CRIMINAL PROCEDURE

Criminal Jurisdiction – power of the 2. Determined by the law in force at

State to try and punish a person for a the time of the institution of the
violation of its penal laws. criminal action. ONCE VESTED, IT
CANNOT BE WITHDRAWN BY:
REQUISITES FOR A VALID EXERCISE OF a) subsequent valid amendment
CRIMINAL JURISDICTION: of the information; or
1. The offense, by virtue of the b) a subsequent statutory
imposable penalty OR its nature, amendment of the rules of
is one which the court is by law jurisdiction, UNLESS the
authorized to take cognizance of, amendatory law provides
(jurisdiction over the SUBJECT otherwise.
MATTER).
2. The offense must have been
committed within its territorial RULE 110
jurisdiction, (jurisdiction over PROSECUTION OF OFFENSES
the TERRITORY).
3. The person charged with the Section 1. Institution of criminal
offense must have been brought actions.
to its presence for trial, forcibly
by warrant of arrest or upon his For offenses where a preliminary
voluntary submission to the investigation is required - by filing the
court, (jurisdiction over the complaint with the proper officer for the
PERSON OF THE ACCUSED). purpose of conducting the requisite
preliminary investigation.
JURISDICTION JURISDICTION
OVER THE OVER THE PERSON Preliminary investigation is REQUIRED for
SUBJECT MATTER OF THE ACCUSED offenses where the penalty prescribed by
Derived from the May be acquired by law is at least 4 years, 2 months and 1day
law. It can never be consent of the without regard to fine (Rule 112, Sec. 1
acquired solely by accused or by waiver Par.2).
consent of the of objections.
accused. For all other offenses - by filing the
Objection that the If he fails to make his complaint or information directly with
court has no objection in time, he the Municipal Trial Courts and Municipal
jurisdiction of the will be deemed to Circuit Trial Courts, or the complaint with
subject matter may have waived it. the office of the prosecutor.
be made at any stage
of the proceeding, DOES NOT APPLY to offenses which are
and the right to subject to summary procedure.
make such objection
is never waived. Effect of institution of the criminal
action:
DETERMINATION OF CRIMINAL It interrupts the running of the period of
JURISDICTION: prescription of the offense charged unless
1. Determined by the allegations in otherwise provided by special laws.
the complaint or information not
by the results of proof or by the
trial court’s appreciation of the
evidence presented.

Remedies of the offended party if the
prosecutor refuses to file an
information:
1. file an action for mandamus, in
case of grave abuse of discretion;
2. lodge a new complaint before the
court having jurisdiction over the
offense;
3. take up the matter with the
Secretary of Justice in
accordance with the Rev.
Administrative Code;
4. institute an administrative
charges against the erring
prosecutor; and
5. file criminal action against the
prosecutor with the
corresponding civil action for
damages.
May Injunction Issue to Restrain
Criminal Prosecution?
GENERAL RULE: Criminal prosecutions
may NOT be restrained or stayed by
injunction, preliminary or final. The
reason being, public interest requires
that criminal acts be immediately
investigated and prosecuted for the
protection of the society (Domingo vs.
Sandiganbayan, 322 SCRA 655).
EXCEPTIONS:
1. To afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a prejudicial question
which is subjudice;
4. When the acts of the officer are
without or in excess of authority;
5. When the prosecution is under an
invalid law, ordinance or regulation;
6. When double jeopardy is clearly
apparent;
7. When the court had no jurisdiction
over the offense;
8. When it is a case of persecution
rather than prosecution;
9. When the charges are manifestly
false and motivated by lust for
vengeance; and
10. When there is clearly no prima facie
case against the accused and a
motion to quash on that ground has
been denied.
Section 2. Form of the complaint or
information.
FORM
1. In writing;
2. In the name of the People of the
Philippines; and
3. Against all persons who appear to
be responsible for the offense
involved.
Section 3. Complaint defined.
A Complaint is:
1. a sworn written statement;
2. charging a person with an
offense;
3. subscribed by the offended party,
any peace officer or other public
officer charged with the
enforcement of the law violated.
The complaint mentioned in this section
refers to one filed in court for the
commencement of a criminal prosecution
for violation of a crime, usually
cognizable by municipal trial courts as
well as to a complaint filed by an
offended party in private crimes or those
which cannot be prosecuted de officio.
REQUISITES OF A COMPLAINT:
1. it must be in writing and under
oath;
2. it must be in the name of the
People of the Philippines;
3. it must charge a person with an
offense; and
4. it must be subscribed by the
offended party, by any peace
officer or public officer charged
with the enforcement of the law
violated.
PERSONS WHO CAN FILE A COMPLAINT
1. Offended party
2. Any peace officer
3. Other public officer charged with
the enforcement of the law
violated
 prosecuted under the direction and
ex. Internal Revenue Officer for control of the prosecutor.
violation of the NIRC, custom
agents with respect to violations A PRIVATE PROSECUTOR may be
of the Tariff and Customs Code authorized to prosecute a criminal action
subject to the following conditions:
Section 4. Information defined. 1. the public prosecutor has a heavy
work schedule, or there is no
An Information is: public prosecutor assigned in the
1. an accusation in writing; province or city;
2. charging a person with an 2. the private prosecutor is
offense; authorized IN WRITING by the
3. subscribed by the prosecutor and Regional State Prosecutor (RSP),
filed with the court. Provincial or City Prosecutor;
3. the authority of the private
REQUISITES OF AN INFORMATION prosecutor must be approved by
1. it must be in writing; the court;
2. it must charge a person with an 4. the private prosecutor shall
offense; continue to prosecute the case
3. it must be subscribed by the until the end of the trial unless
fiscal; and the authority is withdrawn or
4. it must be filed in court. otherwise revoked by the RSP,
Provincial or City Prosecutor; and
COMPLAINT INFORMATION 5. In case of the withdrawal or
Subscribed by the Subscribed by the revocation of the authority of
offended party, any fiscal the private prosecutor, the same
peace officer or other (indispensable must be approved by court.
officer charged with requirement) (Memo Circ. No. 25, April 26,
the enforcement of 2002, Regarding Amendment to
the law violated Sec. 5, Rule 110)
it may be filed either it is filed with the
in court or in the court In appeals before the CA and the SC, it is
prosecutor’s office only the Solicitor General that is
must be made under need not be under authorized to bring and defend actions in
oath oath behalf of the People of the Philippines
(People vs. Nano, 205 SCRA 155).
 Prosecution in the RTC are
alwayscommenced by information, EXCEPT: In all cases elevated to the Sandiganbayan
1. in certain crimes against chastity and from the Sandiganbayan to the SC,
(concubinage, adultery, the Office of the Ombudsman, through its
seduction, abduction, acts of Special Prosecutor shall represent the
lasciviousness); and People of the Philippines, EXCEPT in cases
2. defamations imputing any of the filed pursuant to E.O. Nos. 1, 2, 14 and
aforesaid offenses wherein a 14-A,
sworn written complaint is issued in 1986 (Sec. 4, RA 8249).
required in accordance with
section 5 of this Rule. PROSECUTION OF CRIMES AGAINST
CHASTITY
Section 5. Who must prosecute
criminal actions. WHO MAY PROSECUTE
FULL DISCRETION AND CONTROL OF 1. Concubinage and adultery – only by
THE PROSECUTOR the offended spouse who should
All criminal actions commenced by a
complaint or information shall be

have the status, capacity, and legal
representation at the time of filing
of the complaint, regardless of age;
2. Seduction, Abduction and Acts of
Lasciviousness – prosecuted
exclusively and successively by the
following persons in this order:
a) by the offended woman
b) by the parents, grandparents or
legal/judicial guardians in that
successive order
c) by the State in the exercise of the
right of parens patriae, when the
offended party dies or becomes
incapacitated before she could
file the complaint and she has no
known parents, grandparents or
guardian.
3. A defamation imputing to a person
any of the foregoing crimes of
concubinage, adultery, seduction,
abduction, rape or acts of
lasciviousness can be prosecuted only
by the party or parties defamed
(Article 360, last par., Revised Penal
Code).
If the offended party is of legal age AND
does not suffer from physical or mental
disability, she alone can file the
complaint to the exclusion of all others.
WHO CAN GIVE PARDON
1. Concubinage and adultery - only the
offended spouse, not otherwise
incapacitated, can validly extend the
pardon or consent contemplated
therein.
2. Seduction, abduction, and acts of
lasciviousness –
a) the offended minor, if with
sufficient discretion, can validly
pardon the accused by herself if
she has no parents or where the
accused is her own father and her
mother is dead;
b) the parents, grandparents or
guardian of the offended minor,
in that order, CANNOT extend a
valid pardon in said crimes
WITHOUT the conformity of the
offended party, even if the latter
is a minor;
c) if the offended woman is of age
and not otherwise incapacitated,
only she can extend a valid
pardon.
The pardon refers to pardon BEFORE filing
of the criminal complaint in court. Pardon
effected after the filing of the complaint
in court does NOT prohibit the
continuance of the prosecution of the
offense EXCEPT in case of marriage
between the offender and the offended
party.
PARDON vs. CONSENT
Consent refers to future acts, while
pardon refers to past acts of adultery.
The importance of this distinction is that
consent, in order to absolve the accused
from liability, is sufficient even if granted
only to the offending spouse, whereas
pardon must be extended to both
offenders
The SUBSEQUENT MARRIAGE between the
offended party and the accused
extinguishes the criminal liability of the
latter, together with that of the co-
principals, accomplices and accessories.
EXCEPT:
1. where the marriage was invalid or
contracted in bad faith in order to
escape criminal liability,
2. in “private libel”
3. in multiple rape, insofar as the
other accused in the other acts
of rape respectively committed
by them are concerned.
 The ACQUITTAL OR DEATH of
one of the accused in the crime of
adultery does not bar the prosecution
of the other accused (People vs.
Topiño, et al.,
35 Phil. 901). HOWEVER, the death of the
offended spouse before the filing of the
complaint for adultery bars further
prosecution, BUT if the offended spouse
died after the filing of the corresponding
complaint, his death will NOT prevent the
proceeding from continuing to its
ultimate conclusion.

 DESISTANCE of complainant
does not bar criminal prosecution but
it operates as waiver of the right to
pursue civil indemnity.
Section 6. Sufficiency of complaint or
information.
CONTENTS OF A VALID COMPLAINT OR
INFORMATION
1. Name of the accused, including
any appellation or nickname
An error in the name of the
accused is not reversible as long
as his identity is sufficiently
established and this defect is
curable at any stage of the
proceedings as the insertion of
the real name of the accused is
merely a matter of form.
2. The designation of the offense
3. The acts or omissions complained
of as constituting the offense
4. The name of the offended party
5. The approximate time of the
commission of the offense
6. The place wherein the offense
was committed
PURPOSE OF THE RULE
1. To inform the accused of the
nature and cause of accusation
against him.
2. To notify the defendant of the
criminal acts imputed to him so
that he can duly prepare his
defense.
Substantial defect in the information
cannot be cured by evidence that would
jeopardize the accused’s right to be
informed of the true nature of the offense
he is being charged with
Section 7. Name of the accused.
PURPOSE
The manifest intent of the provision is to
make a specific identification of the
person to whom the commission of an
offense is being imputed.
Section 8. Designation of the offense.
The information or complaint must state
or designate the following whenever
possible:
1. The designation of the offense
given by the statute.
2. The statement of the acts or
omissions constituting the
offense, in ordinary, concise and
particular words.
3. The specific qualifying and
aggravating circumstances must
be stated in ordinary and concise
language.
The qualifying and aggravating
circumstances cannot be appreciated
even if proved UNLESS alleged in the
information.
In case of allegation of aggravating
circumstance of HABITUAL
DELINQUENCY, it should not be generally
averred. The information must specify
the requisite data regarding:
1. the commission of the crimes;
2. the last conviction or release;
3. the other previous conviction or
release of the accused.
ALLEGATIONS PREVAIL OVER
DESIGNATION OF THE OFFENSE IN THE
INFORMATION
It is not the designation of the offense in
the complaint or information that is
controlling (People vs. Samillano, 56
SCRA 573); the facts alleged therein and
not its title determine the nature of the
crime (People vs. Magdowa, 73 Phil. 512).
The accused may be convicted of a crime
more serious than that named in the title
or preliminary part if such crime is
covered by the facts alleged in the body
of the information and its commission is
established by evidence (Buhat vs. Court
of Appeals, 265 SCRA 701).

Limitation on the rule that an accused
may be convicted of a crime which is
more serious than that named in the title
so long as the facts alleged the more
serious offense:
An accused could not be convicted under
one act when he is charged with a
violation of another if the change from
one statute to the other involves:
a) a change in the theory of the
trial;
b) requires of the defendant a
different defense; or
c) surprises the accused in any way
(U.S. vs. Panlilio, 28 Phil. 603)
. the offense constitutes an essential
Section 9. Cause of the accusation.
PURPOSE
1. to enable the court to pronounce
proper judgment;
2. to furnish the accused with such
a description of the charge as to
enable him to make a defense;
3. as a protection against further
prosecution for the same cause.
RULE ON NEGATIVE AVERMENTS
GENERAL RULE: Where the statute
penalizes generally the acts therein
defined and is intended to apply to all
persons indiscriminately, the information
is sufficient even if does not allege that
the accused falls within the excepted
situation, for then the complete
definition of the offense is entirely
separable from the exceptions and can be
made without reference to the latter. In
this case, the exception is a matter of
defense which the accused has to prove.
EXCEPTION: Where the statute alleged to
have been violated applies only to a
specific class of persons and to special
conditions, the information must allege
facts establishing that the accused falls
within the specific class affected and not
those affected from the coverage of law.
Where negative averment is an essential
element of the crime, it must be proved.
Section 10. Place of commission of the
offense
PURPOSE
To show territorial jurisdiction.
Section 11. Date of commission of the
offense
GENERAL RULE:
It is NOT required that the complaint or
information state with particularity the
PLACE where the crime was committed
and the DATE of the commission of the
crime.
EXCEPTION:
If the PLACE/DATE of the commission of
element of the offense.
Section 12. Name of the offended party
GENERAL RULE: The offended party must
be designated by name, nickname, any
other appellation or by fictitious name.
EXCEPTION: In crimes against property,
the description of the property must
supplement the allegation that the owner
is unknown.
Section 13. Duplicity of offense.
There is duplicity when the complaint or
information charges 2 or more DISTINCT
or DIFFERENT offenses.
GENERAL RULE:
A complaint or information must charge
only one offense.
EXCEPTIONS:
1. Complex crimes
2. Special Complex crimes
3. Continuous crimes or delicto
continuado
4. Crimes of which another offense
is an ingredient
Should there be duplicity of offense in the
information, the accused must move for
the quashal of the same BEFORE
arraignment, otherwise, he is deemed to AMENDMENT SUBSTITUTION OF
have waived the objection and maybe INFORMATION OR
found guilty of as many offenses as those COMPLAINT
charged and proved during the trial. May involve either Involves substantial
formal or substantial change from the
Section. 14. Amendment or changes original charge
substitution. Amendment before Substitution of
the plea has been information must be
KINDS OF AMENDMENT entered can be with leave of court
1. BEFORE THE PLEA – covers both effected without as the original
substantial and formal leave of court. information has to be
amendment, WITHOUT leave of dismissed.
court. Amendment is only Another preliminary
2. AFTER THE PLEA – covers only as to form, there is investigation is
formal amendment provided: no need for another entailed and the
a) leave of court is obtained preliminary accused has to plead
b) such amendment is not investigation and the anew to the new
prejudicial to the rights of retaking of the plea information
the accused. of the accused.
EXCEPT when a fact supervenes
which changes the nature of the An amended Requires or
crime charged in the information information refers to presupposes that the
or upgrades it to a higher crime, the same offense new information
in which case, there is a need for charged in the involves a different
another arraignment of the original information offense which does
accused under the amended or to an offense not include or is not
information. which necessarily necessarily included
includes or is in the original
An amendment is only in form where it necessarily included charge, hence the
neither affects nor alters the nature of in the original accused cannot claim
the offense charged OR where the charge charge, hence double jeopardy.
does not deprive the accused of a fair substantial
opportunity to present his defense OR amendments to the
where it does not involve a change in the information after the
basic theory of the prosecution. plea has been taken
cannot be made over
Substitution – If it appears at anytime the objection of the
before judgment that a mistake has been accused, for if the
made in charging the proper offense, the original information
court shall dismiss the original complaint would be withdrawn,
or information upon the filing of a new the accused could
one charging the proper offense, provided invoke double
the accused shall not be placed in double jeopardy.
jeopardy.
VARIANCE BETWEEN INDICTMENT AND
Limitation to the rule on substitution: PROOF (Situations Contemplated)
1. No judgment has yet been 1. When the offense proved is less
rendered. serious than, and is necessarily
2. The accused cannot be convicted included in, the offense charged,
of the offense charged or of any in which case the defendant shall
other offense necessarily be convicted of the offense
included therein. proved.
3. The accused would not be placed 2. When the offense proved is more
in double jeopardy. serious than and includes the

offense charged, in which case
the defendant shall be convicted
of the offense charged.
3. When the offense proved is
neither included in, nor does it
include, the offense charged and
is different therefrom, in which
case the court should dismiss the
action and order the filing of a
new information charging the
proper offense.
The third situation set forth above is
substitution of information under Section
14, Rule 110.
Section 15. Place where action is to be
instituted.
PURPOSE
The purpose being not to compel the
defendant to move to, and appear in a
different court from that of the territory
where the crime was committed, as it
would cause him great inconvenience in
looking for his witnesses and other
evidence in another place (Beltran vs.
Ramos, 96 Phil. 149).
VENUE IS JURISDICTIONAL
Venue is jurisdictional as the court has no
jurisdiction to try an offense committed
outside its territorial jurisdiction. It
cannot be waived, or changed by
agreement of the parties, or by the
consent of the defendant.
GENERAL RULE: Subject to existing laws,
in all criminal prosecutions, the action
must be instituted and tried in the courts
of the municipality or territory where the
offense was committed or any of its
essential ingredients occurred.
EXCEPTIONS TO THE RULE OF VENUE:
1. Felonies under Art. 2 of the
Revised Penal Code
 Shall be cognizable by the
proper court where the
criminal action was first
filed.
2. Complex Crimes
 Where the crime charged is a
complex crime, the RTC of
any province in which any one
of the essential elements of
such complex crime had been
committed has jurisdiction to
take cognizance of the
offense.
3. Continuing Offense - is one
where the elements of which
occur in several places, (unlike a
LOCAL OFFENSE - one which is
fully consummated in one place)
 The venue is in the place
where one of its essential
elements was consummated.
4. Piracy – The venue of piracy,
unlike all other crimes, has no
territorial limits.
5. Libel – The action may be
instituted at the election of the
offended or suing party in the
province or city:
a) where the libelous article is
printed and first published;
b) if one of the offended parties
is a private individual, where
said private individual
actually resides at the time of
the commission of the
offense;
c) if the offended party is a
public official, where the
latter holds office at the time
of the commission of the
offense.
6. In exceptional circumstances – to
ensure a fair trial and impartial
inquiry. The SC shall have the
power to order a change of venue
or place of trial to avoid
miscarriage of justice (Section
5[4], Article VIII, 1987
Constitution).
Section 16. Intervention of the
offended party in criminal action.
GENERAL RULE: Offended party has the
right to intervene by counsel in the
prosecution of the criminal action, where
the civil action for recovery of

civil liability is instituted in the criminal
action pursuant to Rule 111.
EXCEPTIONS:
1. Where from the nature of the
crime and the law defining and
punishing it, NO civil liability
arises in favor of the offended
party; and
2. Where the offended party has
waived his right to civil indemnity
OR has expressly reserved his
right to institute a civil action OR
has already instituted said action.
RULE 111
PROSECUTION OF CIVIL ACTIONS
Section 1. Institution of criminal and
civil actions.
GENERAL RULE:
When a criminal action is instituted, the
civil action for the recovery of civil
liability arising from the offense shall be
deemed instituted with the criminal
action.
EXCEPTIONS:
1. when the offended party WAIVES
the civil action
2. when the offended party
RESERVES his right to institute a
separate civil action
3. when offended party INSTITUTES
A CIVIL ACTION PRIOR to the
criminal action.
WHEN RESERVATION SHALL BE MADE
1. before the prosecution starts to
present its evidence and
2. under circumstances affording
the offended party to a
reasonable opportunity to make
such reservation.
 ONLY the civil liability arising
fromthe crime charged as a felony is
now deemed instituted. Civil liability
arising from other sources of obligations
are no longer deemed instituted like
those under Article 32, 33, 34 and 2176
of the
Civil Code which can be prosecuted even
without reservation.
 In BP 22 cases, no reservation
to file the civil action separately shall
be allowed.
RULES ON FILING FEES OF CIVIL ACTION
DEEMED INSTITUTED WITH THE
CRIMINAL ACTION
1. NO filing fees are required for
amounts of ACTUAL DAMAGES,
EXCEPT with respect to criminal
actions for violation of BP 22, in
which case, the offended party
shall pay in full the filing fees
based on the face value of the
check as the actual damages;
2. Damages other than actual
(moral, exemplary and other
damages) if specified in the
complaint or information, the
corresponding filing fees shall be
paid, otherwise the court will not
acquire jurisdiction over such
damages;
3. Where moral, exemplary and
other damages are NOT specified
in the complaint or information,
the grant and amount thereof are
left to the sound discretion of the
trial court, the corresponding
filing fees need not be paid and
shall simply constitute a first lien
on the judgment.
 Counterclaims, cross-claims,
third party complaints are no longer
allowed in a criminal proceeding. Any
claim which could have been the
subject thereof may be litigated in a
separate civil action.
Section 2. When separate civil action is
suspended.
PRIMACY OF CRIMINAL ACTION OVER
CIVIL ACTION
1. After the filing of the criminal
action, the civil action which has
been reserved CANNOT be
instituted until final judgment
has been rendered in the criminal
action.

2. If the civil action is instituted
BEFORE the filing of the criminal
action and the criminal action is
subsequently commenced, the
pending civil action shall be
suspended until final judgment in
the criminal action has been
rendered.
EXCEPTIONS:
a) In cases of independent civil
actions based upon Arts. 32, 33,
34 and 2176 of the Civil Code;
b) In cases where the civil action
presents a prejudicial question;
c) In cases where the civil action is
consolidated with the criminal
action; and
d) Where the civil action is not one
intended to enforce the civil
liability arising from the offense.
ACQUITTAL IN A CRIMINAL CASE DOES
NOT BAR THE FILING OF THE CIVIL CASE
WHERE:
1. the acquittal is based on
reasonable doubt, if the civil case
has been reserved
2. the decision contains a PURPOSE
declaration that the liability of
the accused is not criminal but
only civil in nature and
3. the civil liability is not derived
from or based on the criminal act
of which the accused is acquitted
(Sapiera vs. Court of Appeals,
314 SCRA 370).
 Extinction of the penal action
do
esnot carry with it the extinction of the
civil action, UNLESS the extinction
proceeds from a declaration in a final
judgment that the fact from which the
civil liability might arise did not exist.
 The extinction of the civil
liability refers exclusively to civil liability
arising from crime; whereas, the civil
liability for the same act considered as
a quasi- delict is not extinguished even
by a declaration in the criminal case
that the criminal act charged has not
happened or has not been committed by
the accused.
 Where the criminal case
wa
sdismissed before trial because the
offended party executed an affidavit
of desistance, the civil action thereof
is similarly dismissed.
Section 3. When civil action may
proceed independently.
 The institution of an independent
civil action against the offender under
Articles 32, 33, 34 and 2176 of the Civil
Code may proceed independently of the
criminal case and at the same time
without suspension of either proceeding.
 Recovery of civil liability under
Articles 32, 33, 34 and 2176 of the Civil
Code arising from the same act or
omission may be prosecuted separately
even without a reservation. The
reservation and waiver herein refers
only to the civil action for the recovery
of civil liability arising from the offense
charged (DMPI Employees Credit Coop
vs. Velez, G.R. No. 129282, Nov. 29,
2001).
To prevent the offended party from
recovering damages twice for the same
act or omission.
Section 4. Effect of death on civil
actions.
AFTER arraignment and during the
pendency of the criminal action -
extinguishes the civil liability arising from
the delict.
BEFORE arraignment - the case shall be
DSMISSED without prejudice to any civil
action the offended party may file against
the estate of the deceased.
 However, the independent
civil action instituted under Section 3 of
this Rule or which thereafter is
instituted to enforce liability arising
from other sources of obligation may be
continued against the estate or
legal representative of the accused
after

proper substitution or against said estate,
as the case may be.
Section 7. Elements of prejudicial
question.
Prejudicial Question - that which arises
in a case, the resolution of which is the
logical antecedent of the issue involved
therein, and the cognizance of which
pertains to another tribunal. It must be
determinative of the case before the
court but the jurisdiction to try and
resolve the question must be lodged in
another court or tribunal.
Rationale: to avoid two conflicting
decisions.
ELEMENTS OF A PREJUDICIAL
QUESTION
1. The civil action must be
instituted prior to the criminal
action.
2. The civil action involves an issue
similar or intimately related to
the issue raised in the criminal
action.
3. The resolution of such issue
determines whether or not the
criminal action may proceed.
WHERE TO FILE PETITION FOR
SUSPENSION BY REASON OF
PREJUDICIAL QUESTION
1. Office of the prosecutor; or
2. court conducting the preliminary
investigation; or
3. court where the criminal action
has been filed for trial at any
time before the prosecution
rests.
RULE 112
PRELIMINARY INVESTIGATION
Section 1. Preliminary Investigation
defined; when required.
Preliminary Investigation - is an inquiry
or proceeding to determine whether
there exists sufficient ground to engender
a well-founded belief that a
crime has been committed and that the
respondent is probably guilty thereof, and
should be held for trial. (Sec. 1, Rule 112)
Preliminary Investigation is required to be
conducted BEFORE the filing of a
complaint or information for an offense
where the penalty prescribed by law is at
least 4 years, 2 months and 1 day without
regard to the fine.
There is NO right of preliminary
investigation under Section 7, Rule 112
when a person is LAWFULLY arrested
unless there is a waiver of the provisions
of Article 125 of the Revised Penal Code.
HOWEVER, the accused can ask for
Preliminary Investigation in the following
cases:
1. if a person is arrested, he can ask
for preliminary investigation
BEFORE the filing of the
complaint/information BUT he
must sign a waiver in accordance
with Article 125, RPC.
2. AFTER the filing of the
information/complaint, the
accused may, within 5 days from
the time he learns of its filing ask
for preliminary investigation.
PURPOSES
1. to determine whether a crime has
been committed and whether
there is probable cause to believe
that the accused is guilty thereof;
2. to preserve evidence and keep
the witnesses within the control
of the State;
3. to determine the amount of bail,
if the offense is bailable.
PRELIMINARY INVESTIGATION:
PERSONAL STATUTORY RIGHT
The right to preliminary investigation is a
personal right covered by statute and may
be waived expressly or by implication.
Absence of preliminary investigation does
not affect the jurisdiction of the
 Section 3. Procedure
court or invalidate the information if no
objection was raised by the accused.
Filing of the complaint
REMEDIES OF THE ACCUSED IF THERE accompanied by the affidavits
WAS NO PRELIMINARY INVESTIGATION and supporting documents.
1. Refuse to enter a plea upon
arraignment and object to
further proceedings upon such Within 10 days after the filing, the
ground investigating officer shall either
2. Insist on a preliminary dismiss or issue subpoena.
investigation
3. File a certiorari, if refused
4. Raise lack of preliminary If subpoena is issued,
investigation as error on appeal respondent shall submit a
counter-affidavit and other
5. File for prohibition
supporting documents within
10 days from receipt thereof.
As preliminary investigation is NOT a part
of the trial, the dismissal of the case by
the investigator will not constitute double
Hearing (optional). It shall be held
jeopardy and will not bar the filing of
within 10 days from submission of
another complaint for the same offense, counter-affidavits or from the
but if re-filed, the accused is entitled to expiration of the period of their
another preliminary investigation (U.S. submission.
vs. Marfori, 35 Phil. 666).

Section 2. Officers authorized to

Resolution of
conduct preliminary investigation. investigating prosecutor

PERSONS AUTHORIZED TO CONDUCT A If respondent cannot be subpoenaed, or if

PRELIMINARY INVESTIGATION subpoenaed but does not submit his
1. Provincial or city fiscal and their counter-affidavit within 10 days,
assistants investigating officer shall resolve the
2. Judges of the MTC and MCTC complaint based on the evidence
3. National and regional state presented by the complainant.
prosecutors
4. Such other officers as may be RIGHTS OF RESPONDENT IN A
authorized by law such as: the PRELIMINARY INVESTIGATION
COMELEC, Ombudsman and PCGG 1. to submit counter-affidavits
2. to examine evidence submitted
by the complainant
3. to be present in the clarificatory
hearing.

The Rules do not require the presence of
the respondent in the Preliminary
Investigation, what is required is that he
be given the opportunity to controvert
the evidence of the complainant by
submitting counter-affidavits.
Section 6. When warrant of arrest may
issue
Probable Cause - presupposes a
reasonable ground for belief in the
existence of facts warranting the
proceedings complained of;
- an apparent state
of facts found to exist upon reasonable
inquiry which would induce a reasonably
intelligent and prudent man to believe
that the accused person had committed
the crime charged.
If the judge finds probable cause, he shall
issue a warrant of arrest, or a
commitment order if the accused had
already been arrested and hold him for
trial. If the judge is satisfied that there is
no necessity for placing the accused
under custody, he may issue summons
instead of warrant of arrest.
The RTC judge need NOT personally
examine the complaint and witnesses in
the determination of probable cause for
the issuance of the warrant of arrest. He
is only required to:
1. Personally evaluate the report
and the supporting documents
submitted during the preliminary
investigation by the fiscal; and
2. On the basis thereof he may:
a) Dismiss;
b) Issue warrant; or
c) Require further affidavits.
INSTANCES WHEN MTC MAY CONDUCT
PRELIMINARY INVESTIGATION:
1. cases cognizable by the RTC may
be filed with the MTC for
preliminary investigation;
2. cases cognizable by the MTC
because it is an offense where the
penalty prescribed by law is at
least four (4) years, two (2)
months and one (1) day without
regard to the fine.
 In either situation, the MTC
is authorized to issue a warrant of arrest
if there is necessity of placing the
respondent under immediate custody,
in order not to frustrate the ends of
justice.
CONDITIONS BEFORE THE
INVESTIGATING MUNICIPAL TRIAL JUDGE
CAN ISSUE A WARRANT OF
ARREST (Herrera, p. 282)
1. Have examined in writing and
under oath the complainant and
his witnesses by searching
questions and answers; searching
questions and answers – such
questions as may have the
tendency to show the commission
of the crime and the perpetrator
thereof;
2. Be satisfied that a probable cause
exists; and
3. That there is a need to place the
respondent under immediate
custody in order not to frustrate
the ends of justice.
 If the MTC judge found
probablecause but did not believe that
the aforesaid conditions were met, he
cannot be compelled by mandamus to
issue the same.
REMEDY: The provincial fiscal, if he
believes that the accused should be
immediately placed in custody, may file
the corresponding information so that the
RTC may issue the necessary warrant of
arrest (Samulde vs. Salvani, Jr., G.R. No.
78606, Sept. 26, 1988).
While the judge may rely on the fiscal’s
certification thereof, the same is NOT
conclusive on him as the issuance of said
warrant calls for the exercise of judicial
discretion and, for that purpose, the
judge may require the submission of
affidavits of witnesses to aid him in
arriving at the proper conclusion, OR he
may require the fiscal to conduct further
preliminary investigation or
reinvestigation.

INSTANCES WHEN WARRANT OF ARREST
NOT NECESSARY
1. if the accused is already under
detention;
2. if the complaint or information
was filed after the accused was
lawfully arrested without
warrant;
3. if the offense is punishable by
fine only.
Section 7. When accused lawfully
arrested without warrant.
TWO SITUATIONS CONTEMPLATED
UNDER THIS RULE:
1. When a person is lawfully
arrested without a warrant for an
offense requiring a preliminary
investigation (sec. 1, Rule 112)
and no complaint or information
has yet been filed, he may ask for
a preliminary investigation by
signing a waiver of the provisions
of Art. 125 of the RPC in the
presence of his counsel.
2. When the complaint or
information was filed without
preliminary investigation, the
accused may, within 5 days from
the time he learns of the filing of
the information, ask for a
preliminary investigation with
the same right to adduce
evidence in his favor in the
manner prescribed in this Rule.
The 5-day period is MANDATORY, failure
to file the motion within the said period
amounts to waiver of the right to ask for
preliminary investigation.
Where the information was amended
without a new preliminary investigation
having been conducted, the 5-day period
is computed from the time the accused
learns of the filing of said amended
information.
Where the trial court has granted a
motion for reinvestigation, it must hold in
abeyance the arraignment and trial of
the accused until the prosecutor shall
have conducted and made a report on the
result of such reinvestigation.
The right to bail pending Preliminary
Investigation under Section 7, Rule 112, a
person lawfully arrested may post bail
before the filing of the information or
even after its filing without waiving his
right to preliminary investigation,
provided that he asks for a preliminary
investigation by the proper officer within
the period fixed in the said rule (People
vs. Court of Appeals, May 29, 1995).
Section 8. Records
Records of the preliminary investigation
shall NOT automatically form part of the
records of the case. Courts are not
compelled to take judicial notice thereof.
It must be introduced as an evidence.
Section 9. Cases not requiring a
preliminary investigation nor covered
by the Rule on Summary Procedure.
PROCEDURE TO BE FOLLOWED IN CASES
WHICH DO NOT REQUIRE PRELIMINARY
INVESTIGATION
1. Evaluate the evidence presented
2. Conduct searching questions or
answers
3. Require the submission of
additional evidence
 For cases under the Revised
Rules on Summary Procedure, no warrant
shall be issued except where the accused
fails to appear after being summoned.
If the complaint is filed with the
prosecutor involving an offense
punishable by imprisonment of less than
4 years, 2 months and 1 day, the
procedure in Rule 112, Section 3 (a) shall
be observed.
If the complaint is filed with the MTC, the
same procedure under Rule 112, Section
3 (a) shall be observed.

RULE 110
Prosecution of Offenses
Section 1. Institution of criminal actions. —
Criminal actions shall be instituted as
follows:
(a) For offenses where a preliminary
investigation is required pursuant to
section 1 of Rule 112, by filing the
complaint with the proper officer for
the purpose of conducting the
requisite preliminary investigation.
(b) For all other offenses, by filing
the complaint or information directly
with the Municipal Trial Courts and
Municipal Circuit Trial Courts, or the
complaint with the office of the
prosecutor. In Manila and other
chartered cities, the complaint shall
be filed with the office of the
prosecutor unless otherwise
provided in their charters.
The institution of the criminal action shall
interrupt the running period of prescription of
the offense charged unless otherwise
provided in special laws. (1a)
Section 2. The Complaint or information. —
The complaint or information shall be in
writing, in the name of the People of the
Philippines and against all persons who
appear to be responsible for the offense
involved. (2a)
Section 3. Complaint defined. — A
complaint is a sworn written statement
charging a person with an offense,
subscribed by the offended party, any peace
officer, or other public officer charged with
the enforcement of the law violated. (3)
Section 4. Information defined. — An
information is an accusation in writing
charging a person with an offense,
subscribed by the prosecutor and filed with
the court. (4a)
Section 5. Who must prosecute criminal
actions. — All criminal actions commenced
by a complaint or information shall be
prosecuted under the direction and control of the
prosecutor. However, in Municipal Trial Courts
or Municipal Circuit Trial Courts when the
prosecutor assigned thereto or to the case is not
available, the offended party, any peace officer,
or public officer charged with the enforcement of
the law violated may prosecute the case. This
authority cease upon actual intervention of the
prosecutor or upon elevation of the case to the
Regional Trial Court. (This Section was repealed by A.M. No.
02-2-07-SC effective May 1, 2002)
The crimes of adultery and concubinage shall
not be prosecuted except upon a complaint filed
by the offended spouse. The offended party
cannot institute criminal prosecution without
including the guilty parties, if both alive, nor, in
any case, if the offended party has consented to
the offense or pardoned the offenders.
The offenses of seduction, abduction and acts
of lasciviousness shall not be prosecuted except
upon a complaint filed by the offended party or
her parents, grandparents or guardian, nor, in
any case, if the offender has been expressly
pardoned by any of them. If the offended party
dies or becomes incapacitated before she can
file the complaint, and she has no known
parents, grandparents or guardian, the State
shall initiate the criminal action in her behalf.
The offended party, even if a minor, has the right
to initiate the prosecution of the offenses of
seduction, abduction and acts of lasciviousness
independently of her parents, grandparents, or
guardian, unless she is incompetent or
incapable of doing so. Where the offended
party, who is a minor, fails to file the complaint,
her parents, grandparents, or guardian may file
the same. The right to file the action granted to
parents, grandparents or guardian shall be
exclusive of all other persons and shall be
exercised successively in the order herein
provided, except as stated in the preceding
paragraph.
No criminal action for defamation which consists
in the imputation of the offenses mentioned
above shall be brought except at the instance of
and upon complaint filed by the offended party.
(5a)
The prosecution for violation of special laws
shall be governed by the provisions thereof. (n)
Section 6. Sufficiency of complaint or
information. — A complaint or information is
sufficient if it states the name of the
accused; the designation of the offense
given by the statute; the acts or omissions
complained of as constituting the offense;
the name of the offended party; the
approximate date of the commission of the
offense; and the place where the offense
was committed.
When an offense is committed by more than
one person, all of them shall be included in
the complaint or information. (6a)
Section 7. Name of the accused. — The
complaint or information must state the
name and surname of the accused or any
appellation or nickname by which he has
been or is known. If his name cannot be
ascertained, he must be described under a
fictitious name with a statement that his true
name is unknown.
If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such true name shall
be inserted in the complaint or information
and record. (7a)
Section 8. Designation of the offense. —
The complaint or information shall state the
designation of the offense given by the
statute, aver the acts or omissions
constituting the offense, and specify its
qualifying and aggravating circumstances. If
there is no designation of the offense,
reference shall be made to the section or
subsection of the statute punishing it. (8a)
Section 9. Cause of the accusation. — The
acts or omissions complained of as
constituting the offense and the qualifying
and aggravating circumstances must be
stated in ordinary and concise language and
not necessarily in the language used in the
statute but in terms sufficient to enable a
person of common understanding to know
what offense is being charged as well as its
qualifying and aggravating circumstances
and for the court to pronounce judgment.
(9a)
Section 10. Place of commission of the
offense. — The complaint or information is
sufficient if it can be understood from its
allegations that the offense was committed or
some of the essential ingredients occurred at
some place within the jurisdiction of the court,
unless the particular place where it was
committed constitutes an essential element of
the offense or is necessary for its identification.
(10a)
Section 11. Date of commission of the offense.
— It is not necessary to state in the complaint or
information the precise date the offense was
committed except when it is a material
ingredient of the offense. The offense may be
alleged to have been committed on a date as
near as possible to the actual date of its
commission. (11a)
Section 12. Name of the offended party. — The
complaint or information must state the name
and surname of the person against whom or
against whose property the offense was
committed, or any appellation or nickname by
which such person has been or is known. If there
is no better way of identifying him, he must be
described under a fictitious name.
(a) In offenses against property, if the
name of the offended party is unknown,
the property must be described with
such particularity as to properly identify
the offense charged.
(b) If the true name of the of the person
against whom or against whose properly
the offense was committed is thereafter
disclosed or ascertained, the court must
cause the true name to be inserted in the
complaint or information and the record.
(c) If the offended party is a juridical
person, it is sufficient to state its name,
or any name or designation by which it
is known or by which it may be identified,
without need of averring that it is a
juridical person or that it is organized in
accordance with law. (12a)
Section 13. Duplicity of the offense. — A
complaint or information must charge but one
offense, except when the law prescribes a single
punishment for various offenses. (13a)
Section 14. Amendment or substitution. — A
complaint or information may be amended, in
form or in substance, without leave of court, at
any time before the accused enters his plea.
After the plea and during the trial, a formal
amendment may only be made with leave of
court and when it can be done without
causing prejudice to the rights of the
accused.
However, any amendment before plea,
which downgrades the nature of the offense
charged in or excludes any accused from
the complaint or information, can be made
only upon motion by the prosecutor, with
notice to the offended party and with leave
of court. The court shall state its reasons in
resolving the motion and copies of its order
shall be furnished all parties, especially the
offended party. (n)
subject to the generally accepted
principles of international law.
(d) Crimes committed outside the
Philippines but punishable under Article
2 of the Revised Penal Code shall be
cognizable by the court where the
criminal action is first filed. (15a)
Section 16. Intervention of the offended party in
criminal action. — Where the civil action for
recovery of civil liability is instituted in the
criminal action pursuant to Rule 111, the
offended party may intervene by counsel in the
prosecution of the offense. (16a)

If it appears at any time before judgment that

a mistake has been made in charging the
proper offense, the court shall dismiss the RULE 111
original complaint or information upon the
filing of a new one charging the proper
Prosecution of Civil Action
offense in accordance with section 19, Rule
119, provided the accused shall not be
placed in double jeopardy. The court may Section 1. Institution of criminal and civil
require the witnesses to give bail for their actions. — (a) When a criminal action is
appearance at the trial. (14a) instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be
deemed instituted with the criminal action unless
Section 15. Place where action is to be
the offended party waives the civil action,
instituted. —
reserves the right to institute it separately or
institutes the civil action prior to the criminal
(a) Subject to existing laws, the action.
criminal action shall be instituted
and tried in the court of the
The reservation of the right to institute
municipality or territory where the
separately the civil action shall be made before
offense was committed or where
the prosecution starts presenting its evidence
any of its essential ingredients
and under circumstances affording the offended
occurred.
party a reasonable opportunity to make such
reservation.
(b) Where an offense is committed
in a train, aircraft, or other public or
When the offended party seeks to enforce civil
private vehicle while in the course of
liability against the accused by way of moral,
its trip, the criminal action shall be
nominal, temperate, or exemplary damages
instituted and tried in the court of
without specifying the amount thereof in the
any municipality or territory where
complaint or information, the filing fees thereof
such train, aircraft or other vehicle
shall constitute a first lien on the judgment
passed during such its trip, including
awarding such damages.
the place of its departure and arrival.
Where the amount of damages, other than
(c) Where an offense is committed
actual, is specified in the complaint or
on board a vessel in the course of its
information, the corresponding filing fees shall
voyage, the criminal action shall be
be paid by the offended party upon the filing
instituted and tried in the court of the
thereof in court.
first port of entry or of any
municipality or territory where the
vessel passed during such voyage,
Except as otherwise provided in these
Rules, no filing fees shall be required for
actual damages.
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action. (1a)
(b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to
include the corresponding civil action. No
reservation to file such civil action
separately shall be allowed.
Upon filing of the aforesaid joint criminal and
civil actions, the offended party shall pay in
full the filing fees based on the amount of the
check involved, which shall be considered
as the actual damages claimed. Where the
complaint or information also seeks to
recover liquidated, moral, nominal,
temperate or exemplary damages, the
offended party shall pay additional filing fees
based on the amounts alleged therein. If the
amounts are not so alleged but any of these
damages are subsequently awarded by the
court, the filing fees based on the amount
awarded shall constitute a first lien on the
judgment.
Where the civil action has been filed
separately and trial thereof has not yet
commenced, it may be consolidated with the
criminal action upon application with the
court trying the latter case. If the application
is granted, the trial of both actions shall
proceed in accordance with section 2 of this
Rule governing consolidation of the civil and
criminal actions. (cir. 57-97)
Section 2. When separate civil action is
suspended. — After the criminal action has
been commenced, the separate civil action
arising therefrom cannot be instituted until
final judgment has been entered in the
criminal action.
If the criminal action is filed after the said
civil action has already been instituted, the
latter shall be suspended in whatever stage
it may be found before judgment on the
merits. The suspension shall last until final
judgment is rendered in the criminal action.
Nevertheless, before judgment on the
merits is rendered in the civil action, the same
may, upon motion of the offended party, be
consolidated with the criminal action in the court
trying the criminal action. In case of
consolidation, the evidence already adduced in
the civil action shall be deemed automatically
reproduced in the criminal action without
prejudice to the right of the prosecution to cross-
examine the witnesses presented by the
offended party in the criminal case and of the
parties to present additional evidence. The
consolidated criminal and civil actions shall be
tried and decided jointly.
During the pendency of the criminal action, the
running of the period of prescription of the civil
action which cannot be instituted separately or
whose proceeding has been suspended shall be
tolled. (n)
The extinction of the penal action does not carry
with it extinction of the civil action. However, the
civil action based on delict shall be deemed
extinguished if there is a finding in a final
judgment in the criminal action that the act or
omission from which the civil liability may arise
did not exist. (2a)
Section 3. When civil action may proceeded
independently. — In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may
be brought by the offended party. It shall
proceed independently of the criminal action
and shall require only a preponderance of
evidence. In no case, however, may the
offended party recover damages twice for the
same act or omission charged in the criminal
action. (3a)
Section 4. Effect of death on civil actions. —
The death of the accused after arraignment and
during the pendency of the criminal action shall
extinguish the civil liability arising from the delict.
However, the independent civil action instituted
under section 3 of this Rule or which thereafter
is instituted to enforce liability arising from other
sources of obligation may be continued against
the estate or legal representative of the accused
after proper substitution or against said estate,
as the case may be. The heirs of the accused
may be substituted for the deceased without
requiring the appointment of an executor or
administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear
and be substituted within a period of thirty
(30) days from notice.
A final judgment entered in favor of the
offended party shall be enforced in the
manner especially provided in these rules
for prosecuting claims against the estate of
the deceased.
If the accused dies before arraignment, the
case shall be dismissed without prejudice to
any civil action the offended party may file
against the estate of the deceased. (n)
Section 5. Judgment in civil action not a bar.
— A final judgment rendered in a civil action
absolving the defendant from civil liability is
not a bar to a criminal action against the
defendant for the same act or omission
subject of the civil action. (4a)
Section 6. Suspension by reason of
prejudicial question. — A petition for
suspension of the criminal action based
upon the pendency of a prejudicial question
in a civil action may be filed in the office of
the prosecutor or the court conducting the
preliminary investigation. When the criminal
action has been filed in court for trial, the
petition to suspend shall be filed in the same
criminal action at any time before the
prosecution rests. (6a)
Section 7. Elements of prejudicial question.
— The elements of a prejudicial question
are: (a) the previously instituted civil action
involves an issue similar or intimately
related to the issue raised in the subsequent
criminal action, and (b) the resolution of
such issue determines whether or not the
criminal action may proceed. (5a)
RULE 112
Preliminary Investigation
Section 1. Preliminary investigation
defined; when required. — Preliminary
investigation is an inquiry or proceeding to
determine whether there is sufficient ground
to engender a well-founded belief that a
crime has been committed and the respondent
is probably guilty thereof, and should be held for
trial.
Except as provided in section 7 of this Rule, a
preliminary investigation is required to be
conducted before the filing of a complaint or
information for an offense where the penalty
prescribed by law is at least four (4) years, two
(2) months and one (1) day without regard to the
fine. (1a)
Section 2. Officers authorized to conduct
preliminary investigations. —
The following may conduct preliminary
investigations:
(a) Provincial or City Prosecutors and
their assistants;
(b) Judges of the Municipal Trial Courts
and Municipal Circuit Trial Courts;
(c) National and Regional State
Prosecutors; and
(d) Other officers as may be authorized
by law.
Their authority to conduct preliminary
investigations shall include all crimes cognizable
by the proper court in their respective territorial
jurisdictions. (2a)
Section 3. Procedure. — The preliminary
investigation shall be conducted in the following
manner:
(a) The complaint shall state the address
of the respondent and shall be
accompanied by the affidavits of the
complainant and his witnesses, as well
as other supporting documents to
establish probable cause. They shall be
in such number of copies as there are
respondents, plus two (2) copies for the
official file. The affidavits shall be
subscribed and sworn to before any
prosecutor or government official
authorized to administer oath, or, in their
absence or unavailability, before a
notary public, each of who must certify
that he personally examined the affiants
and that he is satisfied that they
voluntarily executed and understood
their affidavits.
(b) Within ten (10) days after the
filing of the complaint, the
investigating officer shall either
dismiss it if he finds no ground to
continue with the investigation, or
issue a subpoena to the respondent
attaching to it a copy of the
complaint and its supporting
affidavits and documents.
The respondent shall have the right
to examine the evidence submitted
by the complainant which he may
not have been furnished and to copy
them at his expense. If the evidence
is voluminous, the complainant may
be required to specify those which
he intends to present against the
respondent, and these shall be
made available for examination or
copying by the respondent at his
expense.
Objects as evidence need not be
furnished a party but shall be made
available for examination, copying,
or photographing at the expense of
the requesting party.
(c) Within ten (10) days from receipt
of the subpoena with the complaint
and supporting affidavits and
documents, the respondent shall
submit his counter-affidavit and that
of his witnesses and other
supporting documents relied upon
for his defense. The counter-
affidavits shall be subscribed and
sworn to and certified as provided in
paragraph (a) of this section, with
copies thereof furnished by him to
the complainant. The respondent
shall not be allowed to file a motion
to dismiss in lieu of a counter-
affidavit.
(d) If the respondent cannot be
subpoenaed, or if subpoenaed,
does not submit counter-affidavits
within the ten (10) day period, the
investigating officer shall resolve the
complaint based on the evidence
presented by the complainant.
(e) The investigating officer may set a
hearing if there are facts and issues to
be clarified from a party or a witness.
The parties can be present at the
hearing but without the right to examine
or cross-examine. They may, however,
submit to the investigating officer
questions which may be asked to the
party or witness concerned.
The hearing shall be held within ten (10)
days from submission of the counter-
affidavits and other documents or from
the expiration of the period for their
submission. It shall be terminated within
five (5) days.
(f) Within ten (10) days after the
investigation, the investigating officer
shall determine whether or not there is
sufficient ground to hold the respondent
for trial. (3a)
Section 4. Resolution of investigating
prosecutor and its review. — If the investigating
prosecutor finds cause to hold the respondent
for trial, he shall prepare the resolution and
information. He shall certify under oath in the
information that he, or as shown by the record,
an authorized officer, has personally examined
the complainant and his witnesses; that there is
reasonable ground to believe that a crime has
been committed and that the accused is
probably guilty thereof; that the accused was
informed of the complaint and of the evidence
submitted against him; and that he was given an
opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of
the complaint.
Within five (5) days from his resolution, he 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 ten (10) days from
their receipt thereof and shall immediately
inform the parties of such action.
No complaint or information may be filed or
dismissed by an investigating prosecutor
without the prior written authority or approval of
the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor
recommends the dismissal of the complaint
but his recommendation is disapproved by
the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his
deputy on the ground that a probable cause
exists, the latter may, by himself, file the
information against the respondent, or direct
any other assistant prosecutor or state
prosecutor to do so without conducting
another preliminary investigation.
If upon petition by a proper party under such
rules as the Department of Justice may
prescribe or motu proprio, 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. The same rule
shall apply in preliminary investigations
conducted by the officers of the Office of the
Ombudsman. (4a)
Section 5. Resolution of investigating judge
and its review. — Within ten (10) days after
the preliminary investigation, the
investigating judge shall transmit the
resolution of the case to the provincial or city
prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its
original jurisdiction, for appropriate action.
The resolution shall state the findings of
facts and the law supporting his action,
together with the record of the case which
shall include: (a) the warrant, if the arrest is
by virtue of a warrant; (b) the affidavits,
counter-affidavits and other supporting
evidence of the parties; (c) the undertaking
or bail of the accused and the order for his
release; (d) the transcripts of the
proceedings during the preliminary
investigation; and (e) the order of
cancellation of his bail bond, if the resolution
is for the dismissal of the complaint.
Within thirty (30) days from receipt of the
records, the provincial or city prosecutor, or
the Ombudsman or his deputy, as the case
may be, shall review the resolution of the
investigating judge on the existence of
probable cause. Their ruling shall expressly
and clearly state the facts and the law on which
it is based and the parties shall be furnished with
copies thereof. They shall order the release of
an accused who is detained if no probable cause
is found against him. (5a)
Section 6. When warrant of arrest may issue. —
(a) By the Regional Trial Court. — Within ten
(10) days from the filing of the complaint or
information, the judge shall 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. If he
finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant
issued by the judge who conducted the
preliminary investigation or when the complaint
or information was filed pursuant to section 7 of
this Rule. In case of doubt on the existence of
probable cause, the judge may order the
prosecutor to present additional evidence within
five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from
the filing of the complaint of information.
(b) By the Municipal Trial Court. — When
required pursuant to the second paragraph of
section 1 of this Rule, the preliminary
investigation of cases falling under the original
jurisdiction of the Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial
Court, or Municipal Circuit Trial Court may be
conducted by either the judge or the prosecutor.
When conducted by the prosecutor, the
procedure for the issuance of a warrant or arrest
by the judge shall be governed by paragraph (a)
of this section. When the investigation is
conducted by the judge himself, he shall follow
the procedure provided in section 3 of this Rule.
If the findings and recommendations are
affirmed by the provincial or city prosecutor, or
by the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue
a warrant of arrest. However, without waiting for
the conclusion of the investigation, the judge
may issue a warrant of arrest if he finds after an
examination in writing and under oath of the
complainant and his witnesses in the form of
searching question and answers, that a
probable cause exists and that there is a
necessity of placing the respondent under
immediate custody in order not to frustrate the
ends of justice.
(c) When warrant of arrest not necessary. —
A warrant of arrest shall not issue if the
accused is already under detention
pursuant to a warrant issued by the
municipal trial court in accordance with
paragraph (b) of this section, or if the
complaint or information was filed pursuant
to section 7 of this Rule or is for an offense
penalized by fine only. The court shall then
proceed in the exercise of its original
jurisdiction. (6a)
Section 7. When accused lawfully arrested
without warrant. — When a person is
lawfully arrested without a warrant involving
an offense which requires a preliminary
investigation, the complaint or information
may be filed by a prosecutor without need of
such investigation provided an inquest has
been conducted in accordance with existing
rules. In the absence or unavailability of an
inquest prosecutor, the complaint may be
filed by the offended party or a peace office
directly with the proper court on the basis of
the affidavit of the offended party or
arresting officer or person.
Before the complaint or information is filed,
the person arrested may ask for a
preliminary investigation in accordance with
this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised
Penal Code, as amended, in the presence
of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation
must be terminated within fifteen (15) days
from its inception.
After the filing of the complaint or
information in court without a preliminary
investigation, the accused may, within five
(5) days from the time he learns of its filing,
ask for a preliminary investigation with the
same right to adduce evidence in his
defense as provided in this Rule. (7a; sec.
2, R.A. No. 7438)
Section 8. Records. — (a) Records
supporting the information or complaint. —
An information or complaint filed in court
shall be supported by the affidavits and
counter-affidavits of the parties and their
witnesses, together with the other
supporting evidence and the resolution on
the case.
(b) Record of preliminary investigation. — The
record of the preliminary investigation, whether
conducted by a judge or a fiscal, shall not form
part of the record of the case. However, the
court, on its own initiative or on motion of any
party, may order the production of the record or
any its part when necessary in the resolution of
the case or any incident therein, or when it is to
be introduced as an evidence in the case by the
requesting party. (8a)
Section 9. Cases not requiring a preliminary
investigation nor covered by the Rule on
Summary Procedure. —
(a) If filed with the prosecutor. — If the
complaint is filed directly with the
prosecutor involving an offense
punishable by imprisonment of less four
(4) years, two (2) months and one (1)
day, the procedure outlined in section
3(a) of this Rule shall be observed. The
prosecutor shall act on the complaint
based on the affidavits and other
supporting documents submitted by the
complainant within ten (10) days from its
filing.
(b) If filed with the Municipal Trial Court.
— If the complaint or information is filed
directly with the Municipal Trial Court or
Municipal Circuit Trial Court for an
offense covered by this section, the
procedure in section 3(a) of this Rule
shall be observed. If within ten (10) days
after the filing of the complaint or
information, the judge finds no probable
cause after personally evaluating the
evidence, or after personally examining
in writing and under oath the
complainant and his witnesses in the
form of searching question and
answers, he shall dismiss the same. He
may, however, require the submission of
additional evidence, within ten (10) days
from notice, to determine further the
existence of probable cause. If the judge
still finds no probable cause despite the
additional evidence, he shall, within ten
(10) days from its submission or
expiration of said period, dismiss the
case. When he finds probable cause, he
shall issue a warrant of arrest, or a
commitment order if the accused had
already been arrested, and hold him for
trial. However, if the judge is satisfied
that there is no necessity for placing the
 accused under custody, he may
issue summons instead of a warrant
of arrest. (9a)
RULE 113
Arrest
Section 1. Definition of arrest. — Arrest is
the taking of a person into custody in order
that he may be bound to answer for the
commission of an offense. (1)
Section 2. Arrest; how made. — An arrest
is made by an actual restraint of a person to
be arrested, or by his submission to the
custody of the person making the arrest.
No violence or unnecessary force shall be
used in making an arrest. The person
arrested shall not be subject to a greater
restraint than is necessary for his detention.
(2a)
Section 3. Duty of arresting officer. — 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. (3a)
Section 4. Execution of warrant. — The
head of the office to whom the warrant of
arrest was delivered for execution shall
cause the warrant to be executed within ten
(10) days from its receipt. Within ten (10)
days after the expiration of the period, the
officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant. In case of his failure
to execute the warrant, he shall state the
reasons therefor. (4a)
Section 5. Arrest without warrant; when
lawful. — A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the
person to be arrested has
committed, is actually committing, or
is attempting to commit an offense;
(b) 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; and
(c) 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.
In cases falling under paragraph (a) and (b)
above, the person arrested without a warrant
shall be forthwith delivered to the nearest police
station or jail and shall be proceeded against in
accordance with section 7 of Rule 112. (5a)
Section 6. Time of making arrest. — An arrest
may be made on any day and at any time of the
day or night. (6)
Section 7. Method of arrest by officer by virtue
of warrant. — When making an arrest by virtue
of a warrant, the officer shall inform the person
to be arrested of the cause of the arrest and of
the fact that a warrant has been issued for his
arrest, except when he flees or forcibly resists
before the officer has opportunity to so inform
him, or when the giving of such information will
imperil the arrest. The officer need not have the
warrant in his possession at the time of the
arrest but after the arrest, if the person arrested
so requires, the warrant shall be shown to him
as soon as practicable. (7a)
Section 8. Method of arrest by officer without
warrant. — When making an arrest without a
warrant, the officer shall inform the person to be
arrested of his authority and the cause of the
arrest, unless the latter is either engaged in the
commission of an offense, is pursued
immediately after its commission, has escaped,
flees or forcibly resists before the officer has
opportunity so to inform him, or when the giving
of such information will imperil the arrest. (8a)
Section 9. Method of arrest by private person.
— When making an arrest, a private person
shall inform the person to be arrested of the
intention to arrest him and cause of the arrest,
unless the latter is either engaged in the
commission of an offense, is pursued
immediately after its commission, or has
escaped, flees, or forcibly resists before the
person making the arrest has opportunity to
so inform him, or when the giving of such
information will imperil the arrest. (9a)

Section 10. Officer may summon

assistance. — An officer making a lawful
arrest may orally summon as many persons
as he deems necessary to assist him in
effecting the arrest. Every person so
summoned by an officer shall assist him in
effecting the arrest when he can render such
assistance without detriment to himself.
(10a)

Section 11. Right of officer to break into

building or enclosure. — An officer, in order
to make an arrest either by virtue of a
warrant, or without a warrant as provided in
section 5, may break into any building or
enclosure where the person to be arrested
is or is reasonably believed to be, if he is
refused admittance thereto, after
announcing his authority and purpose. (11a)

Section 12. Right to break out from building

or enclosure. — Whenever an officer has
entered the building or enclosure in
accordance with the preceding section, he
may break out therefrom when necessary to
liberate himself. (12a)

Section 13. Arrest after escape or rescue.

— If a person 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. (13)

Section 14. Right of attorney or relative to

visit person arrested. — Any member of the
Philippine Bar shall, at the request of the
person arrested or of another acting in his
behalf, have the right to visit and confer
privately with such person in the jail or any
other place of custody at any hour of the
day or night. Subject to reasonable
regulations, a relative of the person
arrested can also exercise the same right.
(14a)