiorari via Rule 65 before
the SC in criminal cases. (Mendoza-Arce v.
Ombudsman, G.R. No. 149148, 05 Apr. 2002)
NOTE: Consistent with its independence as
protector of the people and as prosecutor to ensure
accountability of public officers, the Ombudsman is
not and should not be limited in its review by the
action or inaction of complainants. On the other
hand, it is clear from Sec. 15 of R.A. No. 6770 that the
Ombudsman may motu proprio conduct a
reinvestigation to assure that the guilty do not go
unpunished. (Roxas v. Vasquez, G.R. No. 114944, 19
June 2001) The Ombudsman is not precluded from
ordering another review of a complaint, for he or
she may revoke, repeal or abrogate the acts or
previous rulings of a predecessor in office. (Alvarez
v. People, G.R. No. 192591, 29 June 2011)
Effect of the Filing of a Petition for Review before
the DOJ if the Information was already filed in
Court
Should the information be already filed in court but
the accused filed a petition for review of the findings
of the prosecutors with the DOJ, the court is bound
to suspend the arraignment of the accused for a
period not exceeding 60 days. (Sec. 11, Rule 116,
ROC, as amended)
NOTE: The suspension shall be made upon motion
by the proper party. (Ibid.)
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Q: Does the SC and CA have the power to review
the findings of prosecutors in preliminary
investigation?
A: YES. The SC and CA have the power to review the
findings of prosecutors in preliminary
investigations. Courts should never shirk from
exercising their power, when the circumstances
warrant, to determine whether the prosecutor’s
findings are supported by the facts, or by the law. In
so doing, courts do not act as prosecutors but as
organs of the judiciary, exercising their mandate
under the Constitution, relevant statutes, and
remedial rules to settle cases and controversies. The
exercise of this Court’s review power ensures that,
on the one hand, probable criminals are prosecuted,
and, on the other hand, the innocent are spared
from baseless prosecution. (Social Security System v.
DOJ, G.R. No. 158131, 08 Aug. 2007)
NOTE: Even the RTCs can also make their own
determination, upon proper motion, whether
probable cause exists to hold the accused for trial.
(Ladlad v. Velasco, G.R. Nos. 172070-72, 01 June
2007)
Preliminary Investigation
It 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. (Sec. 1, Rule 112, ROC, as
amended)
It is merely inquisitorial and a means of determining
the persons who may be reasonably charged with a
crime. (Herrera, 2007) It is not, therefore, a trial and
so does not involve the examination of witnesses by
way of direct or cross-examinations.
Its purpose is not to declare the respondent guilty
beyond reasonable doubt, but only to determine
first, whether or not a crime has been committed
and second, whether or not the respondent is
“probably guilty” of the crime. The question to be
answered in a preliminary investigation is not: "Is
the respondent guilty or is he innocent?” More
accurately, the question sought to be answered is:
491
“Is the respondent probably guilty and, therefore,
should go to trial?” (Riano, 2019; Ong v.
Sandiganbayan, G.R. No. 126858, 16 Sep. 2005)
NOTE: It is not part of the trial of the criminal action
in court. Nor is its record part of the records of the
case in the RTC. The dismissal of the case by the
investigator will not bar the filing of another
complaint for the same offense, but, if re-filed, the
accused is entitled to another preliminary
investigation. (US v. Marfori, G.R. No. 10905, 09 Dec.
1916)
Specific Purposes of Preliminary Investigation
It is established by jurisprudence that the following
are specific purposes of preliminary investigation:
1. To inquire concerning the commission of a
crime and the connection of the accused with it,
in order that he may be informed of the nature
and character of the crime charged against him,
and if there is probable cause for believing him
guilty, that the state shall take the necessary
steps to bring him to trial;
2. To preserve the evidence and keep the
witnesses within the control of the state; and
3. To determine the amount of bail, if the offense
is bailable. (Callo-Claridad v. Esteban, G.R. No.
191567, 20 Mar. 2013)
Right to a Preliminary Investigation
The holding of a preliminary investigation is not
required by the Constitution. The right thereto is of
a statutory character and may be invoked only when
specifically created by statute. (Marinas v. Siochi,
G.R. No. L-25707, 14 May 1981)
While that right is statutory rather than
constitutional in its fundament, since it has in fact
been established by statute, it is a component part
of due process in criminal justice. The right to have
a preliminary investigation conducted before being
bound over to trial for a criminal offense and hence,
formally at risk of incarceration or some other
penalty, is not a mere formal or technical right; it is
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a substantive right. The accused in a criminal trial is
inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense;
the right to an opportunity to avoid a process
painful to anyone save, perhaps, to hardened
criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to
deprive him the full measure of his right to due
process. (Go v. Court of Appeals, G.R. No. 101837, 11
Feb. 1992)
Waiver of the Right to Preliminary Investigation
It shall be deemed waived by:
1. Express waiver or by silence; (Herrera, 2007)
2. Failure to invoke it during arraignment; (People
v. De Asis, G.R. No. 105581, 07 Dec. 1993)
3. Consenting to be arraigned and entering a plea
of not guilty without invoking the right to
preliminary investigation; or (People v. Bulosan,
G.R. No. 58404, 15 Apr. 1988)
4. Failure to request for it within 5 days from the
time he learns of the filing of the complaint or
information, in those instances where the
accused is lawfully arrested without a warrant.
(Sec. 6, Rule 112, ROC, as amended)
NOTE: The waiver, whether express or implied,
must be in a clear and unequivocal manner.
(Herrera, 2007)
When Preliminary Investigation is Required
GR: Before the filing of a complaint or information
for an offense where the penalty prescribed by law
is imprisonment of at least 4 years, 2 months and 1
day without regard to the imposable fine. (Sec. 1,
Rule 112, ROC, as amended)
XPNs:
1. Where an information or complaint is filed
pursuant to Sec. 7, Rule 112 of the Rules of Court,
i.e., the complaint or information is filed directly
in court (Ibid.); or
2. For cases requiring preliminary investigation,
when a person is lawfully arrested without a
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2023 GOLDEN NOTES
warrant provided that inquest was made in
accordance with Rule 112. (Sec. 6, Rule 112,
ROC, as amended)
Rights of the Respondent in a Preliminary
Investigation
Preliminary investigation is not part of trial and is
conducted only to establish whether probable cause
exists. Consequently, it is not subject to the same
due process requirements that must be present
during trial. Thus, a person’s rights during
preliminary investigation are limited to those
provided by procedural law. (Reyes v. Office of the
Ombudsman, G.R. No. 208243, 05 June 2017)
1. To examine the evidence submitted by the
complainant at his own expense;
NOTE: Object evidence need not be furnished
but shall be made available for examination,
copying or photographing at the expense of the
requesting party. (Sec. 3(b), Rule 112, ROC, as
amended)
While a respondent under preliminary
investigation has the right to examine the
evidence submitted by the complainant, he or
she does not have a similar right over the
evidence submitted by his or her co-
respondents. (Reyes v. Office of the Ombudsman,
Ibid.)
2. To submit a counter affidavit; (Sec. 3(c), Rule
112, ROC, as amended) and
NOTE: The prosecutor is not mandated to
require the submission of counter-affidavits.
Probable cause may then be determined on the
basis alone of the affidavits and supporting
documents of the complainant, without
infringing on the constitutional rights of the
petitioners. (Borlongan, Jr. v. Pena, G.R. No.
143591, 23 Nov. 2007)
3. To be present during the clarificatory hearing.
(Sec. 3(e), Rule 112, ROC, as amended)
NOTE: While the parties can be present at the
hearing, they are without the right to examine
492
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VII. CRIMINAL PROCEDURE
or cross-examine. They may, however, submit
to the investigating officer questions which may
be asked to the party or witness concerned.
Purposes of Preliminary Investigation
1. For the investigating prosecutor to determine if
the crime has been committed;
2. To inquire concerning the commission of a
crime and the connection of the accused with it,
in order that he may be informed of the nature
and character of the crime charged against him,
and if there is probable cause for believing him
guilty, that the state shall take the necessary
steps to bring him to trial; (Callo-Claridad v.
Esteban, G.R. No. 191567, 20 Mar. 2013)
3. To protect the accused from inconvenience,
expense and burden of defending himself in a
formal trial unless the probability of his guilt is
first ascertained by a competent officer;
4. To secure the innocent against hasty, malicious,
and oppressive prosecution and to protect him
from an open and public accusation of a crime
and anxiety of a public trial;
5. To preserve the evidence and keep the
witnesses within the control of the state; (Ibid.)
6. To protect the State from having to conduct
useless and expensive trials; and
7. To determine the amount of bail, if the offense
is bailable. (Herrera, 2007)
Probable Cause in Preliminary Investigation
It is the existence of such facts and circumstances as
would excite belief in a reasonable mind, acting on
the facts within the knowledge of the prosecutor,
that the person charged was prosecuted. A finding
of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt. (Sps.
Balangauan v. CA, G.R. No. 174350, 13 Aug. 2008)
NOTE: The evidence needed is not based on clear
and convincing evidence of guilt, neither on
493
evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing
absolute certainty of guilt. It needs only to rest on
evidence showing that, more likely than not, a crime
has been committed by the accused. (People v. Borje,
G.R. No. 170046, 10 Dec. 2014)
Instances when Probable Cause needs to be
established
It is not only in preliminary investigation that
probable cause needs to be determined. There are
other instances provided under the Rules where
probable cause needs to be established:
1. When issuing a warrant of arrest or a
commitment order; (Secs. 5 and 8, Rule 112,
ROC, as amended)
2. A peace officer or a private person making a
warrantless arrest when an offense has just
been committed, and he has probable cause to
believe based on personal knowledge of facts or
circumstances that the person to be arrested
has committed it; (Sec. 5(b), Rule 113, ROC, as
amended) and
3. To determine whether a search warrant shall be
issued. (Sec. 4, Rule 126, ROC, as amended)
Persons Authorized to conduct a Preliminary
Investigation
1. Provincial or City prosecutors and their
assistants; (Sec. 2(a), Rule 112, ROC, as
amended)
2. National and Regional State Prosecutors; (Sec.
2(b), Rule 112, ROC, as amended)
3. Other officers as may be authorized by law, such
as:
a. Ombudsman – for any act or omission of
any public officers or employees which
appears to be illegal, unjust, improper, or
inefficient which is cognizable by the
Sandiganbayan; (R.A. No. 6770)
b. COMELEC – for all election offenses
punishable by Omnibus Election Code;
(Sec. 265, Omnibus Election Code)
c. PCGG, with the assistance of the OSG – for
ill-gotten wealth cases of former President
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Marcos, his relatives, and associates; and
(E.O. No. 14)
d. Other government agencies empowered to
investigate, file, and prosecute cases
investigated by it.
NOTE: Their authority to conduct preliminary
investigation shall include all crimes cognizable by
the proper court in their respective territorial
jurisdiction. (Sec. 2, Rule 112, ROC, as amended)
Judges of first level courts are no longer authorized
to conduct preliminary investigation. (A.M. No. 05-8-
26-SC, effective 03 Oct. 2005)
Court Interference in the Conduct of
Preliminary Investigation
GR: The courts cannot interfere in the conduct of
preliminary investigations, leaving the
investigatory officers sufficient discretion to
determine probable cause.
XPN: When the acts of the officer are without or in
excess of authority resulting from a grave abuse of
discretion. (Sps. Balangauan v. CA, G.R. No. 174350,
13 Aug. 2008)
Extent of Authority of the Ombudsman in the
conduct of Preliminary Investigation
The Ombudsman has primary authority to
investigate and exclusive authority to file and
prosecute Sandiganbayan cases. (Ledesma v. CA, G.R.
No. 161629, 29 July 2005)
The Ombudsman is authorized to take over at any
stage, from any investigatory agency of the
government, the investigation of such cases. (Sec.
15, R.A. No. 6770)
NOTE: The power to investigate and to prosecute
granted to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any
public officer or employee when such act or
omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan
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2023 GOLDEN NOTES
and those cognizable by the regular courts. (Office of
the Ombudsman v. Breva, G.R. No. 145938, 10 Feb.
2006)
As an independent constitutional body, the Office of
the Ombudsman is beholden to no one, acts as the
champion of the people and is the preserver of the
integrity of the public service. Thus, it has the sole
power to determine whether there is probable
cause to warrant the filing of a criminal case against
an accused. This function is executive in nature.
(Dichaves v. Ombudsman, G.R. No. 206310, 07 Dec.
2016)
Generally, the Supreme Court will not interfere with
the Office of the Ombudsman’s determination of
probable cause, unless there is a clear and
convincing showing of grave abuse of discretion.
(Binay v. Office of the Ombudsman, G.R. Nos. 213957-
58, 07 Aug. 2019)
NOTE: This, however, does not include
administrative cases of court personnel because the
1987 Constitution vests in the SC administrative
supervision over all courts and court personnel.
Preliminary Investigation in Election Cases
The Commission on Elections is vested the power to
conduct preliminary investigations; it may deputize
other prosecuting arms of the government to
conduct preliminary investigation and prosecute
offenses. (People v. Basilla, G.R. Nos. 83938-40, 06
Nov. 1989)
The Commission on Elections has exclusive power
to conduct preliminary investigation of all election
offenses punishable under the election laws and to
prosecute the same, except as may otherwise be
provided by law. The Commission on Elections
exercises constitutional authority to investigate
and, where appropriate, prosecute cases for
violation of election laws, including acts or
omissions constituting election frauds, offenses and
malpractices. (Albaña v. Belo, G.R. No. 158734, 02
Oct. 2009)
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VII. CRIMINAL PROCEDURE
WHEN WARRANT OF ARREST MAY ISSUE
Determination of Probable Cause
Within 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
supporting evidence. (Sec. 5(a), Rule 112, ROC, as
amended)
Options of the Judge upon the filing of
Information
1. Dismiss the case if the evidence on record
clearly failed to establish probable cause;
2. If he or she finds probable cause, issue a
warrant of arrest or issue a commitment order
if the accused has already been arrested
pursuant to a warrant of arrest or lawfully
arrested without warrant; or
3. In case of doubt as to the existence of probable
cause, order the prosecutor to present
additional evidence within 5 days from notice,
the issue to be resolved by the court within 30
days from the filing of the information.
Upon filing of an information in court, trial court
judges must determine the existence or non-
existence of probable cause based on their personal
evaluation of the prosecutor's report and its
supporting documents. They may dismiss the case,
issue an arrest warrant, or require the submission
of additional evidence. However, they cannot
remand the case for another conduct of preliminary
investigation on the ground that the earlier
preliminary investigation was improperly
conducted. (Maza v. Turla, G.R. NO. 187094, 15 Feb.
2017)
But the option to order the prosecutor to present
additional evidence is not mandatory. The court’s
first option under the above is for it to “immediately
dismiss the case if the evidence on record clearly
fails to establish probable cause.” That is the
situation here: the evidence on record clearly fails
to establish probable cause against the respondents.
It is only “in case of doubt on the existence of
probable cause” that the judge may order the
495
prosecutor to present additional evidence within
five days from notice. (People v. Dela Torre-Yadao,
G.R. Nos. 162144-54, 13 Nov. 2012)
NOTE: It bears stressing that the judge is required
to personally evaluate the resolution of the
prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. (Ong
v. Genio, G.R. No. 182336, 23 Dec. 2009)
Q: The NBI Director requested the prosecution
of Janet Lim Napoles for serious illegal
detention. The assistant state prosecutor
recommended the dismissal of the complaint.
However, in a Review Resolution, the senior
deputy state prosecutor reversed the same and
recommended the filing of the information. An
Information for serious illegal detention was
filed before the RTC and Judge Alameda issued a
warrant for her arrest. Aggrieved, Napoles filed
before the CA a Petition for Certiorari imputing
grave abuse of discretion on the part of the
senior deputy state prosecutor. She contended
that there was no probable cause to charge her
with serious illegal detention, and that the RTC
Judge Alameda erred in issuing the arrest. Is she
correct?
A: NO. Even before the filing of the Petition
questioning the Review Resolution, an Information
for serious illegal detention had been filed against
Napoles. Therefore, with the filing of the
Information before the trial court, this Petition has
become moot and academic. The trial court has then
acquired exclusive jurisdiction over the case, and
the determination of the accused’s guilt or
innocence rests within the sole and sound
discretion of the trial court.
That Judge Alameda issued the arrest warrant
within the day he received the records of the case
from the prosecutor does not mean that the warrant
was hastily issued. Judge Alameda was under no
obligation to review the entire case record as
Napoles insists. All that is required is that a judge
personally evaluates the evidence and decides,
independent of the finding of the prosecutor, that
probable cause exists so as to justify the issuance of
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an arrest warrant. (Napoles v. Hon. Sec. De Lima, G.R.
No. 213529, 13 July 2016)
Complaint Filed Pursuant to a Lawful
Warrantless Arrest
The court shall issue a commitment order instead
of a warrant of arrest. In case the judge doubts the
existence of probable cause, the judge may order the
prosecution to present additional evidence within 5
days from notice. The issue must be resolved by the
court within 30 days from the filing of the complaint
or information. (Sec. 5(a), Rule 122, ROC, as amended
by A.M. No. 05-08-26-SC, 30 Aug. 2005)
Instances when no Warrant of Arrest is
Necessary
1. If the accused is already under detention
pursuant to a warrant of arrest issued by the
Municipal Trial Court pursuant to its power to
conduct preliminary investigation; (Sec. 5(c),
Rule 112, ROC, as amended)
2. If the accused is lawfully arrested without a
warrant; (Sec. 5(c), Rule 112, ROC, as amended)
NOTE: If the offense by which the person was
arrested requires a preliminary investigation,
an inquest proceeding shall be conducted.
3. If the offense is penalized by fine only; (Sec. 5(c),
Rule 112, ROC, as amended; Luz v. People of the
Philippines, G.R. No. 197788, 29 Feb. 2012)
4. When there was no need for prior preliminary
investigation and the case is not governed by
the Rules on Summary Procedure, the judge
may issue summons instead of a warrant of
arrest, except when he fails to appear whenever
required; or
5. When the case is subject to the Rules on
Summary Procedure, (Sec. 16, 1991 Rule on
Summary Procedure) except when he fails to
appear whenever required. (Uy v. Javellana, 680
SCRA 13, 05 Sept. 2012; Office of the Court
Administrator v. Tormis, 693 SCRA 117, 133-134,
12 Mar. 2013)
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2023 GOLDEN NOTES
Cases NOT Requiring a Preliminary
Investigation
A preliminary investigation shall not be required
under the following:
1. When the penalty prescribed by law for the
offense is imprisonment of less than 4 years, 2
months and 1 day; (Sec. 8(a), Rule 112, ROC, as
amended) and
2. If a person is arrested lawfully without a
warrant involving an offense which requires
preliminary investigation, an information or
complaint may be filed against him without
need for a preliminary investigation, provided
an inquest has been conducted in accordance
with existing rules. (Sec. 6, Rule 112, as amended
by A.M. No. 05-08-26-SC, 30 Aug. 2005)
Thus, if a person is arrested by a police officer
in flagrante delicto while robbing the victim
through violence or intimidation, the arrest is a
lawful one and a preliminary investigation is
not required even if the penalty for robbery is
more than 4 years, 2 months, and 1 day. (Riano,
2019)
Furthermore, if he has been arrested in a place
where an inquest prosecutor is available, an
inquest will be conducted instead of a
preliminary investigation. In the absence or
unavailability of an inquest prosecutor, an
inquest may be dispensed with. The rule, hence,
allows the filing of the complaint directly with
the proper court by the offended party or peace
officer on the basis of the affidavit of the
offended party or arresting officer or person.
(Riano, 2019)
In cases where Preliminary Investigation is not
required, it may be instituted:
1. By filing the complaint directly with the
prosecutor; or
NOTE: The prosecutor shall act on the
complaint based on the affidavits and other
supporting documents submitted by the
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complainant within 10 days from its filing. (Sec.
8(a), Rule 112, ROC, as amended)
2. By filing the complaint or information with the
MTC.
Instances when Amendment of an Information
does NOT warrant a new Preliminary
Investigation
1. Amendment to information is not substantial;
(Villaflor v. Vivar, G.R. No. 134744, 16 Jan. 2001)
2. The court orders the filing of correct
information involving a cognate offense; and
(Sy Y Lim v. CA, G.R. No. L-37494, 30 Mar. 1982)
3. If the crime originally charged is related to the
amended charge such that an inquiry into one
would elicit substantially the same facts that an
inquiry to another would reveal. (Orquinaza v.
People, G.R. No. 165596, 15 Nov. 2005; Herrera,
2007)
Instances when Amendment of an Information
warrants a new Preliminary Investigation
1. If the amendment of the information changes
the nature of the crime charged; (Luciano v.
Mariano, G.R. No. L-32950, 30 July 1971) or
2. When on its face the information is null and
void for lack of authority to file the same and
cannot be cured or revived by an amendment.
(Cruz, Jr. v. Sandiganbayan, G.R. No. 94595, 26
Feb. 1991)
Instances when a new Preliminary Investigation
is required to accord the Accused the Right to
submit Counter-Affidavits and Evidence
A new preliminary investigation is required in order
to accord the accused the right to submit counter-
affidavits and evidence only in the following
instances:
1. Where the original witnesses of the prosecution
or some of them may have recanted their
testimonies or may have died or may no longer
497
be available and new witnesses for the state
have emerged;
2. Where aside from the original accused, other
persons are charged under a new criminal
complaint for the same offense or necessarily
included therein;
3. If under a new criminal complaint, the original
charge has been upgraded; or
4. If under a new criminal complaint, the criminal
liability of the accused is upgraded from being
an accessory to that of a principal. (Ciron v.
Gutierrez, G.R. Nos. 194339-41, 20 Apr. 2015)
REMEDIES OF ACCUSED IF THERE WAS
NO PRELIMINARY INVESTIGATION
The accused must question the lack of preliminary
investigation before he enters his plea. The court
shall resolve the matter as early as practicable but
not later than the start of the trial.
An application for or admission of the accused to
bail does not bar him from raising such question.
(Sec. 26, Rule 114, ROC, as amended) Failure to
invoke the right before entering a plea will amount
to a waiver.
Remedies Available to the Accused if there was
no Preliminary Investigation conducted
Pursuant to a Lawful Warrantless Arrest
1. Before the complaint or information is filed, the
person arrested may ask for a preliminary
investigation but he must sign a waiver of the
provisions of Art. 125 of the RPC, as amended in
the presence of his counsel;
NOTE: Art. 125 of the RPC deals with the period
of delay in the delivery of detained persons to
the proper judicial authorities.
Accused may file a petition for certiorari if
preliminary investigation is refused;
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The waiver by the person lawfully arrested of
the provisions of Art. 125 of the RPC does not
preclude him from applying for bail;
2. After the filing of the complaint or information
in court without a preliminary investigation,
the accused may, within 5 days from the time he
learns of its filing, ask for a preliminary
investigation with the same right to adduce
evidence as provided in the Rule; (Sec. 6, Rule
112, ROC, as amended)
3. Refuse to enter a plea upon arraignment and
object to further proceedings upon such
ground;
4. Raise lack of preliminary investigation as error
on appeal; (US v. Banzuela, G.R. No. 10172, 01
Oct. 1915) or
5. File for prohibition. (Conde v. CFI, G.R. No.
21236, 01 Oct. 1923)
Absence of a Preliminary Investigation; Effects
1. It does not become a ground for a motion to
quash the complaint or information as it does
not impair the validity of the information or
render it defective or affect the jurisdiction of
the court; (Sec. 3, Rule 117, ROC, as amended;
People v. Buluran, G.R. No. 113940, 15 Feb. 2000)
2. It does not affect the court’s jurisdiction but
merely the regularity of the proceedings;
(People v. De Asis, G.R. No. 105581, 07 Dec. 1994)
3. It does not impair the validity of the
information or render it defective; and
4. It justifies the release of the respondent or
nullifies the warrant of arrest against him.
(Larranaga v. CA, G.R. No. 130644, 13 Mar. 1998)
NOTE: If the accused raises the issue of lack of
preliminary investigation before entering a plea, the
court, instead of dismissing the information, should
remand the case to the prosecutor so that the
investigation may be conducted. (Ibid.)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
The right to preliminary investigation cannot be
raised for the first time on appeal. (Pilapil v.
Sandiganbayan, G.R. No. 101978, 07 Apr. 1993)
If lack of preliminary investigation is raised in a
proceeding pending before the Sandiganbayan, the
proceeding will be held in abeyance and the case
should be remanded to the Office of the
Ombudsman or the Special Prosecutor to conduct
the preliminary investigation. (Ong v.
Sandiganbayan, G.R. No. 126858, 16 Sept. 2005)
Q: The police officers arrived at the scene of the
crime less than one hour after the alleged
altercation and they saw Atty. Generoso badly
beaten. Atty. Generoso pointed to the
petitioners as those who mauled him, which
prompted the police officers to “invite” the
petitioners for investigation. Consequently, the
petitioners were indicted for attempted murder.
The petitioners filed an Urgent Motion for
Regular Preliminary Investigation on the
ground that they had not been lawfully arrested
as there was no valid warrantless arrest since
the police officers had no personal knowledge
that they were perpetrators of the crime. Were
the petitioners validly arrested without a
warrant?
A: YES. The records show that soon after the report
of the incident, SPO2 Javier was immediately
dispatched to render personal assistance to the
victim. This alone negates the petitioners’ argument
that the police officers did not have personal
knowledge that a crime had been committed.
Personal knowledge of a crime just committed does
not require actual presence at the scene while the
crime was being committed; it is enough that
evidence of the recent commission of the crime is
patent and the police officer has probable cause to
believe based on personal knowledge of facts and
circumstances, that the person to be arrested has
recently committed the crime. (Pestilos, et al. v.
Generoso, G.R. No. 182601, 10 Nov. 2014)
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INQUEST
Inquest Proceeding
It is an informal and summary investigation
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without
the benefit of a warrant of arrest. It is informal and
summary and is issued by the court for the purpose
of determining whether or not said persons should
remain under custody and correspondingly be
charged in court. (Sec. 1, DOJ Circular No. 61)
Duties of an Inquest Officer
The initial duty of the inquest officer is to determine
if the arrest of the detained person was valid and in
accordance with Sec. 5(a) and (b) of Rule 113 of the
Rules of Court; should the inquest officer find that
the arrest was not made in accordance with the
Rules, he shall:
1. Recommend the release of the person arrested
or detained;
2. Note down the disposition on the referral
document;
3. Prepare a brief memorandum indicating the
reasons for the action taken; and
4. Forward the same, together with the record of
the case, to the City or Provincial Prosecutor for
appropriate action. (Sec. 9, DOJ Circular No. 61)
NOTE: Where the recommendation is approved by
the City or Provincial Prosecutor but the evidence
on hand warrant the conduct of a regular
preliminary investigation, the order of release shall
be served on the officer having custody of said
detainee and shall direct the said officer to serve
upon the detainee the subpoena or notice of
preliminary investigation, together with the copies
of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses
and other supporting evidence.
Should it be found that the arrest was properly
effected, the officer shall:
1. Ask the detained person if he desires to avail
himself of a preliminary investigation; and
499
2. If he does, he shall be made to execute a waiver
of the provision of Art. 125 of RPC with the
assistance of a lawyer. (Sec. 10, Part II, Manual
for Prosecutors)
Person to conduct Preliminary Investigation
The preliminary investigation may be conducted by
the inquest officer himself or by any other assistant
prosecutor to whom the case may be assigned by
the city or provincial prosecutor, which
investigation shall be terminated within 15 days
from its inception. (Sec. 10, Part II, Manual for
Prosecutors)
Finding of Probable Cause
1. If the inquest officer finds that probable
cause exists – he or she shall forthwith prepare
the corresponding complaint or information
with the recommendation that the same be filed
in court. (Sec. 13, Part II, Manual for
Prosecutors)
2. If the inquest officer finds no probable cause
– he or she shall recommend the release of the
arrested or detained person. (Sec. 15, Part II,
Manual for Prosecutors)
Matters included in a Referral Document
1. Affidavit of arrest;
2. Investigation report;
3. The statement of the complainant and
witnesses; and
4. Other supporting evidence gathered by the
police in the course of the latter's investigation
of the criminal incident involving the arrested
or detained person.
NOTE: The inquest officer shall, as far as
practicable, cause the affidavit of arrest and
statements or affidavits of the complainant and the
witnesses to be subscribed and sworn to before him
by the arresting officer and the affiants. (Sec. 3, Part
II, Manual for Prosecutors)
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immune from the criminal jurisdiction of the
country of their assignment and are, therefore,
immune from arrest; and
3. Duly accredited ambassadors, public ministers
of a foreign country, their duly registered
domestics, subject to the principle of
reciprocity. (Secs. 4 and 7, R.A. No. 75)
How Arrest is made
1. By an actual restraint of a person to be arrested;
or
2. By his submission to the custody of the person
making the arrest. (Sec. 2, Rule 113, ROC, as
amended)
NOTE: Arrest may be made on any day, at any time
of the day or night. (Sec. 6, Rule 113, ROC, as
amended)
The head of the office to which the warrant was
delivered must cause it to be executed within 10
days from its receipt, and the officer to whom it is
assigned must make a report to the judge who
issued the warrant within 10 days from the
expiration of the period. If he fails to execute it, he
should state the reason therefor. (Sec. 4, Rule 113,
ROC, as amended)
1. ARREST WITHOUT WARRANT,
WHEN LAWFUL
Instances when Warrant of Arrest is NOT
necessary
1. Accused is already under detention;
2. Complaint or information was filed pursuant to
a valid warrantless arrest; and
3. Complaint or information is for an offense
penalized by fine only. (Sec. 5(c), Rule 112, ROC,
as amended)
Instances of a Valid Warrantless Arrest
1. In flagrante delicto arrest;
2. Doctrine of hot pursuit;
3. Escapee; (Sec. 5, Rule 113, ROC, as amended) and
4. Other lawful warrantless arrests:
501
a. When a person previously and lawfully
arrested, escapes or is rescued, any person
may immediately pursue or retake him
without a warrant at any time and in any
place within the Philippines; (Sec 13, Rule
113, ROC, as amended)
b. When an accused released on bail
attempts to depart from the Philippines
without permission of the court where the
case is pending; (Sec 23, Rule 114, ROC, as
amended) and
c. For the purpose of surrendering the
accused, the bondsmen may arrest him or
upon written authority endorsed on a
certified copy of the undertaking, cause
him to be arrested by a police officer or
any other person of suitable age and
discretion. (Sec 23, Rule 114, ROC, as
amended)
Q: On his way home, a member of the Caloocan
City police force witnessed a bus robbery in
Pasay City and effects the arrest of the suspect.
Can he bring the suspect to Caloocan City for
booking since that is where he is stationed?
Explain briefly. (2007 BAR)
A: NO. Under Sec. 5, Rule 113 of the Revised Rules of
Criminal Procedure, it shall be the duty of the officer
executing the warrant to arrest the accused and to
deliver him to the nearest police station or jail
without unnecessary delay. This rule equally
applies to situations of warrantless arrests. Here,
the arrest was made in Pasay City. Hence, the
suspect should be brought to the nearest police
station in Pasay City for booking and not in Caloocan
City.
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2. The officer has announced his authority and
purpose for entering therein; and
3. He has requested and been denied admittance.
(Sec. 11, Rule 113, ROC, as amended)
A lawful arrest may be made anywhere, even on a
private property or in a house. This rule is
applicable both where the arrest is under a warrant,
and where there is a valid warrantless arrest.
Objects subject to Confiscation from the Person
Arrested
1. Objects subject of the offense or used or
intended to be used in the commission of the
crime;
2. Objects which are fruits of the crime;
3. Those which might be used by the arrested
person to commit violence or to escape; and
4. Dangerous weapons and those which may be
used as evidence in the case.
NOTE: Arrest must precede the search; the
process cannot be reversed. Nevertheless, a search
substantially contemporaneous with an arrest can
precede the arrest at the outset of the search.
Q: Jose, Alberto and Romeo were charged with
murder. Upon filing of the information, the RTC
judge issued the warrants of arrest. Learning of
the issuance of the warrants, the three accused
jointly filed a motion for reinvestigation and for
the recall of the warrants of arrest. On the date
set for hearing of their motion, none of the
accused showed up in the court for fear of being
arrested. The RTC judge denied their motion
because the RTC did not acquire jurisdiction
over the persons of the movants. Did the RTC
rule correctly? (2008 BAR)
A: NO. The court acquired jurisdiction over the
person of the accused when they filed the aforesaid
motion and invoked the court’s authority over the
case, without raising the issue of jurisdiction over
their person. The filing of the motion is tantamount
to voluntary submission to the court’s jurisdiction
and constitutes voluntary appearance. (Miranda v.
Tuliao, G.R. No. 158763, 31 Mar. 2006)
503
BY OFFICER WITHOUT WARRANT (2017 BAR)
GR: No peace officer or person has the power or
authority to arrest anyone without a warrant except
in those cases expressly authorized by law. (Umil v.
Ramos, G.R. No. 81567, 03 Oct. 1991)
XPNs:
1. In flagrante delicto arrest – When, in his
presence, the person to be arrested has
committed, is actually committing, or is
attempting to commit an offense; (Sec. 5(a),
Rule 113, ROC, as amended)
Elements of in flagrante delicto arrest are:
a. The person arrested must execute an overt
act indicating that he has just committed, is
actually committing, or is attempting to
commit a crime; and
b. Such overt act is done in the presence or
within the view of the arresting officer.
NOTE: Reliable information provided by
police assets alone is not sufficient to justify
a warrantless arrest. There must be
independent circumstances perceivable by
the arresting officers suggesting that a
criminal offense is being committed to
comply with the exacting requirements of
Rule 113, Section 5 of the Rules of Court. An
accused must perform some overt act
within plain view of the police officers
indicating that she or he has just
committed, is actually committing, or is
attempting to commit a crime. (Villasana v.
People, G.R. No. 209078, 04 Sept. 2019)
2. Hot pursuit arrest – When an offense has been
committed and he has probable cause to believe
based on personal knowledge of facts and
circumstances that the person to be arrested
has committed it; (Sec. 5(b), Rule 113, ROC, as
amended)
Elements of hot pursuit arrest are:
a. An offense has been committed and there is
close proximity between the arrest and the
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time of commission of the crime; (Pamaran,
2007)
b. The offense has just been committed; and
c. Probable cause based on personal
knowledge on the part of the person
making the arrest, of facts or circumstances
that the person/s to be arrested committed
it. (Herrera, 2007)
NOTE: There must be compliance with the
element of immediacy between the time of the
commission of the crime and the time of arrest.
(People v. Salvatiera, G.R. No. 104663, 24 July
1997)
Personal Knowledge (2016 BAR)
“Personal knowledge of the facts and circumstances
that the person to be arrested committed it” means
personal knowledge not of the commission of the
crime itself but of facts and circumstances which
would lead to the conclusion that the person to be
arrested has probably committed the crime. Such
personal knowledge arises from reasonably worthy
information in the arresting person’s possession
coupled with his own observation and fair
inferences therefrom that the person arrested has
probably committed the offense. (People v. Del
Rosario, G.R. No. 127755, 14 Apr. 1999)
NOTE: Personal gathering of information is
different from personal knowledge. The rule
requires that the arrest immediately follows the
commission of the offense. (People v. Manlulu, G.R.
No. 102140, 22 Apr. 1994)
Q: Under Sec. 5, Rule 113 of the Revised Rules on
Criminal Procedure, a warrantless arrest is
allowed when an offense has just been
committed and the peace officer has probable
cause to believe, based on his personal
knowledge of facts or circumstances, that the
person to be arrested has committed it. A
policeman approaches you for advice and asks
you how he will execute a warrantless arrest
against a murderer who escaped after killing a
person. The policeman arrived two (2) hours
after the killing and a certain Max was allegedly
the killer per information given by a witness. He
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asks you to clarify the following: How long after
the commission of the crime can he still execute
the warrantless arrest? (2016 BAR)
A: The arrest must be made within 24 hours after
the commission of the crime. Where the arrest took
place a day after the commission of the crime, it
cannot be said that an offense has just been
committed. (People v. Del Rosario, G.R. No. 127755,
14 Apr. 1999)
ALTERNATIVE ANSWER: In executing a
warrantless arrest under Sec. 5, Rule 113 of the
Revised Rules on Criminal Procedure, the Supreme
Court held that the requirement that an offense has
just been committed means that there must be a
large measure of immediacy between the time the
offense was committed and the time of the arrest.
(Pestilos v. Generoso, G.R. No. 182601, 10 Nov. 2014).
If there was an appreciable lapse of time between
the arrest and the commission of the crime, a
warrant of arrest must be secured. In any case,
personal knowledge by the arresting officer is an
indispensable requirement to the validity of a valid
warrantless arrest.
The exact period varies on a case-to-case basis. In
People v. Gerente (G.R. Nos. 95847-48, 10 Mar. 1993),
the Supreme Court ruled that a warrantless arrest
was validly executed upon the accused three (3)
hours after the commission of the crime. In People v.
Tonog, Jr. (G.R. No. 94533, 04 Feb. 1992), the
Supreme Court likewise upheld the valid
warrantless arrest which was executed on the same
day as the commission of the crime. However, in
People v. Del Rosario, (365 Phil. 292, 14 Apr. 1999),
the Supreme Court held that the warrantless arrest
effected a day after the commission of the crime is
invalid. In Go v. Court of Appeals, (G.R. No. 101837, 11
Feb. 1992), the Supreme Court also declared invalid
a warrantless arrest effected six (6) days after the
commission of the crime.
Q: As Cicero was walking down a dark alley one
midnight, he saw an "owner-type jeepney"
approaching him. Sensing that the occupants of
the vehicle were up to no good, he darted into a
corner and ran. The occupants of the vehicle—
elements from the Western Police District—
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gave chase and apprehended him. The police
apprehended Cicero, frisked him and found a
sachet of 0.09 grams of shabu tucked in his waist
and a Swiss knife in his secret pocket, and
detained him thereafter. Is the arrest and body
search legal? (2010 BAR)
A: NO. The arrest and the body search were not
legal. Cicero’s act of running does not show any
reasonable ground to believe that a crime has been
committed or is about to be committed for the police
officers to apprehend him and conduct a body
search. Hence, the arrest was illegal as it does not
fall under any of the circumstances for a valid
warrantless arrest provided in Sec. 5, Rule 113 of the
Rules of Criminal Procedure.
3. Evasion of service of sentence by prisoner –
When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending,
or has escaped while being transferred from
one confinement to another; (Sec. 5(c), Rule 113,
ROC, as amended)
4. Where a person who has been lawfully arrested
escapes or is rescued; (Sec. 13, Rule 113, ROC, as
amended)
5. By the bondsman for the purpose of
surrendering the accused; (Sec. 23, Rule 114,
ROC, as amended)
6. Where the accused out on bail attempts to leave
the country without permission of the court;
(Sec. 23, Rule 114, ROC, as amended) and
7. Buy-bust Operation – A buy-bust operation is a
form of entrapment, in which the violator is
caught in flagrante delicto and the police
officers conducting the operation are not only
authorized but duty-bound to apprehend the
violator and to search him for anything that
may have been part of or used in the
commission of the crime.
NOTE: A warrant of arrest need not be issued if the
information or charge was filed for an offense
505
penalized by a fine only. (Sec. 5(c), Rule 112, ROC, as
amended; Luz v. People of the Philippines, G.R. No.
197788, 29 Feb. 2012)
Obligation of the Arresting Officer after the
Warrantless Arrest
The arresting officer must comply with the
provisions of Art. 125 of the RPC, otherwise, he may
be held criminally liable for arbitrary detention
under Art. 124 of the RPC. Jurisdiction over the
person arrested must be transferred to the judicial
authorities. Art. 125 is a procedural requirement in
case of warrantless arrest. A case must be filed in
court.
Period for Officers to Deliver the Person
Detained under Art. 125 of the RPC
The person must be delivered to the judicial
authorities within the period specified in Art. 125 of
the RPC (Delay in the delivery of detained persons
to the proper judicial authorities):
1. 12 hours – Light penalties (i.e., arresto menor,
public censure or a fine less than P200.00);
2. 18 hours – Correctional penalties (i.e., prision
correccional, arresto mayor, suspension,
destierro. or a fine not exceeding P6,000.00 but
not less than P200.00);
3. 36 hours – Afflictive or capital penalties (i.e.,
death, reclusion perpetua, reclusion temporal,
perpetual or temporary absolute
disqualification, perpetual or temporary special
disqualification, prision mayor, or a fine
exceeding P6,000.00).
NOTE: The accused should be brought to the
prosecutor for inquest proceedings wherein the
existence of probable cause will be determined.
Then, the judge shall issue a commitment order
(order issued by the judge when the person charged
with a crime is already arrested or detained) and
not a warrant.
Q: Fred was arrested without a warrant. After
preliminary investigation, an information was
filed in court. He pleaded not guilty during
arraignment. After trial on the merits, he was
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found guilty by the court. On appeal, he claims
that judgment was void due to his illegal arrest.
As Solicitor General, how would you refute said
claim? (2000 BAR)
A: Any objection to the illegality of the arrest of the
accused without a warrant is deemed waived when
he pleaded not guilty at the arraignment without
raising the question. It is too late to complain about
a warrantless arrest after trial is commenced and
completed and a judgment of conviction is rendered
against the accused. (People v. Cabiles, G.R. No.
112035, 16 Jan. 1998)
NOTE: An accused who enters his plea of not guilty
and participates in the trial waives the illegality of
the arrest. Objection to the illegality must be raised
before arraignment, otherwise, it is deemed waived,
as the accused, in this case, has voluntarily
submitted himself to the jurisdiction of the court.
(People v. Macam, G.R. Nos. L-91011-12, 24 Nov.
1994)
Application or admission to bail does not bar the
accused to question the validity of his arrest or the
legality of the warrant issued provided that he
raises it before he enters his plea.
Q: Boy Maton, a neighborhood tough guy, was
arrested by a police officer on suspicion that he
was keeping prohibited drugs in his clutch bag.
When Boy Maton was searched immediately
after the arrest, the officer found and recovered
10 sachets of shabu neatly tucked in the inner
linings of the clutch bag. At the time of his arrest,
Boy Maton was watching a basketball game
being played in the town plaza, and he was
cheering for his favorite team. He was
subsequently charged with illegal possession of
dangerous drugs and he entered a plea of not
guilty when he was arraigned.
During the trial, boy Maton moved for the
dismissal of the information on the ground that
the facts revealed that he had been illegally
arrested. He further moved for the suppression
of the evidence confiscated from him as being
the consequence of the illegal arrest; hence, the
fruit of the poisonous tree. The trial court, in
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denying the motions of Boy Maton, explained
that at the time the motions were filed Boy
Maton had already waived the right to raise the
issue of the legality of the arrest. The trial court
observed that, pursuant to the Rules of Court,
Boy Maton, as the accused, should have assailed
the validity of the arrest before entering his plea
to the information. Hence, the trial court opined
that any adverse consequence of the alleged
illegal arrest had also been equally waived.
Comment on the ruling of the trial court. (2017
BAR)
A: The trial court is correct insofar as Boy Maton is
considered to have waived his objections to the
illegality of his arrest. In Villanueva v. People (G.R.
No. 199042, 17 Nov. 2014), the Supreme Court held
that objections to the irregularity of arrest must be
made before his arraignment. In this case, Boy
Maton made no objection to the irregularity of his
arrest before his arraignment. Hence, the trial court
is correct when it ruled that Boy Maton had already
waived his right to question the illegality of his
arrest. Any irregularity attending the arrest of an
accused “should be timely raised in a motion to
quash the information at any time before
arraignment, failing in which, he is deemed to have
waived” his right to question the regularity of his
arrest. (People v. Cunanan, G.R. No. 198924, 16 Mar.
2015)
However, the trial court erred when it ruled that
Boy Maton likewise waived his right to assail the
illegal search. In Villanueva, the Supreme Court
ruled that “a waiver of an illegal arrest is not a
waiver of an illegal search.” It further held that
“while the accused has already waived his right to
contest the legality of his arrest, he is not deemed to
have equally waived his right to contest the legality
of the search.” Therefore, Boy Maton may still move
for the suppression of the evidence confiscated from
him being the consequences of the illegal arrest.
Ratification of an Illegal Arrest
An illegal arrest may not be ratified by the
subsequent filing of information in court.
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Once a person has been duly charged in court, he
may no longer question his detention by petition for
habeas corpus. His remedy is to quash the
information and/or the warrant of arrest.
NOTE: Lack of jurisdiction over the person of an
accused as a result of an invalid arrest must be
raised through a motion to quash before an accused
enters his or her plea. Otherwise, the objection is
deemed waived, and an accused is estopped from
questioning the legality of his or her arrest.
The voluntary submission of an accused to the
jurisdiction of the court and his or her active
participation during trial cures any defect or
irregularity that may have attended an arrest. The
reason for this rule is that "the legality of an arrest
affects only the jurisdiction of the court over the
person of the accused. (Veridiano v. People, G.R. No.
200370, 07 June 2017)
Consequences of Illegal Arrests
1. The court does not acquire jurisdiction over the
person of the accused;
2. Law enforcers incur criminal liability for the
illegal arrest;
3. Any search incident to the arrest becomes
invalid rendering the evidence acquired as
constitutionally inadmissible; (Veridiano v.
People, G.R. No. 200370, 07 June 2017)
4. The documents, things or articles seized
following the illegal arrest are inadmissible in
evidence;
5. Arresting officer may be held civilly liable for
the damages under Art. 32, NCC; and
6. He may also be held administratively liable.
Q: May authorities resort to warrantless arrest
in cases of rebellion?
A: YES. Since rebellion has been held to be a
continuing crime, authorities may resort to
warrantless arrest of persons suspected of
rebellion, as provided under Sec. 5, Rule 113 of the
Rules of Court. However, this doctrine should be
applied to its proper context, i.e., relating to
subversive armed organizations, such as the New
People’s Army, the avowed purpose of which is the
507
armed overthrowing of the organized and
established government. Only in such instance
should rebellion be considered a continuing crime.
(People v. Suzuki, G.R. No. 120670, 23 Oct. 2003)
BY PRIVATE PERSON (2017 BAR)
Instances when a Private Person may make an
Arrest (1999, 2004 BAR)
1. When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense (in flagrante
delicto);
2. When an offense has just been committed and
he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it
(hot pursuit); and
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending
or has escaped while being transferred from
one confinement to another.
NOTE: In cases falling under Nos. 1 and 2 above, the
person arrested without a warrant shall be
forthwith delivered to the nearest police station or
jail and shall be subjected to an inquest proceeding.
2. REQUISITES OF A VALID
WARRANT OF ARREST
Warrant of Arrest
It is a legal process issued by a competent authority,
directing the arrest of a person or persons upon the
grounds stated therein. (Herrera, 2007)
Person who may Issue a Warrant of Arrest
The 1987 Constitution speaks of “judges” which
means judges of all levels. This power may not be
limited much less withdrawn by Congress. The
power to determine the existence of probable cause
to issue a warrant of arrest is a function of the judge
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and such power lies in the judge alone. (People v.
Inting, G.R. No. 88919, 25 July 1990)
NOTE: The exception is in case of deportation of
illegal and undesirable aliens, whom the President
or the Commissioner of Immigration may order
arrested following a final order of deportation for
the purpose of deportation. (Salazar v. Achacoso,
G.R. No. 81510, 14 Mar. 1990)
Essential requisites of a valid warrant of arrest
1. Issued upon probable cause;
2. Probable cause is to be determined personally
by the judge after examination under oath of the
complainant and the witnesses he may
produce;
3. The judge must personally evaluate the report
of the prosecutor and the evidence adduced
during the preliminary examination; (Soliven v.
Makasiar, G.R. No. L-82585, 14 Nov. 1988)
NOTE: A warrant of arrest issued based only on
the prosecutor’s findings and recommendation
like the information and resolution finding a
probable cause, without the court determining
on its own the issue of probable cause based on
evidence is null and void; (Ho v. People, G.R. No.
106632, 09 Oct. 1997; Pamaran, 2007)
4. The warrant must particularly describe the
person to be arrested; and
5. It must be in connection with specific offense or
crime.
Period of the Validity of a Warrant of Arrest
No time limit is fixed for the validity of a warrant of
arrest, unlike a search warrant, which is effective
only for 10 days. (Pamaran, 2007) It remains valid
until arrest is effected or the warrant is lifted.
(Manangan v. CFI, G.R. No. 82760, 30 Aug. 1990)
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Remedy for Warrant of Arrest
Where a warrant of arrest was improperly issued,
the proper remedy is a petition to quash it, not a
petition for habeas corpus, since the court in the
latter case may only order his release but not enjoin
the further prosecution or the preliminary
examination of the accused. (Alimpoos v. CA, G.R. No.
L-27331, 30 July 1981)
Objection on the Validity of the Warrant
Any objection involving a warrant of arrest or the
procedure for the acquisition by the court of
jurisdiction over the person of the accused must be
made before he enters his plea; otherwise, the
objection is deemed waived. An accused may be
estopped from assailing the illegality of his arrest if
he fails to move for the quashing of the information
against him before his arraignment. And since the
legality of an arrest affects only the jurisdiction of
the court over the person of the accused, any defect
in the arrest of the accused may be deemed cured
when he voluntarily submits to the jurisdiction of
the trial court. (Lapi v. People, G.R. No. 210731, 13
Feb. 2019)
3. DETERMINATION OF PROBABLE CAUSE
FOR ISSUANCE OF WARRANT OF ARREST
Probable Cause
It refers to facts and circumstances which would
lead a reasonably discreet and prudent man to
believe that an offense has been committed by the
person ought to be arrested. It requires neither
absolute certainty nor clear and convincing
evidence of guilty. The test for issuing a warrant of
arrest is less stringer than that used for establishing
guilt of the accused. As long as the evidence shows
prima facie case against the accused, the trial court
has sufficient ground to issue a warrant of arrest.
(People v. Tan, 608 SCRA 85, 26 July 2010)
It need not be based on clear and convincing
evidence of guilt. It simply implies probability of
guilt and requires more than bare suspicion but less
than evidence which would justify a conviction. (The
Presidential Ad-Hoc Fact-Finding Committee on
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VII. CRIMINAL PROCEDURE
Behest Loans v. Desierto, G.R. No. 136225, 23 Apr.
2008).
An arrest without a probable cause is an
unreasonable seizure of a person and violates the
privacy of persons which ought not to be intruded
by the State. (Borlongan v. Peña, G.R. No. 143591, 05
May 2010)
Probable Cause to be Determined Personally by
the Judge
Under Sec. 2, Art. III of the 1987 Constitution, no
warrant of arrest shall issue except upon probable
cause “to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce.”
This constitutional provision does not mandatorily
require the judge to personally examine the
complainant and her witnesses. Instead, he or she
may opt to personally evaluate the report and
supporting documents submitted by the prosecutor
or he or she may disregard the prosecutor’s report
and require the submission of supporting affidavits
of witnesses. (AAA v. Carbonell, G.R. No. 171465, 08
June 2007)
Q: An information for murder was filed against
Rapido. The RTC judge, after personally
evaluating the prosecutor’s resolution,
documents and parties’ affidavits submitted by
the prosecutor, found probable cause and issued
a warrant of arrest. Rapido’s lawyer examined
the rollo of the case and found that it only
contained the copy of the information, the
submissions of the prosecutor and a copy of the
warrant of arrest. Immediately, Rapido’s
counsel filed a motion to quash the arrest
warrant for being void, citing as grounds:
a. The judge before issuing the warrant did not
personally conduct a searching examination
of the prosecution witnesses in violation of
his client’s constitutionally mandated
rights; and
b. There was no prior order finding probable
cause before the judge issued the arrest
warrant.
509
May the warrant of arrest be quashed on the
grounds cited by Rapido’s counsel? State your
reason for each ground. (2015 BAR)
A: NO. The warrant of arrest may not be quashed on
the grounds cited by Rapido’s counsel.
a. The Supreme Court has held in Soliven v.
Makasiar (167 SCRA 393, 14 Nov. 1988) that Sec.
2, Art. III of the 1987 Constitution does not
mandatorily require the judge to personally
examine the complainant and his witnesses.
The judge may opt to personally evaluate the
report and supporting documents submitted by
the regarding the existence of probable cause
and on the basis thereof issue a warrant of
arrest.
b. There is no requirement of a prior order by the
judge finding probable cause. The SC has held
that the judge may rely upon the resolution of
the investigating prosecutor provided that he
personally evaluates the same and the affidavits
and supporting documents, which he did.
(People v. Grey, G.R. No. 180109, 26 July 2010)
F. BAIL
(RULE 114)
1. NATURE
Bail is the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any
court as required under the conditions prescribed
under the Rules. (Sec. 1, Rule 114, ROC, as amended)
Basis of the Right to Bail
The right to bail is a constitutional right which flows
from the presumption of innocence in favor of every
accused who should not be subjected to the loss of
freedom.
Thus, the right to bail only accrues when a person is
arrested or deprived of his liberty. The right to bail
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presupposes that the accused is under legal custody.
(Paderanga v. CA, G.R. No. 115407, 28 Aug. 1995)
It would be premature to file a petition for bail for
someone whose freedom has yet to be curtailed.
(Alva v. CA, G.R. No. 157331, 12 Apr. 2006)
Constitutional Principles on Bail
a. All persons, except those charged with offenses
punishable by reclusion perpetua when
evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be
provided by law.
b. The suspension of the privilege of the writ of
habeas corpus does not impair the right to bail.
c. Excessive bail is not to be required. (Sec. 13,
Art. III, 1987 Constitution)
The Applicant for Bail must be in Custody
Bail as defined in Sec. 1, Rule 114 is “the security
given for the release of a person in custody of the
law.” Based on this definition, the accused must be
in custody of the law or otherwise deprived of his or
her liberty to be able to post bail. (Tejano v.
Marigomen, A.M. No. RTJ-17-2492, 26 Sept. 2017) A
free man, therefore, is not entitled to bail. A fugitive
may not apply for bail unless he gives himself up
first so he may be placed under the custody of law.
(Riano, 2019)
A person applying for admission to bail must be in
the custody of the law or otherwise deprived of his
liberty. A person who has not submitted himself to
the jurisdiction of the court has no right to invoke
the processes of that court. (Miranda v. Tuliao, G.R.
No. 158763, 31 Mar. 2006)
Effect of Mitigating Circumstances in
Determining the Right to Bail
The presence or absence of mitigating
circumstances is not a consideration that the
Constitution deemed worthy. It is, therefore, the
maximum penalty provided by the offense that has
bearing and not the possibility of mitigating
circumstances being appreciated in the accused’s
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favor. (Enrile v. Sandiganbayan, G.R. No. 213847, 18
Aug. 2015)
Nature of Bail Proceedings
The hearing of an application for bail should be
summary in nature or otherwise in the discretion of
the court.
NOTE: Summary hearing means such brief and
speedy method of receiving and considering the
evidence of guilt as is practicable and consistent
with the purpose of the hearing which is merely to
determine the weight of the evidence for purposes
of bail. (Ocampo v. Bernabe, G.R. No. L-439, 20 Aug.
1946)
Purposes of Bail
1. To relieve an accused from the rigors of
imprisonment until his conviction and yet
secure his appearance at the trial; (Almeda v.
Villaluz, G.R. No. L-31665, 06 Aug. 1975)
2. To honor the presumption of innocence until
his guilt is proven beyond reasonable doubt;
and
3. To enable him to prepare his defense without
being subjected to punishment prior to
conviction.
Conditions Attached to the Grant of Bail
All kinds of bail are subject to the following
conditions:
1. The undertaking shall be effective upon
approval, and unless cancelled, shall remain in
force at all stages of the case until promulgation
of the judgment of the Regional Trial Court,
irrespective of whether the case was originally
filed in or appealed to it;
2. The accused shall appear before the proper
court whenever required by the court or the
Rules;
3. The failure of the accused to appear at the trial
without justification and despite due notice
shall be deemed a waiver of his right to be
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present thereat. In such case, the trial may
proceed in absentia; and
4. The bondsman shall surrender the accused to
the court for execution of the final judgment.
(Sec. 2, Rule 114, ROC, as amended)
NOTE: The original papers shall state the full name
and address of the accused, the amount of the
undertaking and the conditions required by this
section. Photographs (passport size) taken within
the last 6 months showing the face, left and right
profiles of the accused must be attached to the bail.
(Sec. 2, Rule 114, ROC, as amended)
When the court finds that there is likelihood of the
accused jumping bail or committing other harm to
the citizenry, the court may grant other conditions
in granting bail. (Almeda v. Villaluz, G.R. No. L-31665,
06 Aug. 1975)
Bail shall be Filed:
1. In the court where the case is pending;
2. In the absence or unavailability of the judge
thereof, with any RTC judge, MTC judge, or
MCTC judge in the province, city, or
municipality;
NOTE: Where there is no showing that the
judge of court where the criminal case is
pending is unavailable, another judge who
entertains a bail application despite knowledge
of the pendency of the case in another court is
clearly in error. (Savella v. Ines, A.M. No. MTJ-07-
1673, 19 Apr. 2007)
3. If the accused is arrested in a province, city, or
municipality other than where the case is
pending, bail may also be filed with any RTC of
said place, or if no judge thereof is available,
with any MTC judge, MCTC therein; (Sec. 17(a),
Rule 114, ROC, as amended)
NOTE: When bail is filed with a court other than
where the case is pending, the judge who
accepted the bail shall forward it, together with
the order of release and other supporting
511
papers, to the court where the case is pending.
(Sec. 19, Rule 114, ROC, as amended)
4. Any person in custody who is not yet charged in
court may apply for bail with any court in the
province, city, or municipality where he is held;
(Sec. 17(c), Rule 114, ROC, as amended) or
5. Where the grant of bail is a matter of discretion,
or the accused seeks to be released on
recognizance, the application may only be filed
in the court where the case is pending, on trial
or appeal. (Sec. 17(b), Rule 114, as amended by
A.M. No. 05-8-26-SC, 03 Oct. 2005)
Q: If an information was filed in the RTC Manila
charging Mike with homicide and he was
arrested in Quezon City, in what court or courts
may he apply for bail? Explain. (2002 BAR)
A: Mike may apply for bail in the RTC Manila where
the information was filed or in the RTC Quezon City
where he was arrested, or if no judge thereof is
available, with any MTC or MCTC judge therein. (Sec.
17(a), Rule 114, ROC, as amended)
Q: The accused was arrested lawfully without a
warrant for carnapping and detained at Camp
Crame in Quezon City. He asked for a
preliminary investigation and signed a waiver of
the provisions of Art. 125 of the RPC. However,
the assisting judge of the RTC in Marikina
approved the bail bond for the accused who was
being held in Quezon City. Was the approval of
the bail bond proper?
A: NO. The bail must be applied for and issued by
the court in the province, city, or municipality
where the person arrested is held. In this case, the
bail application should have been filed with a
Quezon City court which has the authority to grant
the bail and not Marikina court. (Ruiz v. Beldia, Jr.,
A.M. No. RTJ-02-1731, 16 Feb. 2005)
Q: Is arraignment required before the court
grants bail?
A: NO. For the following reasons:
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1. The trial court could ensure the presence of the
accused at the arraignment precisely by
granting bail and ordering his presence at any
stage of the proceedings; (Sec. 2(b), Rule 114,
ROC, as amended) and
2. The accused would be placed in a position
where he has to choose between (1) filing a
motion to quash and thus delay his release on
bail, and (2) foregoing the filing of a motion to
quash so that he can be arraigned at once and
thereafter be released on bail. (Lavides v. CA,
G.R. No. 129670, 01 Feb. 2000)
Q: Bobby was charged with plunder before the
Sandiganbayan. Thereafter, he was arrested by
virtue of a warrant of arrest. He then filed an
application for bail. The Sandiganbayan refused
to resolve his application for bail until after his
arraignment. He argues that his arraignment is
not a pre-condition to his application for bail. Is
Bobby correct? Explain.
A: YES. The arraignment of an accused is not a
prerequisite to the conduct of hearings on his
petition for bail. A person is allowed to petition for
bail as soon as he is deprived of his liberty by virtue
of his arrest or voluntary surrender. An accused
need not wait for his arraignment before filing a
petition for bail.
NOTE: If the court finds in such case that the
accused is entitled to bail because the evidence
against him is not strong, he may be granted
provisional liberty even prior to arraignment; for in
such a situation, bail would be “authorized” under
the circumstances. (Serapio v. Sandiganbayan, G.R.
Nos. 148468, 148769, and 149116, 28 Jan. 2003)
Law on Juveniles in Conflict with the Law with
Respect to Bail of Non-Capital Offenses
1. The privileged mitigating circumstances of
minority shall be considered. (Sec. 34, R.A. No.
9344, Juvenile and Justice Act of 2006)
2. Where a child is detained, the court shall order
the:
a. Release of the minor on recognizance to
his/her parents and other suitable person;
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b. Release of the child in conflict with the law
on bail; or
c. Transfer of the minor to a youth detention
home or youth rehabilitation center. (Sec.
35, R.A. No. 9344)
NOTE: The court shall not order the detention of a
child in a jail pending trial or hearing of his/her case.
(Sec. 35, R.A. No. 9344)
If Minor is Unable to Furnish Bail
The minor shall be, from the time of his arrest,
committed to the care of the DSWD or the local
rehabilitation center or upon recommendation of
DSWD or other agencies authorized by the court
may, in its discretion be released on recognizance.
(Sec. 36, R.A. No. 9344)
Court Martial Offenses
The right to bail has traditionally not been
recognized and is not available in the military, as
an exception to the general rule embodied in the Bill
of Rights. (Commendador v. De Villa, G.R. No. 93177,
02 Aug. 1991)
Filing of Bail after a Final Judgment
GR: Bail may not be filed once there is already a final
judgment. (Sec. 24, Rule 114, ROC, as amended)
XPN: Even after conviction by the MTC, bail is still a
matter of right.
NOTE: If before such finality, the accused applies for
probation, he may be allowed temporary liberty
under his bail. In no case shall bail be allowed after
the accused has commenced to serve sentence.
Forms of Bail
1. Corporate surety/ Bail bond
a. It is an obligation under seal given by the
accused with one or more sureties and
made payable to the proper officer with the
condition to be void upon performance by
the accused of such acts as he may be
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VII. CRIMINAL PROCEDURE
legally required to perform;
b. The accused goes to an authorized bonding
company and he will pay a premium for the
service which is a percentage of the total
amount of bail. The bonding company will
then go to the court and execute an
undertaking, or “security bond” in the
amount of the bail bond in behalf of the
accused, that if the accused is needed, the
bonding company will bring him before the
court; and
c. If the accused jumps bail, the bond will be
cancelled, and the bonding company will be
given sufficient time to locate the
whereabouts of the accused who posted
bail but later on jumps bail. Notice to
bonding company is notice to the accused.
Notice is usually sent to the bonding
company in order to produce the body of
the accused.
NOTE: Liability of surety or bondsman
covers all three stages: trial, promulgation,
and execution of sentence.
2. Property bond
a. The title of the property will be used as
security for the provisional liberty of the
accused which shall constitute a lien over
the property;
b. The accused shall cause the annotation of
the lien within 10 days after approval of the
bond before the:
i. Registry of Deeds if the property is
registered; or
ii. Registration Book in the Registry of
Deeds of the place where the land lies
and before the provincial, city or
municipal assessor on the
corresponding tax declaration if
property is not registered; (Sec. 11,
Rule 114, ROC, as amended) and
c. The person who undertakes the conditions
513
of a regular bond will be the custodian of
the accused during the time that he is under
provisional liberty.
NOTE: In all cases, the surety of properties
must be worth the amount specified in his own
undertaking over and above all just debts,
obligations and properties exempt from
execution. (Sec. 12, Rule 114, ROC, as amended)
3. Cash deposit or cash bond
a. It is deposited by the accused himself or
any person acting in his behalf;
b. Cash shall be in the amount fixed by the
court or recommended by the prosecutor
who investigated the case;
c. It is to be deposited before the:
i. Nearest collector of internal revenue;
ii. Provincial, city or municipal treasurer;
or
iii. Clerk of court where the case is
pending;
d. No further order from the court is
necessary for the release of the accused if
the conditions prescribed were complied
with; (Sec. 14, Rule 114, ROC, as amended)
and
e. If the accused does not appear when
required, the whole amount of the cash
bond will be forfeited in favor of the
government and the accused will now be
arrested.
4. Recognizance
a. An obligation of record, entered into before
some court or magistrate duly authorized
to take it with the condition to do some
particular act. It is an undertaking of a
disinterested person with high credibility
wherein he will execute an affidavit of
recognizance to the effect that when the
presence of the accused is required in
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NOTE: All criminal cases under their
jurisdiction are bailable as a matter of right
because these courts have no jurisdiction to try
cases punishable by death, reclusion perpetua,
or life imprisonment. (Enrile v. Sandiganbayan,
G.R. No. 213847, 18 Aug. 2015)
2. Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment; (Sec. 4, Rule 114, ROC, as
amended) and
3. Before final conviction by all children in conflict
with the law for an offense not punishable by
reclusion perpetua or life imprisonment.
Q: When the accused is entitled as a matter of
right to bail, may the court refuse to grant him
bail on the ground that there exists a high
degree of probability that he will abscond or
escape? Explain. (1999 BAR)
A: NO. Where the offense is bailable, the mere
probability that the accused will escape or if he had
previously escaped while under detention does not
deprive him of his right to bail. The remedy is to
increase the amount of bail, provided the amount is
not excessive. (Sy Guan v. Amparo, G.R. No. L-1771,
04 Dec. 1947)
3. WHEN A MATTER OF DISCRETION
Bail as a Matter of Discretion (2017 BAR)
1. Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment;
2. Regardless of the stage of the criminal
prosecution, a person charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment, when evidence
of guilt is not strong; (Sec. 7, Rule 114, ROC, as
amended) and
3. A child in conflict with the law charged with an
offense punishable by death, reclusion perpetua
or life imprisonment when evidence of guilt is
not strong. (Sec. 28, A.M. No. 02-1-18-SC)
515
NOTE: The prosecution cannot adduce evidence for
the denial of bail where it is a matter of right.
However, where the grant of bail is discretionary,
the prosecution may show proof to deny the bail.
Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given
to the prosecutor or fiscal, or at least he must be
asked for his recommendation.
Recommendation is necessary because in fixing the
amount of bail, the judge is required to take into
account a number of factors such as the applicant’s
character and reputation, forfeiture of other bonds
or whether he is a fugitive from justice.
Remedy of the Accused when Bail is
Discretionary
When bail is discretionary, the remedy of the
accused is to file a petition for bail. Once a petition
for bail is filed, the court is mandated to set a
hearing to give opportunity to the prosecution to
prove that the evidence of guilt is strong. If strong,
the bail will be denied. If weak, the bail will be
granted.
Bail upon Conviction by the RTC of an Offense
not Punishable by Death, Reclusion Perpetua or
Life Imprisonment
The application for bail may be filed and acted upon
by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original
record to the appellate court. However, if the
decision of the trial court convicting the accused
changed the nature of the offense from non-bailable
to bailable, the application for bail can only be filed
with and resolved by the appellate court. (Sec. 5,
Rule 114, ROC, as amended)
Q: Charged with murder, Leviste was convicted
with the crime of homicide and was sentenced to
suffer an indeterminate penalty of six years and
one day of prision mayor as minimum to 12
years and one day of reclusion temporal as
maximum. Pending appeal he applied for bail,
but the same was denied by the CA. Petitioner’s
theory is that, where the penalty imposed by the
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trial court is more than 6 years but not more
than 20 years and the circumstances mentioned
in the third paragraph of Sec. 5 are absent, bail
must be granted to an appellant pending appeal.
In an application for bail pending appeal by an
appellant sentenced to a penalty of
imprisonment for more than six years, does the
discretionary nature of the grant of bail pending
appeal mean that bail should automatically be
granted absent any of the circumstances
mentioned in the third paragraph of Sec. 5, Rule
114 of the Rules of Court?
A: NO. In an application for bail pending appeal by
an appellant sentenced for more than six years, the
discretionary nature of the grant of bail pending
appeal does not mean that bail should automatically
be granted absent any of the circumstances
mentioned in the third paragraph of Sec. 5, Rule 114
of the Rules of Court.
The third paragraph of Sec. 5, Rule 114 applies to
two scenarios where the penalty imposed on the
appellant applying for bail is imprisonment
exceeding 6 years. The first scenario involves the
absence of any of the circumstances enumerated in
the said paragraph. The second scenario
contemplates the existence of at least one of the said
circumstances.
In the first situation, bail is a matter of sound judicial
discretion. This means that, if none of the
circumstances mentioned in the third paragraph of
Sec. 5, Rule 114 is present, the appellate court has
the discretion to grant or deny bail. An application
for bail pending appeal may be denied even if the
bail-negating circumstances in the third paragraph
of Sec. 5, Rule 114 are absent.
On the other hand, on the second situation, the
appellate court exercises a more stringent
discretion, that is, to carefully ascertain whether
any of the enumerated circumstances in fact exists.
If it so determines, it has no other option except to
deny or revoke bail pending appeal. Thus, a finding
that none of the said circumstances is present will
not automatically result in the grant of bail. Such
finding will simply authorize the court the less
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stringent sound discretion approach. (Leviste v. CA,
G.R. No. 189122, 17 Mar. 2010)
Q: Enrile and several others were charged with
plunder in the Sandiganbayan on the basis of
their purported involvement in the diversion
and misuse of appropriations under the Priority
Development Assistance Fund (PDAF). On the
same day that the warrant for his arrest was
issued, Enrile voluntarily surrendered.
Consequently, Enrile filed a Motion to Fix Bail
which was likewise denied by the
Sandiganbayan. Is Enrile entitled to bail?
A: YES. The Sandiganbayan arbitrarily ignored the
objective of bail to ensure the appearance of the
accused during the trial; and unwarrantedly
disregarded the clear showing of the fragile health
and advanced age of Enrile. As such, the
Sandiganbayan gravely abused its discretion in
denying Enrile’s Motion to Fix Bail. The Court is
further mindful of the Philippines’ responsibility in
the international community arising from the
national commitment under the Universal
Declaration of Human Rights to uphold the
fundamental human rights as well as value the
worth and dignity of every person. In the Court’s
view, his social and political standing and his having
immediately surrendered to the authorities upon
his being charged in court indicate that the risk of
his flight or escape from this jurisdiction is highly
unlikely. (Enrile v. Sandiganbayan, G.R. No. 213847,
18 Aug. 2015)
Grounds for Denial of Bail if the Penalty Imposed
by the Trial Court exceeds 6 years
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused shall
be denied bail, or his bail shall be cancelled upon
showing by the prosecution, with notice to the
accused, of the following or other similar
circumstances:
1. That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the
crime aggravated by the circumstance of
reiteration;
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2. That he previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
3. That he committed the offense while under
probation, parole, or conditional pardon;
4. That the circumstances of his case indicate the
probability of flight if released on bail; or
5. That there is undue risk that he may commit
another crime during the pendency of the
appeal. (Sec. 5, Rule 114, ROC, as amended)
Bail may also be Availed under any of the
Following Instances:
1. When a person lawfully arrested without a
warrant asks for a preliminary investigation
before the complaint or information is filed in
court, he may apply for bail. (Sec. 6, Rule 112,
ROC, as amended)
2. The court may require a witness to post bail if
he is a material witness and bail is needed to
secure his appearance. When the court is
satisfied, upon proof or oath, that a material
witness will not testify when required, it may,
upon motion of either party, order the witness
to post bail in such sum as may be deemed
proper. Upon refusal to post bail, the court shall
commit him to prison until he complies or is
legally discharged after his testimony is taken.
(Sec. 14, Rule 119, ROC, as amended)
Bail in Extradition Cases
1. While our extradition law does not provide for
the grant of bail to an extraditee, however, there
is no provision prohibiting him or her from
filing a motion for bail, a right to due process
under the Constitution.
2. While extradition is not a criminal proceeding,
it still entails a deprivation of liberty on the part
of the potential extraditee and furthermore, the
purpose of extradition is also the machinery of
criminal law.
3. The Universal Declaration of Human Rights
applies to deportation cases; hence, there is no
517
reason why it cannot be invoked in extradition
cases.
4. The main purpose of arrest and temporary
detention in extradition cases is to ensure that
the potential extraditee will not abscond.
5. Under the principle of pacta sunt servanda, the
Philippines must honor the Extradition Treaty
it entered into with other countries. Hence, as
long as the requirements are satisfactorily met,
the extraditee must not be deprived of his right
to bail. (Government of Hong Kong Special
Administrative Region v. Olalia, G.R. No. 153675,
19 Apr. 2007)
NOTE: The required proof of evidence is “clear and
convincing evidence” and not preponderance of
evidence nor proof beyond reasonable doubt. The
burden of proof lies with the extraditee. (Ibid.)
Bail in Deportation Proceedings
It is available; however, bail in deportation
proceedings is wholly discretionary. (Hang, etc. et
al. v. Commissioner of Immigration, G.R. No. L-9700,
28 Feb. 1962)
Guidelines regarding the Effectivity of Bail
The SC En Banc laid the following policies
concerning the effectivity of the bail of the accused:
1. When the accused is charged with an offense
which is punishable by a penalty lesser than
reclusion perpetua at the time of the
commission of the offense, or the application
for bail and thereafter he is convicted of a
lesser offense than that charged, he may be
allowed to be released on the same bail he
posted, pending his appeal provided, he does
not fall under any conditions of bail.
2. The same rule applies if he is charged with a
capital offense but later on convicted of a
lesser offense, that is, lower than that charged.
3. If on the other hand, he is convicted of that
offense which was charged against him, his
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bail shall be cancelled and he shall thereafter
be placed in confinement.
NOTE: Bail in these circumstances is still not a
matter of right but only a matter of sound discretion
of the court. (Herrera, 2007)
HEARING OF APPLICATION
FOR BAIL IN CAPITAL OFFENSES
A hearing of the application for bail is to be
conducted when a person is in custody for the
commission of an offense punishable by death,
reclusion perpetua, or life imprisonment. (Sec. 8,
Rule 114, ROC, as amended)
In a petition for admission to bail, the judge is under
legal obligation to receive evidence from the
prosecution with the view of determining whether
the evidence of guilt is so strong as to warrant the
denial of bail. For this purpose, therefore a hearing
must be conducted to give opportunity for the
prosecution to present evidence that the guilt of the
accused is so strong before resolution of the motion.
(Tolentino v. Camano, Jr., AM No. RTJ-00-1522, 20 Jan.
2000)
The fact that the prosecutor interposed no objection
to the application for bail by the accused did not
relieve respondent judge of the duty to set the
motion for bail for hearing. (Managuelod v. Paclibon,
Jr., A.M. No. RTJ-02-1726, 12 Dec. 2003)
Capital Offense
A capital offense is an offense which, under the law
existing at the time of its commission and of the
application for admission to bail, may be punished
with death. (Sec. 6, Rule 114, ROC, as amended)
NOTE: The imposition of death penalty was
prohibited by R.A. No. 9346 or “An Act Prohibiting
the Imposition of Death Penalty in the Philippines.”
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Hearing of Application for Bail in Offenses
Punishable by Death, Reclusion Perpetua or Life
Imprisonment
1. The hearing of the accused’s motion for bail
shall be summary; with the prosecution bearing
the burden of showing that the evidence of guilt
is strong. The accused may at his option, if he
wants the court to consider his evidence as well,
submit in support of his motion the affidavits of
his witnesses attesting to his innocence.
2. At the hearing of the accused’s motion for bail,
the prosecution shall present its witnesses with
the option of examining them on direct or
adopting the affidavits they executed during the
preliminary investigation as their direct
testimonies.
3. The court shall examine the witnesses on their
direct testimonies or affidavits to ascertain if
the evidence of guilt of the accused is strong.
The court’s questions need not follow any
particular order and may shift from one witness
to another. The court shall then allow counsels
from both sides to examine the witnesses as
well. The court shall afterwards hear the oral
arguments of the parties on whether or not the
evidence of guilt is strong.
4. Within 48 hours after hearing, the court shall
issue an order containing a brief summary of
the evidence adduced before it, followed by its
conclusion of whether or not the evidence of
guilt is strong. Such conclusion shall not be
regarded as a pre-judgment on the merits of the
case that is to be determined only after a full-
blown trial. (Sec. 6, A.M. No. 12-11-2-SC)
NOTE: The court consistently applies the rule
that it is a mandatory duty to conduct a hearing
even if the prosecution chooses to just file a
comment or leave the application for bail to the
discretion of the court. The purpose is to
determine whether the evidence of guilt is
strong as to deny the application for bail.
(Goodman vs. De la Victoria, A.M. No. RTJ-99-
1473, 16 Feb. 2000)
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Duties of the trial judge if an Application for Bail
in Offenses punishable by Reclusion Perpetua,
Life Imprisonment, or Death
1. Reasonably notify the prosecutor of the
hearing of the application for bail or require
him to submit his recommendation; (Sec. 18,
Rule 114, ROC, as amended);
2. Conduct a hearing of the application for bail
regardless of whether or not the prosecution
refuses to present evidence to show that the
guilt of the accused is strong for the purpose of
enabling the court to exercise its sound
discretion; (Secs. 7 and 8, Rule 114, ROC, as
amended);
3. Decide whether the evidence of guilt of the
accused is strong based on the summary of
evidence of the prosecution; (Baylon v. Sison,
A.M. No. 92-7-360-0, 06 Apr. 1995); and
4. If the guilt of the accused is not strong,
discharge the accused upon the approval of the
bail bond. Otherwise, petition should be
denied. (Sec. 19, Rule 114, ROC, as amended)
Party with the Burden of Proof in Bail
Applications
It is the prosecution who has the burden of showing
that evidence of guilt is strong at the hearing of an
application for bail filed by a person who is charged
with a capital offense or an offense punishable by
reclusion perpetua or life imprisonment. (Sec. 8, Rule
114, ROC, as amended)
Effect of a Grant of Bail
The accused shall be released upon approval of the
bail by the judge. (Sec. 19, Rule 114, ROC, as
amended)
Remedy of the Accused when Bail is denied by
the trial court
File a petition for certiorari under Rule 65 based on
grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing such order. Such
519
petition must take into account the hierarchy of
courts. In the meantime, however, while the case is
pending, the accused may not be released. (Caballes
v. CA, G.R. No. 163108, 23 Feb. 2005)
Evidence in Bail Hearing is Automatically
Reproduced
The evidence presented during the bail hearing
shall be considered automatically reproduced at the
trial but, upon motion of either party, the court may
recall any witness for additional examination unless
the latter is dead, outside the Philippines, or
otherwise unable to testify. (Sec. 8, Rule 114, ROC, as
amended)
GUIDELINES IN FIXING AMOUNT OF BAIL
The basic rule in fixing the amount of bail is that
excessive bail shall not be required. (Sec. 13, Art. III,
Bill of Rights, 1987 Constitution)
In fixing the amount of bail, the amount should be
high enough to assure the presence of the accused
when such presence is required, but not higher than
what is reasonably calculated to fulfill the purpose.
(Villaseñor v. Abano G.R. No. L-23599, 26 Sept. 1967)
Fixing of the Amount of Bail
Pending the raffle of the case to a regular branch of
the court, the accused may move for the fixing of the
amount of bail, in which event, the executive judge
shall cause the immediate raffle of the case for
assignment and the hearing of the motion. (Sec. 2,
A.M. No. 12-11-2-SC)
Duty of the Court to fix appropriate Bail
The court shall, after finding sufficient cause to hold
the accused for trial, fix the amount of bail that the
latter may post for his provisional release, taking
into account the public prosecutor's
recommendation and any relevant data that the
court may find from the criminal information and
the supporting documents submitted with it,
regarding the following:
1. Financial ability of the accused to give bail;
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2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of the evidence against the accused;
7. Probability of the accused appearing in trial;
8. Forfeiture of other bonds;
9. The fact that the accused was a fugitive from
justice when arrested; and
10. Pendency of the cases in which the accused is
under the bond. (Sec. 1, A.M. No. 12-11-2-SC)
BAIL WHEN NOT REQUIRED
Instances when Bail is not necessary or when
Recognizance is sufficient
1. When the offense charged is for violation of an
ordinance, a light, or a criminal offense, the
imposable penalty of which does not exceed 6
months imprisonment and/or Php2,000 fine,
under circumstances provided under R.A. No.
6036 (An Act providing that bail shall not, with
certain exceptions, be required in cases of
violations of municipal or city ordinances and in
light offenses);
2. Where a person has been in custody for a period
equal to or more than the minimum of the
imposable principal penalty, without
application of the Indeterminate Sentence Law
or any modifying circumstance, in which case
the court, in its discretion, may allow his release
on a reduced bail or on his own recognizance;
(Sec. 16, Rule 114, ROC, as amended);
3. When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribed for the offense
charged, he shall be released immediately,
without prejudice to the continuation of the
trial or the proceedings on appeal. If the
maximum penalty to which the accused may be
sentenced is destierro, he shall be released after
30 days of preventive imprisonment; (Sec. 16,
Rule 114, ROC, as amended)
4. The accused who has been detained for a period
at least equal to the minimum of the penalty for
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the offense charged against him shall be
ordered released, motu proprio or on motion
and after notice and hearing, on his own
recognizance without prejudice to the
continuation of the proceedings against him;
(Sec. 5, A.M. No. 12- 11-2-SC citing Sec. 16, Rule
114, ROC, as amended and Sec. 5(b), R.A. No.
10389)
5. Where the accused has applied for probation,
pending the resolution of the case but no bail
was filed or the accused is incapable of filing
one; (Sec. 24, Rule 114, ROC, as amended)
6. In case of a youthful offender held for a physical
and mental examination, trial, or appeal, if he is
unable to furnish bail and under circumstances
envisaged in P.D. No. 603 (Child and Youth
Welfare Code), as amended; and
7. Before final conviction, all juveniles charged
with offenses falling under the Revised Rule on
Summary Procedure shall be released on
recognizance to the custody of their parents or
other suitable person who shall be responsible
for the juveniles’ appearance in court whenever
required. (Sec. 25, A.M. No. 02-1-18-SC)
When Bail is NOT Allowed
1. A person charged with a capital offense, or an
offense punishable by reclusion perpetua or life
imprisonment, shall not be admitted to bail
when evidence of guilt is strong; (Sec. 7, Rule
114, ROC, as amended)
2. After judgment of conviction has become final;
(Sec. 24, Rule 114, ROC, as amended) or
3. After the accused has commenced to serve his
sentence. (Ibid.)
Q: Paz was awakened by a commotion coming
from a condo unit next to hers. Alarmed, she
called up the nearby police station. PO1 Remus
and P02 Romulus proceeded to the condo unit
identified by Paz. PO1 Remus knocked at the
door and when a man opened the door, PO1
Remus and his companions introduced
themselves as police officers. The man readily
identified himself as Oasis Jung and gestured to
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APPLICATION NOT A BAR TO OBJECTIONS
IN ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION
Bail not a bar to Objections on Illegal Arrest, lack
of or Irregular Preliminary Investigation
An application for bail is not a bar to objections in
illegal arrest or irregularity or lack of preliminary
investigation, provided that he raises them before
entering his plea. The court shall resolve the matter
as early as possible, not later than the start of the
trial on the case. (Sec. 26, Rule 114, ROC, as amended)
Q: Paolo was charged with estafa. Thereafter, he
was arrested by virtue of a warrant of arrest
issued by the RTC. Before arraignment, Paolo
filed an application for bail. Paolo then filed a
motion to quash information on the ground that
it charges more than one offense. RTC denied
bail to Paolo on the ground that an application
for bail and a motion to quash are inconsistent
remedies. Is the RTC correct?
A: NO. There is no inconsistency in filing an
application of an accused for bail and his filing of a
motion to quash. The purpose of bail is to obtain the
provisional liberty of a person charged with an
offense until his conviction while at the same time
securing his appearance at the trial. On the other
hand, a motion to quash an information is the mode
by which an accused assails the validity of a criminal
complaint or information filed against him for
insufficiency on its face in point of law, or for defects
which are apparent on the face of the information.
These two reliefs have objectives which are not
necessarily antithetical to each other. The right of an
accused to seek provisional liberty when charged
with an offense not punishable by death, reclusion
perpetua or life imprisonment, or when charged
with an offense punishable by such penalties but
after due hearing, evidence of his guilt is found not
to be strong, does not preclude his right to assail the
validity of the information charging him with such
offense. It must be conceded, however, that if a
motion to quash a criminal complaint or
information on the ground that the same does not
charge any offense is granted and the case is
523
dismissed and the accused is ordered released, the
petition for bail of an accused may become moot and
academic. (Serapio v. Sandiganbayan, G.R. Nos.
148468, 148769, and 149116, 28 Jan. 2003)
HOLD DEPARTURE ORDER
AND BUREAU OF IMMIGRATION WATCHLIST
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of
the court where the case is pending. (Sec 23, Rule
114, ROC, as amended)
Hold Departure Order (HDO)
It is an order issued by the Secretary of Justice or the
proper RTC commanding the Commissioner of the
Bureau of Immigration to prevent the departure for
abroad of Filipinos and/or aliens named therein by
including them in the Bureau’s Hold Departure List.
(DOJ Dept. Order No. 17)
NOTE: The proper court may issue an HDO or direct
the Department of Foreign Affairs to cancel the
passport of the accused. This is a case of a valid
restriction on a person’s right to travel so that he
may be dealt with in accordance with the law.
(Silverio v. CA, G.R. No. 94284, 08 Apr. 1991)
Who may Issue an HDO
1. The RTC pursuant to SC Circular 39-97; or
2. The RTC, sitting as a Family Court pursuant to
A.M. No. 02-11-12-SC;
NOTE: The DOJ Circular No. 41 granting the DOJ the
power to issue an HDO was held to be
unconstitutional as it is violative of the person’s
right to travel as enshrined in our constitution.
(Genuino v. De Lima, G.R. No. 197930, 17 Apr. 2018)
NOTE: SC Circular 39-97 (19 June 1997) limits the
authority to issue HDO to the RTCs. Considering that
only the RTC is mentioned in said Circular and by
applying the rule on legal hermeneutics of express
mention implied exclusion, courts lower than the
RTC—such as the MeTC, MTC, MTCC and MCTC—
has no authority to issue hold departure orders in
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criminal cases. (A.M. No. 99-9-141-MTCC, 25 Nov.
1999)
Q: In 2010, Acting DOJ Secretary Agra issued DOJ
Circular No. 41 governing the issuance and
implementation of Hold Departure Orders
(HDO), Watchlist Orders (WLO), and Allow
Departure Orders (ADO). In 2011, DOJ Sec. De
Lima issued a WLO against former President
Arroyo on the grounds that criminal charges of
plunder, qualified theft, and violation of the
Omnibus Election Code were filed against them.
Arroyo filed a TRO against the issued HDO and
WLO of DOJ and seeking relief that they be
allowed to travel to seek medical treatment
abroad. The court granted relief sought on a
condition that a bond will be filed, an
undertaking that Arroyo will report to the
Philippine Consulate in the countries they are to
visit and appointing a representative to receive
legal processes. Instead of following the order of
the court, DOJ refused to process the travel
documents. Genuino filed a petition questioning
the constitutionality of the DOJ Circular on the
ground that it infringes the constitutional right
to travel. Is DOJ Circular No. 41 violative of the
constitutional right to travel?
A: YES. DOJ Circular No. 41 was held to be
unconstitutional. It bears reiterating that the power
to issue HDO is inherent to the courts. The courts
may issue an HDO against an accused in a criminal
case so that he may be dealt with in accordance with
law. The point is that the DOJ may not justify its
imposition of restriction on the right to travel of the
subjects of DOJ Circular No. 41 by resorting to an
analogy. Contrary to its claim, it does not have
inherent power to issue HDO, unlike the courts, or
to restrict the right to travel in anyway. It is limited
to the powers expressly granted to it by law and
may not extend the same on its own accord or by
any skewed interpretation of its authority. (Genuino
v. De Lima, G.R. No. 197930, 17 Apr. 2018)
HDO when Issued
HDO shall be issued only in criminal cases within
the exclusive jurisdiction of the RTCs upon proper
motion of the party. (SC Circular 39-97)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
Effect of the Acquittal of the Accused or
Dismissal of the Case to the Hold Departure
Order issued by the RTC
Whenever (a) the accused has been acquitted; or (b)
the case has been dismissed, the judgment of
acquittal or the order of dismissal shall include
therein the cancellation of the HDO issued. The
courts concerned shall furnish the Department of
Foreign Affairs and the Bureau of Immigration with
a copy each of the judgment of acquittal
promulgated or the order of dismissal issued within
24 hours from the time of promulgation or issuance
and likewise through the fastest available means of
transmittal.
Permission to Leave the Country
Permission to leave the country should be filed in
the same courts where the cases are pending
because they are in the best position to judge the
propriety and implication of the same. (Santiago v.
Vasquez, G.R. No. 99289-90, 27 Jan. 1993)
Remedy against HDO or WLO
HDO or WLO may be assailed by:
1. Filing a motion for cancellation; or
2. Filing a Motion to Lift Hold Departure Order.
Allow Departure Order (ADO)
ADO is a directive that allows the traveler to leave
the territorial jurisdiction of the Philippines. This is
issued upon application to the Commissioner of
Immigration and the appropriate government
agency.
Remedy of a Person who is not the same person
whose name appears in the HDO or WLO
Any person who is prevented from leaving the
country because his/her name appears to be the
same as the one that appears in the HDO or WLO
may upon application under oath obtain a
Certification to the effect that said person is not the
same person whose name appears in the issued
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VII. CRIMINAL PROCEDURE

HDO or WLO upon submission of the following NOTE: The time of the pendency of a motion to
requirements: quash or for a bill of particulars or other causes
justifying suspension of the arraignment shall be
1. Affidavit of Denial; excluded in computing the period.
2. Photocopy of the page of the passport bearing
the personal details; XPNs:
3. Latest clearance from the National Bureau of
Investigation; and 1. When an accused is under preventive
4. Clearance from the court or appropriate detention, his case should be raffled within 3
government agency when applicable. days from filing and accused shall be arraigned
within 10 days from receipt by the judge of the
records of the case (R.A. No. 8493, Speedy Trial
G. ARRAIGNMENT AND PLEA Act);
(RULE 116)
3. Where the complainant is about to depart from
the Philippines with no definite date of return,
ARRAIGNMENT the accused should be arraigned without delay;

It is the formal mode of implementing the
constitutional right of the accused to be informed of
the nature of the accusation against him. (People v.
Pangilinan, G.R. No. 171020, 14 Mar. 2007)
Arraignment is a proceeding in a criminal case, the
object of which is to fix the identity of the accused,
to inform him of the charge and to give him an
opportunity to plead, or to obtain from the accused
his answer, in other words, his plea to the
information.
NOTE: Arraignment is an indispensable
requirement of due process.
How Arraignment is Made
The arraignment is made in open court by the judge
or clerk by furnishing the accused with a copy of the
complaint or information, reading the same in the
language or dialect known to him, and asking him
whether he pleads guilty or not guilty. (Sec. 1(a),
Rule 116, ROC, as amended)
4. Cases under R.A. No. 7610 (Child Abuse Act), the
trial shall be commenced within 3 days from
arraignment;
5. Cases under R.A. No. 9165 (Dangerous Drugs
Act); and
6. Cases under SC AO 104-96 i.e., heinous crimes,
violations of the Intellectual Property Rights
law, these cases must be tried continuously
until terminated within 60 days from
commencement of the trial and to be decided
within 30 days from the submission of the case.
Procedure of Arraignment
1. It must be in open court where the complaint or
information has been filed or assigned for trial;
2. By the judge or clerk of court;
3. By furnishing the accused with a copy of the
complaint or information;

Period of Arraignment 4. Reading it in a language or dialect known to the

GR: Arraignment shall be made within 30 days from
the date the court acquires jurisdiction over the
person of the accused. (Sec. 1(g), Rule 116, ROC, as 5.
amended)
accused; (People v. Albert, G.R. No. 114001, 11
Dec. 1995)
Asking accused whether he pleads guilty or not
guilty; (Sec. 1(a), Rule 116, ROC, as amended)
and

525 UNIVERSITY OF SANTO TOMAS

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6. Both arraignment and plea shall be made of
record but failure to enter of record shall not
affect the validity of the proceedings. (Sec. 1(b),
Rule 116, ROC, as amended)
NOTE: The accused must be arraigned before the
court where the complaint or information was filed
or assigned for trial. (Sec. 1(a), Rule 116, ROC, as
amended)
The accused cannot waive the reading of the
information to him and just enter his plea because it
is constitutionally required.
NOTE: Accused is presumed to have been validly
arraigned in the absence of proof to the contrary.
Options of the Accused before Arraignment and
Plea:
1. Bill of particulars;
2. Suspension of arraignment;
3. Motion to Quash; or
4. Challenge the validity of arrest or legality of the
warrant issued or assail the regularity or
question the absence of preliminary
investigation of the charge.
NOTE: The principle that the accused is precluded
from questioning the legality of the arrest after
arraignment is true only if he voluntarily enters his
plea and participates during trial, without
previously invoking his objections thereto. The
arraignment of the accused constitutes a waiver of
the right to preliminary investigation or
reinvestigation.
GR: Judgment is void if accused has not been validly
arraigned.
XPN: If accused went into trial without being
arraigned, the procedural defect was cured. The
active participation in hearing is a clear indication
that the accused is fully aware of the charges against
him. (People v. Pangilinan, G.R. No. 171020, 14 Mar.
2007) In such case, an arraignment may be made
after the case has been submitted for decision.
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
Absence of Arraignment
NOTE: If the accused has not been arraigned, he
cannot be tried in absentia. (Sec. 14(2), Art. III, 1987
Constitution)
Presence of the Accused during Arraignment
The accused must be present at the arraignment and
personally enter his plea. (Sec. 1(b), Rule 116, ROC,
as amended) Counsel cannot enter plea for the
accused.
NOTE: Both arraignment and plea shall be made in
record but failure to do so shall not affect the
validity of the proceedings. (Sec. 1(b), Rule 116, ROC,
as amended)
Presence of the Offended Party during
Arraignment
The private offended party shall be required to
appear in the arraignment for the following
purposes:
1. Plea bargaining;
2. Determination of civil liability; and
3. Other matters requiring his presence. (Sec. 1(f),
Rule 116, ROC, as amended)
NOTE: In case the offended party fails to appear
despite due notice, the court may allow the accused
to enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the
conformity of the trial prosecutor alone. (Sec. 1(f),
Rule 116, ROC, as amended)
Right to Counsel de officio
While the right to be represented by counsel is
immutable, the option to secure the services of
counsel de parte, however, is not. The court may
restrict the accused’s option to retain a counsel de
parte if the accused insists on an attorney he cannot
afford or chooses a counsel who is not a member of
the bar, or when the attorney declines to represent
the accused for a valid reason, such as conflict of
interests. (People v. Servo, G.R. No. 119217, 19 Jan.
2000)
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3. It is made prior to the presentation of evidence
for prosecution; and
4. Confession of guilt was to the offense charged in
the information.
Reception of Evidence in case the Accused
Pleads Guilty
The plea of guilty does not dispense with the
presentation of evidence as it is merely a secondary
basis of the guilt of the accused.
1. For non-capital offenses – the reception of
evidence is merely discretionary on the part of
the court. (Sec. 4, Rule 116, ROC, as amended) If
the information or complaint is sufficient for
the judge to render judgment on a non-capital
offense, he may do so.
2. For capital offense – the reception of evidence
to prove the guilt and degree of culpability of
the accused is mandatory in which case, the
accused may present evidence in his behalf and
the court shall conduct a searching inquiry into
the voluntariness and full comprehension of the
consequences of his plea. (Sec. 3, Rule 116, ROC,
as amended)
A plea of not guilty shall be entered:
1. When the accused so pleaded;
2. When he refuses to plead; (Sec. 1(c), Rule 116,
ROC, as amended) or
3. When he enters a conditional plea of guilty;
(Sec. 1(c), Rule 116, ROC, as amended)
NOTE: A plea of guilt subject to a proviso that a
certain penalty be imposed upon the accused is
equivalent to a plea of not guilty and would,
therefore require a full-blown trial. (People v.
Magat, G.R. No. 130026, 31 May 2000)
4. Where after a plea of guilty but presents
exculpatory circumstances, his plea shall be
deemed withdrawn and a plea of not guilt shall
be entered for him; (Sec. 1(d), Rule 116, ROC, as
amended) or
5. When the plea is indefinite or ambiguous.
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
NOTE: A plea of guilty shall be definite,
unambiguous, and absolute, otherwise, it shall be
considered as a plea of not guilty.
When may Accused Enter a Plea of Guilty to a
Lesser Offense
The accused, with the consent of the offended party
and the prosecutor, may plead guilty to a lesser
offense which is necessarily included in the offense
charged. (Sec. 2, Rule 116, ROC, as amended)
Requisites for a Plea of Guilty to a Lesser Offense
Made at the Arraignment
1. The lesser offense is necessarily included in the
offense charged; and
NOTE: It is necessarily included when some of
the essential elements or ingredients of the
crime charge constitute the lesser offense and
vice versa.
2. The plea must be with the consent of both the
offended party and the prosecutor. (Sec. 2, Rule
116, ROC, as amended) Consent of the offended
party will not be required if said party, despite
due notice, fails to appear during arraignment.
(Riano, 2019)
NOTE: The rule uses the word may in Sec. 2,
Rule 116, denoting an exercise of discretion
upon the trial court on whether to allow the
accused to make such plea. (Daan v.
Sandiganybayan, G.R. Nos. 163972-77, 28 Mar.
2008)
Effect of Plea of Guilty without Consent of
Offended Party and Prosecutor
If accused was convicted, the accused’s subsequent
conviction of the crime charged would not place him
in double jeopardy. (Sec. 7(c), Rule 117, ROC, as
amended)
Q: Private respondent was charged with
violations of “Comprehensive Drug Act of 2002,”
528
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VII. CRIMINAL PROCEDURE
as amended by R.A. No. 10640. He then pleaded
guilty of a lesser offense. Petitioner filed a
petition for certiorari against the trial court
with grave abuse of discretion when it granted
private respondent's proposal to plead guilty to
lesser offenses over the prosecution's vigorous
objection. It insisted that the prosecutor's
consent in plea bargaining was a condition
precedent to a valid plea of guilty to a lesser
offense. Is the consent of the prosecutor
indispensable to a valid plea bargain in drugs
cases?
A: YES. Sec. 2, Rule 116 of the Revised Rules on
Criminal Procedure ordains that with the consent of
the offended party and the prosecutor, plea
bargaining to a lesser offense which is necessarily
included in the offense charged, may be allowed.
Contrary to the position taken by the trial court and
the Court of Appeals, the conformity of the
prosecutor to the proposed plea bargaining in drugs
cases is not optional, nay, to be disregarded. For the
prosecutor has full control of the prosecution of
criminal actions; his duty is to always prosecute the
proper offense, not any lesser or graver one, based
on what the evidence on hand can sustain. As
guardian of the rights of the people, the State files
the criminal action in the name of the People of the
Philippines. (People v. Lascano, G.R No. 250295, 15
Mar. 2021)
Q: May the accused enter a plea of guilty to a
lower offense?
A: YES.
1. During arraignment
a. If the offended party is present, the latter
must consent with the prosecutor to the
plea; and
b. That the lesser offense is necessarily
included in the offense charged.
2. After arraignment but before trial, provided
the following requisites are present:
a. The plea of guilty is withdrawn;
529
b. The plea of not guilty and the withdrawal of
the previous guilty plea shall be made
before trial;
c. The lesser offense is necessarily included in
the offense charged; and
d. The plea must have the consent of the
prosecutor and the offended party. (Sec. 2,
Rule 116, ROC, as amended)
NOTE: No amendment of complaint or
information is necessary. (Sec. 2, Rule 116, ROC,
as amended) A conviction under this plea shall
be equivalent to a conviction of the offense
charged for purposes of double jeopardy.
(People v. Magat, G.R. No. 130026, 31 May 2000)
3. During Pre-trial – Under Sec. 1(a), Rule 118,
Plea-bargaining is one of the matters to be
considered.
4. After prosecution rests – Allowed only when
the prosecution does not have sufficient
evidence to establish guilt for the crime
charged.
Period to Enter Plea of Guilty to a Lesser Offense
GR: Plea bargaining is made during pre-trial stage of
criminal proceedings.
XPN: The law still allows accused to change his plea
thereafter provided that the prosecution does not
have sufficient evidence to establish guilt of the
crime charged. (People v. Valderama, G.R. No. 99287,
23 June 1992)
Q: D was charged with theft of an article worth
P15,000. Upon being arraigned he pleaded not
guilty to the offense charged. Thereafter, before
trial commenced, he asked the court to allow
him to change his plea of not guilty to a plea of
guilty but only to estafa involving P5,000. Can
the court allow D to change his plea? Why?
(2002 BAR)
A: NO. A plea of guilty to a lesser offense may be
allowed if the lesser offense is necessarily included
in the offense charged. (Sec. 2, Rule 116, ROC, as
amended) Estafa involving P5,000 is not necessarily
included in theft of an article worth P15,000.
UNIVERSITY OF SANTO TOMAS
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Plea Bargaining
Plea bargaining in criminal cases is a process
whereby the accused and the prosecution work a
mutually satisfactory disposition of the case subject
to court approval. It usually involves the
defendant’s pleading guilty to a lesser offense or to
only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that
for the graver charge. (Daan v. Sandiganbayan, G.R.
No. 163972-77, 28 Mar. 2008)
NOTE: It is to be noted that the decision to accept or
reject a plea-bargaining agreement is within the
sound discretion of the court subject to certain
requirements of statutes or rules. (Amante-
Descallar v. Judge Ramas, A.M. No. RTJ-08-2142 (OCA-
IPI No. 08-2779-RTJ), 20 Mar. 2009)
A plea of guilty to a lesser offense to which he was
convicted of which was made without the consent of
the prosecution makes the plea bargaining is void,
rendering the judgment by the court void ab initio
and cannot be considered to have attained finality
for the simple reason that a void judgment has no
legality from its inception. (People v. Reafor, G.R. No.
247575, 16 Nov. 2020)
The DOJ Circular No. 27 provision pertaining to
acceptable plea bargain for Section 5 of R.A. No.
9165 did not violate the rule-making authority of
the Court. DOJ Circular No. 27 merely serves as an
internal guideline for prosecutors to observe before
they may give their consent to proposed plea
bargains. (Sayre v. Xenos, G.R. Nos. 244413 & 244415-
16, 18 Feb. 2020)
Duty of the Court after the Accused pleads guilty
to a Capital Offense
When the accused pleads guilty to a capital offense,
the court shall:
1. Conduct a searching inquiry into the:
a. Voluntariness of the plea; and
b. Full comprehension of the consequences of
the plea;
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
2. Require the prosecution to prove guilt and the
precise degree of his culpability; and
3. Ask the accused if he desires to present
evidence in his behalf and allow him to do so if
he desires.
NOTE: The defendant after pleading guilty may
not present evidence as would exonerate him
completely from criminal liability such as proof
of self-defense.
This procedure is mandatory, and a judge who fails
to observe it commits grave abuse of discretion. The
reason for this strictness is to assure that the State
makes no mistake in taking life except the life of the
guilty. (People v. Diaz, G.R. No. 119073, 13 Mar. 1996)
Purpose of the Presentation of Evidence after
the Plea of guilty
To preclude any room for reasonable doubt in the
mind of either the trial court or of the Supreme
Court, on review, as to the possibility that there
might have been misunderstanding on the part of
the accused as to the nature of the charges to which
he pleaded guilty; and to ascertain the
circumstances attendant to the commission of the
crime which justify or require the exercise of
greater or lesser degree of severity in the imposition
of prescribed penalties. (People v. Busa, G.R. No. L-
32047, 25 June 1973)
No Collateral Attack on Plea of guilty
A plea of guilty entered by one who is fully aware of
the direct consequences, including the actual value
of any commitments made to him by the court, the
prosecutor, or his own counsel, must stand.
NOTE: It is only when the consensual character of
the plea is called into question that the validity of a
guilty plea may be impaired.
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1. SEARCHING INQUIRY
Purpose of Searching Inquiry
To determine whether the plea of guilty was made
voluntarily and whether the accused understood
fully the consequence of his plea.
Duty of the Judge in Conducting Searching
Inquiry
The judge must convince himself that:
1. The accused is entering the plea voluntarily and
intelligently;
2. There exists a rational basis for finding of guilt
based on accused’s testimony; and
3. Inform the accused of the exact length of
imprisonment and the certainty that he will
serve it in a national penitentiary.
NOTE: The case of People v. Pastor (G.R. No.
140208, 12 Mar. 2002) provided the following
guidelines on how judges must conduct a
“searching inquiry:”
a. Ascertain from the accused himself (i) how
he was brought into custody of the law; (ii)
whether he had the assistance of a
competent counsel during the custodial
and preliminary investigations; and (iii)
under what conditions he was detained and
interrogated during the investigations;
b. Ask the defense counsel a series of
questions as to whether he had conferred
with, and completely explained to the
accused the meaning and consequences of
a plea of guilty;
c. Elicit information about the personality
profile of the accused;
d. Inform the accused of the exact length of
imprisonment or nature of the penalty
under the law and the certainty that he will
serve such sentence;
531
e. Inquire if the accused knows the crime with
which he is charged and fully explain to him
the elements of the crime;
f. All questions posed to the accused should
be in a language known and understood by
the latter; and
g. The trial judge must satisfy himself that the
accused is truly guilty. (Riano, 2019 citing
People v. Pastor, 379 SCRA 181, 189-190;
People v. Mira. 535 SCRA 543, 551-552)
NOTE: Conduct of a searching inquiry remains the
duty of judges, as they are mandated by the rules to
satisfy themselves that the accused had not been
under coercion or duress; mistaken impressions; or
a misunderstanding of the significance, effects, and
consequences of their guilty plea. (People v.
Jandalani, et al., G.R. No. 188314, 10 Jan. 2011)
PEOPLE v. PAGAL
G.R. No. 241257, 29 Sept. 2020
Essence of Conduct of Searching Inquiry
The essence of the requirement of the conduct of a
searching inquiry is the ascertainment of the
accused’s voluntariness and full comprehension of
the consequences of his plea.
The searching inquiry requirement means more
than informing cursorily the accused that he faces a
jail term but also, the exact length of imprisonment
under the law and the certainty that he will serve
time at the national penitentiary or a penal colony.
The searching inquiry of the trial court must be
focused on: (1) the voluntariness of the plea, and (2)
the full comprehension of the consequences of the
plea.
Not infrequently indeed, an accused pleads guilty in
the hope of lenient treatment, or upon bad advice,
or because of promises of the authorities or parties
of a lighter penalty should he admit guilt or express
remorse. It is the duty of the judge to see to it that
the accused does not labor under these mistaken
impressions.
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A searching inquiry likewise compels the judge to
content himself reasonably that the accused has not
been coerced or placed under a state of duress—and
that his guilty plea has not therefore been given
improvidently—either by actual threats of physical
harm from malevolent quarters or simply because
of his, the judge’s, intimidating robes.
Further, a searching inquiry must not only comply
with the requirements of Sec. 1, par. (a), of Rule 116
but must also expound on the events that actually
took place during the arraignment, the words
spoken and the warnings given, with special
attention to the age of the accused, his educational
attainment and socio-economic status as well as the
manner of his arrest and detention, the provision of
counsel in his behalf during the custodial and
preliminary investigations, and the opportunity of
his defense counsel to confer with him. These
matters are relevant since they serve as trustworthy
indices of his capacity to give a free and informed
plea of guilt. Lastly, the trial court must explain the
essential elements of the crime he was charged with
and its respective penalties and civil liabilities, and
also direct a series of questions to defense counsel
to determine whether he has conferred with the
accused and has completely explained to him the
meaning of a plea of guilty. This formula is
mandatory and absent any showing that it was
followed, a searching inquiry cannot be said to have
been undertaken.
Simply, the requirement ensures that the plea of
guilty was voluntarily made and that the accused
comprehends the severe consequences of his plea.
This means asking a myriad of questions which
would solicit any indication of coercion,
misunderstanding, error, or fraud that may have
influenced the decision of the accused to plead
guilty to a capital offense.
Thus, in every case where the accused enters a plea
of guilty to a capital offense, especially when he is
ignorant with little or no education, the proper and
prudent course to follow is to take such evidence as
are available and necessary in support of the
material allegations of the information, including
the aggravating circumstances therein enumerated,
not only to satisfy the trial judge himself but also to
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
aid the Supreme Court in determining whether the
accused really and truly understood and
comprehended the meaning, full significance, and
consequences of his plea. (People v. Pagal, G.R. No.
241257, 02 Sept. 2020)
2. IMPROVIDENT PLEA
It is a plea without information as to all the
circumstances affecting it. It is based upon a
mistaken assumption or misleading information or
advice. (Black’s Law Dictionary)
Instances of Improvident Plea
1. Plea of guilty was compelled by violence or
intimidation;
2. The accused did not fully understand the
meaning and consequences of his plea;
3. Insufficient information to sustain conviction of
the offense charged;
4. Information does not charge an offense; or
5. Court has no jurisdiction.
Period to Withdraw an Improvident Plea
The court may permit an improvident plea of guilty
to be withdrawn, at any time before the judgment of
conviction becomes final and be substituted by a plea
of not guilty. (Sec. 5, Rule 116, ROC, as amended)
NOTE: The withdrawal of a plea of guilty at any time
before judgment is not a matter of strict right to the
accused but of sound discretion to the trial court.
(Sec. 5, Rule 116, ROC, as amended; People v.
Lambino, G.R. No. L-10875, 28 Apr. 1958) The reason
for this is that trial has already begun and the
withdrawal of the plea will change the theory of the
case and put all past proceedings to waste.
Moreover, at this point, there is a presumption that
the plea was made voluntarily.
Effect of Withdrawal of Improvident Plea
The court shall set aside the judgment of conviction
and re-open the case for new trial.
NOTE: Convictions based on an improvident plea of
guilt are set aside only if such plea is the sole basis
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VII. CRIMINAL PROCEDURE
of the judgment. (People v. Documento, G.R. No.
188706, 17 Mar. 2010)
H. MOTION TO QUASH
(RULE 117)
Purpose of Motion to Quash
The designated purpose of a motion to quash is to
assail the validity of the criminal information for
defects or defenses apparent on the face of the
information. (Galzole y Soriaga v. Briones and
People, G.R. No. 164682, 14 Sept. 2001)
NOTE: A motion to quash based on double jeopardy
or extinction of the criminal action or liability, may,
by their nature, be based on matters outside of the
allegations of the information or complaint. (Riano,
2019)
Period to file Motion to Quash an Information or
Complaint
GR: At any time before entering his plea, the accused
may move to quash the complaint or information.
(Sec. 1, Rule 117, ROC, as amended)
XPNs: Instances where a motion to quash may be
filed after entering plea:
1. The facts charged do not constitute an offense;
2. Lack of jurisdiction over the offense charged;
3. The criminal action or liability has been
extinguished; and
4. Double Jeopardy. (Sec. 9, Rule 117, ROC, as
amended)
NOTE: These grounds may be invoked at any stage
of the proceedings.
Who may File
The right to file a motion to quash belongs only to
the accused. The court is not authorized to motu
proprio initiate a motion to quash by issuing an
order requiring an explanation why the information
should not be quashed. The court, though, has the
533
discretion to dismiss the case if the information is
not sufficient or on any ground provided by law, or
to dismiss the information for a different one.
Form and Contents of Motion to Quash
The motion to quash shall be:
1. In writing;
2. Signed by the accused or his counsel; and
3. Specify distinctly the factual and legal grounds
on which it is based. (Sec. 2, Rule 117, ROC, as
amended)
Thus, there can be no oral motion to quash.
NOTE: The court shall not consider any other
ground other than those specifically stated in the
motion to quash except lack of jurisdiction over the
offense charged and when the information does not
charge an offense. (Omnibus Motion Rule, Sec. 2, Rule
117, ROC, as amended)
1. GROUNDS
(F-O-P-A-C-M-E-L-D)
1. The Facts charged do not constitute an offense;
2. Lack of jurisdiction over the Offense charged;
3. Lack of jurisdiction over the Person of the
accused;
4. Lack of Authority of the officer to file
information;
5. When the complaint or information does not
Conform substantially to the prescribed form;
6. Multiplicity of offenses charged;
7. Extinction of criminal action or liability;
8. The complaint or information contains
averments, which if true, would constitute a
Legal excuse or justification; or
9. Double Jeopardy
NOTE: The enumeration is exclusive.
Q: The information against Roger Alindogan for
the crime of acts of lasciviousness under Art.
336 of the Revised Penal Code avers:
“That on or about 10:30 o’clock in the
evening of 1 Feb. 2010 at Barangay
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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