Proposed Revision On The Rules of Criminal Procedure Feb 5

PROPOSED REVISION ON THE RULES OF CRIMINAL PROCEDIURE FEBRUARY 3, 2014
BY JUDGE MARLO B. CAMPANILLA

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SECTION 1, RULE 110:
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 of the
period of prescription of the offense charged unless otherwise provided in
special laws.
PROPOSED REVISION:
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 of the
period of prescription of the offense punishable under special law or felony
charged unless otherwise provided by law.
EXPLANATORYNOTE:
Interruption of prescription of felony and offense - The last
paragraph of Section 1, Rule 110 of the Rules of Criminal Procedure contains
two parts. The first part The institution of the criminal action shall interrupt the
running of the period of prescription of the offense charged is an adoption of the
principle in Francisco vs. Court of Appeals, 122 SCRA 538, which provides that
the filling of the complaint with the fiscals office or court interrupts the period
of prescription of the offense charged. The second part unless otherwise
provided in special laws is an adoption of the ruling in Zaldivia vs. Reyes, 211
SCRA 538, which provides an exception to the general rule, and that is,
prescriptive period of crime punishable under special laws and municipal
ordinance shall only be interrupted upon filing of complaint or information in
court.
However, the Zaldivia rule has been abandoned by the Supreme Court in
SEC vs. Interport Resources Corporation, G.R. No. 135808, October 6, 2008, En
Banc, Panaguiton vs. Department of Justice, G.R. No. 167571, November 25,
2008 and People vs. Pangilinan, G.R. No. 152662, June 13, 2012, under which
cases filing of complaint in the fiscal office, or complaint or information in court
interrupts the prescriptive period of crime, whether it is punishable under the
Revised Penal Code or special laws.
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The first part of the proposed revision The institution of the criminal
action shall interrupt the running of the period of prescription of the offense
punishable under special law or felony charged reflects the latest
jurisprudence that eliminates the distinction between felony under the Revised
Penal Code and offense under a special law in terms of interruption of
prescription. The last part unless otherwise provided by law is a recognition
of the power of Congress to provide through legislation a special rule on
interruption of prescription.
SECTION 3, RULE 110
SEC. 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.
PROPOSED REVISED VERSION:
SEC. 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 and filed with the court.
EXPLANATORY NOTE
Complaint filed with the court - There are two kinds of complaint, to
wit: complaint filed with the court and one filed with the office of the fiscal.
Complaint filed with the fiscal prior to judicial action may be filed by any
person (Salazar vs. People, G.R. No. 149472, October 15, 2002). According
Justice Florenz Regalado, the complaint (which must be subscribed by the
offended party, any peace officer, or other public officer charged with the
enforcement of the law violated) referred to in Rule 110 contemplates one filed
in court to commence a criminal action in those cases where a complaint of the
offended party is required by law (such as Section 5, Rule 110 on institution of
action involving private crimes, or Section 7, Rule 112 on institution of criminal
action in the absence of inquest prosecutor).
The proposed revision will clearly show that the rule on subscription of
complaint by offended party or peace officer does not apply to complaint to be
filed with the fiscal for preliminary investigation.
SECTION 14, RULE 110

SEC. 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.

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If it appears at any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be placed
in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (14a)


SEC. 19. When mistake has been made in charging the proper offense.
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be convicted
of the offense charged or any other offense necessarily included therein, the
accused shall not be discharged if there appears good cause to detain him. In
such case, the court shall commit the accused to answer for the proper offense
and dismiss the original case upon the filing of the proper information. (11a)

PROPOSED INTEGRATION OF SECTION 19, RULE 119 WITH SECTION 14,
RULE 110

SEC. 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.

When it appears at any stage but before judgment that a mistake has
been made in charging the proper offense and the accused cannot be convicted
of the offense charged or any other offense necessarily included therein, the
court shall dismiss the original complaint or information upon the filing of a
new one charging the proper offense. But when such mistake becomes
manifest during trial, the court may motu proprio direct the filing of the
appropriate charge, and dismiss the case upon filing thereof. In such case, the
accused shall not be discharged if there appears good cause to detain him and
the court may require the witnesses to give bail for their appearance at the
trial.

If the offense to be charged in the new information or complaint is
cognizable by the Regional Trial Court, re-investigation shall be conducted
before substitution shall be allowed.

EXPLANATORY NOTES

There are two provisions in the Rules of Criminal Procedure that govern
substitution of information or complaint; one is the third paragraph of Section
14, Rule 110, while the other is Section 19, Rule 119.

1. Distinctions between Rule 110 and Rule 119 - Under Rule 110 and
Rule 119, when a mistake has been made in charging the proper offense, the
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court shall dismiss the original information or complaint upon the filing of a
new one charging the proper offense.

a. Different offenses - Under Rule 119, substitution is proper where
the accused cannot be convicted of the offense charged or any other offense
necessarily included therein. In sum, substitution requires the offense to be
charged in the new information or complaint is different from and is not
necessarily included in the offense charged in the original one. Although Rule
110 is silent on this matter; the Supreme Court En Banc ruled in Teehankee
vs. Madayag, G.R. No. 103102, March 6, 1992 that substitution (under Rule
110) requires or presupposes that the new information involves a
different offense which does not include or is not necessarily included in the
original charge, hence the accused cannot claim double jeopardy.

b. Double jeopardy - Rule 110 expressly requires that substitution must
not place the accused in double jeopardy. While Rule 119 is silent on this
matter, the filing of new information or complaint after the dismissal of the
original one shall not place the accused in double jeopardy because the offense
charged in the former is different from or is not necessarily included in the
offense charged in the latter (People vs. Madayag).

c. Stage when substitution is allowed - In Rule 110, mistake in
charging the proper offense appears at any time before judgment; while in Rule
119 such mistake becomes manifest also at any time before judgment.
However, since Rule 119 governs the trial stage of a case, the permissible stage
for effecting that substitution must be during the trial. On the other hand, Rule
110 contemplates a longer time span to make substitution, and that is, at any
stage before judgment, which includes the period from the filing of the
information up to and before trial (See: Galvez vs. CA, G.R. No. 114046 October
24, 1994).

d. Substitution can be ordered motu proprio or upon motion -
Substitution under Rule 110 or Rule 119 can be made by the court motu
proprio or upon motion of the public prosecutor. In the case of Galvez, supra,
the Supreme Court ruled:

Rule 119 is the rule specifically governing the trial stage
where evidence is necessarily being presented, hence the trial court
is now in a better position to conclude that manifestly the accused
cannot be convicted of the offense charged or of one that it
necessarily includes. It would primarily be the function of the court
to motu proprio order the dismissal of the case and direct the filing of
the appropriate information. We do not discount the possibility of
either the prosecution or the defense initiating such dismissal and
substitution at that stage, although, from a realistic point of view,
that would be a rare situation. This provision, therefore, is more
directly and principally directed to the trial court to invest it with the
requisite authority to direct by itself the dismissal and refiling of the
informations therein contemplated.

"Rule 110, on the other hand, provides the procedural
governance for the prosecution of offenses. Section 14 thereof,
quoted infra, provides in its second paragraph the procedure and
requisites for the substitution of a defective information by the
correct one. Although, just like Section 11 of Rule 119 the
permissible stage for effecting that substitution is "at any time before
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judgment," unlike the latter situation it is sufficient that "it appears .
. . that a mistake has been made in charging the proper offense, . . .
." The situation under said Section 14 contemplates a longer time
span, inclusive of the period from the filing of the information up to
and before trial. Since no evidence has been presented at that stage,
the error would appear or be discoverable from a review of the
records of the preliminary investigation. Of course, that fact may be
perceived by the trial judge himself but, again, realistically it will be
the prosecutor who can initially determine the same. That is why
such error need not be manifest or evident, nor is it required that
such nuances as offenses includible in the offense charged be taken
into account. It necessarily follows, therefore, that the prosecutor can
and should institute remedial measures for the dismissal of the
original information and the refiling of the correct one, otherwise he
would be recreant to his duties."

2. Integration of the rules - Substitutions under Rule 110 and Rule 119
are almost the same, and yet, the Rules provide two separate provisions to
govern it. To simplify the rules, the proposed revision seeks to integrate the
provision on substitution under Rule 119 with that under Rule 110.

3. Adoption of Galvez ruling - Under the proposed revision,
substitution is proper when mistake in charging the proper offense appears at
any stage of the case. As observed in Galvez case, this is usually discovered by
the fiscal. In this situation, the public prosecutor can move for the dismissal of
the information upon filing of the proper one. But during the trial, such
mistake may become manifest upon presentation of evidence. With this
manifest mistake, the court may order substitution on its own initiative. The
proposed revision is an incorporation of the ruling in the Galvez case.

3. Offense charged is different from proper offense to be charged -
Under the proposed revision, substitution is only proper when the offense
charged in the new information or complaint is different from or is not
necessarily included in the offense charged in the original. This adopts the
principle in Tehankee case.

The phrase provided the accused shall not be placed in double
jeopardy in Rule 110 is not included in the proposed revision. Since the
offense charged in the new information or complaint is different from or is not
necessarily included in the offense charged in the original, the accused will not
definitely be place in double jeopardy by the filing of new information or
complaint. Hence, inserting the said phrase in the rule on substitution is just a
surplusage.

4. Reinvestigation - Since substitution necessarily involves a substantial
change from the original charge, another preliminary investigation is entailed
(Teehankee vs. Madayag, supra). The proposed revision incorporates this rule
by providing reinvestigation as a condition for substitution if the case is
cognizable by the Regional Trial Court. Reinvestigation is not needed if the case
is cognizable by the first level court since preliminary investigation is not
required therein.

SECTION 15 (C) OF RULE 110
RULE 110
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Section 15. Place where action is to be instituted.
x x x
(c) Where an offense is committed on board a vessel in the course of its voyage,
the criminal action shall be instituted and tried in the court of the first port of
entry or of any municipality or territory where the vessel passed during such
voyage, subject to the generally accepted principles of international law.
PROPOSED REVISION
Section 15. Place where action is to be instituted.
x x x
(c) Where an offense is committed on board a vessel in the course of its voyage,
the criminal action shall be instituted and tried in the court of the first port of
entry or of any municipality or territory where the vessel passed during such
voyage.
EXPLANATORY NOTE
Rule on venue, not subject to international law - Section 15 (c), Rule
110 of the Rules of Criminal Procedure provides a rule on venue involving
crime committed in a vessel, which is subject to the generally accepted
principles of international law. The rule on venue is a domestic concern and
the international law cannot dictates to us which court of territorial jurisdiction
should take cognizance over a crime committed aboard a vessel.
That is why the proposed revision deletes the phrase subject to the
generally accepted principles of international law in the said provision. What is
subject to international law is not the rule on venue but the territorial principle
under Article 2 of the Revised Penal Code. The rule on venue should not be
confused with the principle of territoriality. The principle of territoriality
provides that Philippines has jurisdiction over crime committed within its
territory subject to international law such as the Convention on the Law of the
Sea that recognizes the jurisdiction of the flag state over crimes committed
board a foreign merchant vessel travelling in the territorial water of the
Philippines. On the other hand, the rule of venue identifies the particular court
of territorial jurisdiction (such as Regional Trial Court of Manila, Regional Trial
Court of Cebu, etc.), which can take cognizance over a crime. The application of
rule of venue presupposes that the Philippines has jurisdiction over crime in
accordance with territoriality principle, extra-territoriality principle or
international law.
SECTIONS 2, 6 AND 7, RULE 111
SEC. 2. When separate civil action is suspended. x x x
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
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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.
SEC. 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.
SEC. 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.
PROPOSED REVISION
SEC. 2. Suspension of previously instituted civil action; consolidation. x x x
If the criminal action is filed after the civil action for the recovery of civil
liability arising from the offense charged 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.
SEC. 6. Suspension of subsequently instituted criminal action 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.
SEC. 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, (b)
the resolution of such issue determines whether or not the criminal action may
proceed, and (c) the previously instituted civil action does not involve the
enforcement of civil liability arising from the crime charged in the criminal
action, and is not an independent civil action.
EXPLANATORY NOTE
A previously instituted civil action involving civil liability arising from
crime shall be suspended upon the subsequent institution of criminal action
pursuant to the rule on preference of criminal action under second paragraph
of Section 2, Rule 111. While an independent civil action, previously or
subsequently instituted, shall proceed independently of the criminal action
pursuant to Section 3 thereof. On the other hand, subsequent criminal action
shall be suspended if there is a previously instituted civil action involving
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prejudicial question pursuant to the rule on preference of civil action under
Section 6 thereof.
However, some lawyers and law students cannot distinguish these three
rules. According to them, the provisions in Rule 111 are the most complicated
rules in Criminal Procedure. The proposed revision attempts to make the rules
more comprehensible by describing the civil liability involved in the civil action
under Section 2, and rephrasing the titles of Section 2 and 6, and revealing the
scope of the concept of prejudicial question as defined in Section 7. The
proposal will make the rule on preference of civil action, preference of criminal
action and independency of civil action easily distinguishable from each other.
SECTION 4, RULE 111
SEC. 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)
PROPOSED REVISED VERSION
SEC. 4. Effect of death on civil actions.The death of the accused before
final judgment shall extinguish not only the criminal liability but also civil
liability arising from the crime. Independent civil actions under Section 3 of
this Rule and that involving civil liability arising from other sources of
obligation survive despite the death of the accused. Substitution of the
deceased accused shall be governed by Section 16, Rule 3 of the Rules of
Court. 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.
EXPLANATORY NOTE
1. Death of accused before or after judgment - Section 4, Rule 111 of
the Rules of Criminal Procedure governs a situation where the accused dies
before final judgment. However, this rule is divided into two parts; one when
the accused dies before arraignment, and the other, when death occurs after.
Accordingly, if the accused dies after arraignment, it shall extinguish the civil
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liability arising from the delict. But 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.
Making two rules on the basis of the occurrence of the death of the
accused before or after arraignment is not in accordance with Article 89 of the
Revised Penal Code as interpreted by the Supreme Court in People vs. Bayotas,
G.R. No. 102007 September 2, 1994.
Under Article 89, criminal liability and pecuniary liability are
extinguished when the death of the offender occurs before final judgment.
Some opines that the terms pecuniary liability mentioned in Article 89 are not
the same as civil liability arising from crime. However, according to Justice
Regalado, death of accused prior to final judgment terminates the civil liability
directly arising from and solely based on the offense committed. In Bayotas
case and and other allied cases, the Supreme Court agreed with the opinion of
Justice Regalado. That is why these cases ruled that death of the accused
during the pendency of appeal extinguishes civil liability arising from crime.
What is therefore important is that the accused dies before the finality of
judgment. If he dies after final judgment, civil liability arising from crime
survives. If he dies before final judgment, it extinguishes civil liability arising
from crime regardless of whether death occurs before or after arraignment.
The proposed revision removes the last paragraph of original provision,
and replaces the phrase after arraignment and during the pendency of the
criminal action in the first paragraph with before final judgment to disregard
the occurrence of death of accused before or after arraignment as a basis for
providing two separate rules. The phraseology in the proposed revision reflects
the rule on extinguishment of civil liability and criminal liability by reason of
death of the accused before final judgment in Article 89 of the Revised Penal
Code as interpreted by the Bayotas case.
2. Independent civil actions - Actions under Articles 32, 33, 34 and
2176 of the Civil Code and that involving liability arising from law, quasi-delict,
contract, or quasi-contract under Article 31 of the said Code are independent
civil actions. The rule on implied institution of civil action with the criminal
action under Section 1, Rule 111 and the consolidation of civil action and
criminal action under Sections 2 does not apply to independent civil actions.
Hence, the proceedings in a criminal action and an independent civil action are
always separate. Since the proceedings are separate, criminal action should be
governed by Rules of Criminal Procedure while independent civil actions should
be governed by the Rules of Civil Procedure. To provide uniformity and
simplicity of the rule, the proposed revision adopts the rules on substitution
under Section 16, Rule 3 of the Rules of Court.
SECTION 1, RULE 112
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
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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 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 cognizable by the Regional Trial Court. If the offense is cognizable by
the first level court, preliminary investigation is not required unless otherwise
provided by law.
EXPLANATORY NOTE
1. Preliminary investigation - The rule that only cases cognizable with
the Regional Trial Court are subject to preliminary investigation is highly being
considered by the Committee on Revision of Rules of Criminal Procedure.
2. Right to preliminary investigation under the law - Under the
proposed revision, if the offense is cognizable by the first level court,
preliminary investigation is not required unless otherwise provided by law. This
rule recognizes the right of the accused to a preliminary investigation over
minor offenses if the same is granted by existing law such as Section 38 of RA
No. 409, the Revised Charter of City of Manila, which provides that the fiscal of
the city shall cause to be investigated all charges of crimes, misdemeanors, and
violations of ordinances. In fact, the Office of the City Prosecutor of Manila is
presently conducting preliminary investigation and inquest proceeding over
crimes punishable by a penalty of 4 years and 2 month of imprisonment or
less.
SECTION 6, RULE 112
SEC. 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 or
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
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the prosecutor, the procedure for the issuance of a warrant of 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 his 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 questions 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)
PROPOSED REVISION
SEC. 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 of the Regional Trial Court 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 and the complaint
or information was filed after inquest proceeding 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 or information.
(b) By the first level court. The judge of the inferior court shall follow the
procedure for the issuance of a warrant of arrest under paragraph (a) of this
section. However, if the judge finds that the case is covered by the rules on
summary procedure, he shall not issue warrant of arrest, or shall issue an
order releasing the accused, who was lawfully arrested without a warrant.
(c) Offense punishable by fine only A warrant of arrest shall not issue
for an offense penalized by fine only. The court shall then proceed in the
exercise of its original jurisdiction.
(d) Motion for judicial determination of probable cause Hearing or a de
novo trial is not required in determining probable cause for the issuance of
warrants of arrests or commitment order unless the court in the exercise of
sound discretion decides to conduct it. Despite the pendency of a motion for
judicial determination of probable cause by the accused, the court shall make
such determination within the required period.
Motion for judicial determination of probable cause is prohibited when
the case is covered by the Rules on Summary Procedure or after the court has
issued a warrant of arrest or commitment order.
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(e) Bench warrant The judge of the first level court or Regional Trial
Court may issue a bench warrant of arrest for failure of the accused to appear
whenever required or for violation of the condition of bail. Despite waiver of
appearance, the presence of the accused is still required at the arraignment,
during trial whenever necessary for identification purpose, and at the
promulgation of judgment unless it is for a light offense.
No bench warrant of arrest shall be issued to a mere witness for failure
to obey a subpoena duly served unless he is given opportunity to explain why
he should not be cited in contempt of court.
EXPLANATORY NOTE
1. First level court cannot conduct preliminary investigation -
Under Section 6, Rule 112 of the Rules of Civil Procedure, the judge of the
Regional Trial Court shall issue commitment order upon finding of probable
cause if the accused has already been arrested pursuant to a warrant issued
by the judge (of first level court) who conducted the preliminary investigation.
This is obsolete since judges of the first level courts cannot anymore conduct
preliminary investigation. A.M. No. 05-8-26-SC, which took effect on 3
October2005, has removed the conduct of preliminary investigation from
judges of the first level courts. That is why the proposed revision merely
maintains the duty of the judge to issue commitment order upon finding of
probable cause if the accused is lawfully arrested and charged in court after an
inquest proceeding.
Second paragraph of Section 6 governs the manner of issuing warrant of
arrest by the courts of first level if preliminary investigation is required. The
rule is divided into two parts, the first of which is where preliminary
investigation is conducted by the judge while the other by the prosecutor.
This rule is already obsolete since judges of the first level courts cannot
anymore conduct preliminary investigation. Moreover, one of the objectives of
revising the rules is to simply them. That is why it is being highly considered
that cases should be subject to preliminary investigation where the penalty
prescribed for the crime involved is not more than six (6) years. With this rule,
there is no need to distinguish preliminary investigation conducted by judge of
first level court or by the prosecutor for purposes of determining what
procedure should be followed in issuing warrant of arrest.
2. Uniform procedure in issuing warrant of arrest - To provide
uniformity in the rule, the procedures under the proposed revision to be
followed in issuing warrant of arrest by the Regional Trial Court or inferior
court should be the same except when the case is covered by the Rules on
Summary Procedure.
3. Rules on Summary Procedure - In cases covered by the Rules on
Summary Procedure, the court is not allowed to issue warrant of arrest upon
the filing of information although it can issue a bench warrant if the accused
fails to appear in court when required to do so. Thus, an accused prior to
conviction will not be arrested or detained unless he fails to appear when
required by the court or the rules. However, if the accused is lawfully arrested,
but he cannot afford to post bail, he will remain under detention despite the
case is covered by the Rules on Summary Procedure. This is unfair especially if
the accused voluntarily surrenders in recognition of the authority of the
apprehending officer. This would create an absurd situation where an accused,
who refuses to recognize the police authorities by evading arrest, will be reward
13

by not placing him under detention unless he will fail to appear whenever
required while one, who recognizes the authorities by voluntarily surrendering
to them, will be penalized by not releasing him until he posts bail in cash or on
recognizance.
Under the proposed revised version of the rules, the court upon findings
that the case is covered by the Rules on Summary Procedure should order the
release of the accused, who was lawfully arrested. This rule will place the
accused, who was arrested, and one who is not, approximately on equal
footings.
4. Non-issuance of warrant of arrest Under the third paragraph of
Section 6, Rule 112, warrant of arrest shall not be issued 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. The warrant
contemplated under this rule is one issued by the judge after conducting
preliminary investigation. This is already obsolete since judge is not anymore
authorized to conduct preliminary investigation.
Under the said provision, warrant of arrest shall not be issued if the
complaint or information was filed pursuant to section 7 of this Rule. What is
contemplated under this rule is a situation where the accused is lawfully
arrested and a complaint or information is filed after conducting inquest
proceeding. This rule should be deleted since it is already covered by the rules
under first and second paragraphs of Section 6, Rule 112, where the judge of
the Regional Trial Court or first level court upon finding of probable cause shall
issue commitment order instead of warrant of arrest if the accused is lawfully
detained.
However, the proposed revision retains the non-issuance of warrant for
offense for which the penalty prescribed is fine only.
5. Motion for judicial determination of probable cause - Filing of
motions for judicial determination of probable court, which is now being
availed of by law practitioners to protect the interest of their clients, may be a
cause of delay of the disposition of cases if there are no rules that will regulates
it. The proposed revision rules seek to regulate it.
a. Trial de novo or hearing is not required - In Laviste vs. Alameda, G.R.
No. 182677, August 03, 2010, it was held:
To move the court to conduct a judicial determination of
probable cause is a mere superfluity, for with or without such
motion, the judge is duty-bound to personally evaluate the resolution
of the public prosecutor and the supporting evidence. In fact, the
task of the presiding judge when the Information is filed with the
court is first and foremost to determine the existence or non-
existence of probable cause for the arrest of the accused.
The rules do not require cases to be set for hearing to
determine probable cause for the issuance of a warrant of arrest of
the accused before any warrant may be issued. Petitioner thus
cannot, as a matter of right, insist on a hearing for judicial
determination of probable cause. Certainly, petitioner "cannot
determine beforehand how cursory or exhaustive the [judge's]
examination of the records should be [since t]he extent of the judge's
14

examination depends on the exercise of his sound discretion as the
circumstances of the case require." In one case, the Court
emphatically stated:
The periods provided in the Revised Rules of Criminal
Procedure are mandatory, and as such, the judge must determine
the presence or absence of probable cause within such periods.
In People vs. Yadao, G.R. Nos. 162144-54, November 13, 2012, the
Supreme Court ruled:
The general rule of course is that the judge is not required,
when determining probable cause for the issuance of warrants of
arrests, to conduct a de novo hearing. The judge only needs to
personally review the initial determination of the prosecutor finding
a probable cause to see if it is supported by substantial evidence.
But here, the prosecution conceded that their own witnesses
tried to explain in their new affidavits the inconsistent statements
that they earlier submitted to the Office of the Ombudsman.
Consequently, it was not unreasonable for JudgeYadao, for the
purpose of determining probable cause based on those affidavits, to
hold a hearing and examine the inconsistent statements and related
documents that the witnesses themselves brought up and were part
of the records. Besides, she received no new evidence from the
respondents.
Despite of the Laviste case and Yadao case, some practitioners are still
insisting that a hearing or a trial de novo be conducted before the court should
determine probable cause. The proposed revision adopts the ruling in Laviste
case that the 10-30 day period to determine probable cause is mandatory and
hearing or trial de novo is not required in determining probable cause and the
ruling in Yadao case finding that the holding of a hearing is not
unreasonable.
b. Prohibited motion - If the case is covered by the Rules on Summary
Procedure, the judge of the first level court has no duty to determine probable
cause for purpose of issuing warrant of arrest. Hence, a motion for judicial
determination of probable cause should be considered as a prohibited motion.
Allowing this motion will defeat the purpose of the Rules on Summary
Procedure, and that is, the speedy disposition of case.
The issuance of a warrant of arrest presupposes the finding of probable
cause. Hence, it is not proper to file motion for judicial determination of
probable cause after the issuance of warrant of arrest since there is no need to
determine probable cause. Of course, the order finding probable cause and
requiring the issuance of warrant for being an interlocutory order is subject to
a motion for reconsideration. Such motion is not covered by the prohibition.
If a motion for judicial determination of probable cause will be allowed
despite the issuance of warrant of arrest, and the same is denied, the accused
may file a motion for reconsideration. This will delay the case. But if the filing
of a motion for judicial determination of probable cause after the issuance of
warrant is prohibited, although a motion for reconsideration of the order
finding probable cause is allowed, the delay of the case is not so much since
there is only one motion to be resolved by the court.
15

6. Bench warrant of arrest - The Rules of Criminal Procedure fails to
regulate issuance of bench warrant of arrest. Because of this, some
practitioners and prosecutors are moving for the issuance of warrant of arrest
for failure of accused to appear in court although there is a waiver of
appearance and his appearance is not necessary. In order to avoid the
indiscriminate issuance of bench warrants, the same should be subject to
regulation and guidelines.
Settled is the rule that the presence of the accused is required and
cannot be waived (a) at arraignment and plea, whether of innocence or of
guilt, (b) during trial whenever necessary for identification purposes, and (c) at
the promulgation of sentence, unless it is for a light offense, in which case the
accused may appear by counsel or representative (People vs. Lavides, G.R. No.
129670, February 01, 2000). The issuance of the warrant of arrest for failure of
accused to appear at the trial is unnecessary if there is a waiver of appearance
and there is no order specifically requiring him to appear for purpose of
identification (Bernardo vs. People, G.R. NO. 166980, April 03, 2007). The
proposed revision adopts this rule by specifying the circumstances where
bench warrant can be issued for failure of accused to appear whenever
required.
7. Opportunity to explain Failure of a mere witness to appear to
testify is not a ground for citing him for direct contempt and for immediately
issuing a bench warrant of arrest. However, there are still practitioners, who
are moving for the immediate issuance of warrant of arrest for failure of mere
witness to appear in court. The proposed revision introduces the proper
procedure to be followed to punish a disobedient witness, and that is, charging
him for indirect contempt of court (Section 3 [f], Rule 71 of the Rules of Court).
Hence, the witness should be given opportunity to explain why he should not
be cited in contempt of court (Section 4, Rule 71).
SECTION 7, RULE 112
SEC. 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 officer 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.
16

SEC. 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 officer 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 his right not to be detained beyond the period stated in Article 125 of
the Revised Penal Code, as amended or other law. Notwithstanding the waiver,
he may apply for bail and the investigation must be terminated within fifteen
(15) days from execution of waiver. The suspect shall be released if the
investigation is not terminated within the fifteen-day period.
Any waiver by a person arrested or detained under the provisions of
Article 125 of the Revised Penal Code, or under custodial investigation, shall be
in writing and signed by such person in the presence of his counsel; otherwise
the waiver shall be null and void and of no effect.
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. Within the same
period, the private complainant with the conformity of the public prosecutor
may file motion for re-investigation to determine the necessity of amending the
information or complaint to charge the accused with the proper crime.
When a person is lawfully arrested without a warrant involving an
offense which does not require a preliminary investigation, inquest is not
required in filing of complaint or information in court, and a motion for
preliminary investigation after the filing thereof in court is prohibited.
EXPLANATORY NOTE
1. Waiver of right not to be detained beyond the period in The phrase
a waiver of the provisions of Article125 of the Revised Penal Code, as amended
in the original version of Section 7, Rule 112 of the Rules of Criminal Procedure
is replaced by the phrase a waiver of his right not to be detained beyond the
period stated in Article 125 of the Revised Penal Code, as amended to make the
rule easily understandable.
2. Other law If person arrested is charged with or suspected of
terrorism or conspiracy to commit terrorism, and he arrest resulted from the
surveillance and examination of bank deposits of the terrorist suspect and
Anti-Terrorism Council duly authorized in writing the officer in taking custody
of the terrorist suspect, the 12-18-36 hour period of allowable detention under
Article 125 of the Revised Penal Code is not applicable. What is applicable is 3-
day period under Section 18 of RA No. 9372.
The proposed revision inserts the words other law in second paragraph
of Section 7 to serve as a reminder that a law other than the Revised Penal
Code may provide a different period within which the arrestee can be detained
prior to judicial delivery.
17

2. Period of 15 day to resolve case If the person arrested executed a
valid waiver, regular preliminary investigation instead of inquest proceeding
shall be conducted. He can be detained while the investigating prosecutor
conducts preliminary investigation. Since the suspect is under detention while
the preliminary investigation is being conducted, the Section 7, Rule 112
requires the immediate resolution of the case. Under the rules, the said
proceeding must be terminated within fifteen (15) days from its inception. To
protect suspect, who is presumed innocent, against prolonged detention, the
proposed revision requires his immediate release if the investigation is not
terminated within the period. This is a message to the public prosecutor that
the fifteen-day period to resolve preliminary investigation is mandatory.
3. Requirements of a waiver - Under Section 7, Rule 112, waiver of
provision under Article 125 of the Penal Code must be made in the presence of
his counsel. However, RA No. 7438, otherwise known as the Custodial
Investigation Law, provides as an additional requirement to make a waiver
valid. Section 2 of this law states:
Section 2. x x x (e) Any waiver by a person arrested or
detained under the provisions of Article 125 of the Revised Penal
Code, or under custodial investigation, shall be in writing and
signed by such person in the presence of his counsel; otherwise the
waiver shall be null and void and of no effect.
The proposed version adopts the requirements on such waiver under RA
No. 7438.
4. Right of private complainant to ask for re-investigation - In
Laviste vs. Almeda, G.R. No. 182677, August 03, 2010, the Supreme Court
observes that once complaint or information is filed in court after inquest, the
accused is given opportunity to ask for a preliminary investigation within five
days from the time he learns of its filing; however, the Rules of Court and the
New Rules on Inquest are silent, however, on whether the private complainant
could invoke a similar right to ask for a reinvestigation. Despite of such silence,
the Court ruled that the private complainant, by counsel and with the
conformity of the public prosecutor, can file a motion for reinvestigation. In this
case, as a consequence of such reinvestigation, the information was amended
charging the accused of murder instead of homicide.
The proposed version seeks to adopt the Laviste principle allowing
private complainant to ask reinvestigation similar to the right given to the
accused, who was charged in court after being subjected to an inquest
proceeding.
5. Cases where preliminary investigation is not required - Section 7,
Rule 112 fails to provide a regulation in case where the suspect is lawfully
arrested without a warrant involving an offense which does not require a
preliminary investigation. Although it is a basic rule that inquest proceeding
and motion for preliminary investigation under Section 7, Rule 112 are not
applicable if the crime of which the detainee was arrested does not require
preliminary investigation, it would be better to expressly state this rule. This is
the basis of the last paragraph of the proposed revised version of Section 7,
Rule112.
18

PROPOSED INCORPORATION OF THE RULE ON HOLD-DEPARURE ORDER
RULE 112-A
HOLD-DEPARTURE ORDER
Section 1. Issuing court - Hold-Departure Orders shall be issued only in
criminal cases within the exclusive jurisdiction of the Regional Trial Courts.
Section 2. Furnishing copy of the order - The Regional Trial Courts issuing
the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA)
and the Bureau of Immigration (BI) of the Department of Justice with a copy
each of the Hold-Departure Order issued within twenty-four (24) hours from
the time of issuance and through the fastest available means of transmittal;
Section 3. Contents of hold-departure order - The Hold-Departure Order
shall contain the following information:
a. The complete name (including the middle name), the date and place of
birth and the place of last residence of the person against whom a Hold-
Departure Order has been issued or whose departure from the country has
been enjoined;
b. The complete title and the docket number of the case in which
the Hold-Departure Order was issued;
c. The specific nature of the case; and
d. The date of the Hold-Departure Order.
If available, a recent photograph of the person against whom a Hold-
Departure Order has been issued or whose departure from the country has
been enjoined should also be included.
Section 4. Effects of acquittal of accused or dismissal of case - Whenever
(a) the accused has been acquitted; (b) the case has been dismissed, the
judgment of acquittal or the order of dismissal shall include therein the
cancellation of the Hold-Departure Order 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
twenty-four (24) hours from the time of promulgation/issuance and through
the fastest available means of transmittal.
EXPLANATORY NOTE

As early as 1997, the Supreme Court issued Circular No. 39-
97 regulating the issuance of hold-departure order. Under this rule, only the
Regional Trial Court can issue this order. However, despite this rule, several
judges of the first level courts are issuing hold-departure order in violation of
the rule.

In the following cases, judges were administratively sanctioned for
violation the rule on hold-departure order: A.M. No. 02-1-27-MCTC, May 07,
2002, Hold-Departure Order issued by Judge Salvador M. Occiano, MCTC-
Nabua, Camarines Sur, in Criminal Cases Nos. 7353 and 7363; A.M. No. 01-9-
19

245-MTC, December 05, 2001, RE: Hold-Departure Order issued by Judge
Agustin T. Sardido, MTC, Koronadal, South Cotobato in Criminal Case No.
19418; A.M. No. 99-12-192-MTC, January 26, 2000, Hold Departure Order
issued by Acting Judge Aniceto L. Madronio, Municipal Trial Court, Manaoag,
Pangasinan in Criminal Case No. 5275; A.M. No. 99-8-126-MTC, September
22, 1999, Issuance of Hold Departure Order of Judge Luisito T. Adaoag, MTC,
Camiling, Tarlac; A.M. No. 00-1281-MTJ, September 14, 2000, RE: Hold-
Departure Order dated August 9, 1999 issued by Judge Salvador B. Mendoza,
MCTC, Poro-San Francisco-Tedela-Pilar, Poro, Cebu; A.M. No. 01-9-246-MCTC,
October 09, 2001, RE: Hold Departure Order issued in Criminal Case No.
2735, Office of the Court Adminstrator, Complainant vs. Judge Alipio M.
Aragon, Acting Presiding Judge, Third Municipal Circuit Trial Court, Tumauini-
Delfin Albano, Isabela, Respondent; A.M. No. 99-8-109-MCTC, August 25,
1999, Hold Departure Order issued by Judge Eusebio M. Barot, MCTC, Branch
2, Aparri, Calayay, Cagayan; A.M. No. 98-10-141-MTCC, November 18, 1998,
Re: Hold Departure Order dated April 13, 1998 issued by Judge Juan C.
Nartatez, Municipal Trial Court, Branch 3, Davao City; A.M. 99-9-141-MTCC,
November 25, 1999; Hold Departure Order issued by Judge Felipe M. Abalos,
MTCC-Branch 1, Dipolog City in Criminal Cases Nos. 15521 & 15522; A.M. No.
MTJ-01-1351 (formerly OCA IPI No. 99-738-MTJ), January 27, 2004, Dr. John
M.W. Grieve vs. Judge Cornelio T. Jaca; A.M. No. RTJ-04-1885, OCA-IPI No.
03-1687-RTJ, November 17, 2004, State Prosecutor Pablo Formaran III, Atty.
Felino M. Ganal and Kanemitsu Yamaoka vs. Judge Marivic Trabajo-Daray,
Regional Trial Court, Branch 36, General Santos City; A.M. No. RTJ-04-1850,
July 14, 2004, Judge Lorinda T. Mupas vs. Judge Dolores L. Espaol, Regional
Trial Court, Branch 90, Dasmarias, Cavite; A.M. RTJ No. 03-1775, April 30,
2003, Dr. Isagani A. Cruz vs. Judge Philbert I. Iturralde, Regional Trial Court,
Antipolo City, Branch 72; A.M. No. MTJ-01-1349, July 12, 2001, Bernadette
Mondejar vs. Judge Marino S. Buban, MTCC, Tacloban City Branch 1; A. M.
No. RTJ-01-1635, September 17, 2002, Office of the Court Administrator vs.
Judge Lucenito N. Tagle, Regional Trial Court, Branch 20, Imus, Cavite;

To further inform the judges of the first level court regarding the rule on
hold-departure order, the proposed revision seeks to incorporate the provisions
of Circular No. 39-97 in the Rules of Criminal Procedure.

SECTIONS 7 AND 8, RULE 113

SEC. 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 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)

SEC. 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 to so inform
him, or when the giving of such information will imperil the arrest. (8a)

PROPOSED REVISION

20

SEC. 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 in a language known to and understood by him, of:(1) his rights to
remain silent and to have competent and independent counsel, preferably of
his own choice; (2) his right to demand physical examination by an
independent and competent doctor of his own choice; and (3) the cause of the
arrest and 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.

SEC. 8. Method of arrest by officer without warrant.When making an
arrest without a warrant, the officer shall inform the person to be arrested in a
language known to and understood by him of: (1) his rights to remain silent
and to have competent and independent counsel, preferably of his own choice;
(2) his right to demand physical examination by an independent and competent
doctor of his own choice; and (3) 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 to so inform him, or when the giving of such
information will imperil the arrest. (8a)

EXPLANATORY NOTE

Under the 1973 and 1987 Constitutions, person under custodial
investigation has the right to be informed of his right to remain silent and to
have an independent counsel. This is an adoption of the ruling in the case of
Miranda vs. Arizaona rendered by US Supreme Court. Since this right is only
available to a person under custodial investigation, an arrestee is not
immediately entitled to it prior to police investigation or questioning
propounded to elicit incriminatory information from him. That is why under
Sections 7 and 8, Rule 113 of the Rules of Criminal Procedure, police officer
has no obligation to give Miranda warning to a person arrested. However, RA
7438, otherwise known as Custodial Investigation Law, has expanded the
scope of Miranda warning by imposing obligation to apprehending officer to give
such warning to a person arrested, even if he is not yet under custodial
investigation. Section 2 of RA No. 7439 provides:

"(b) Any public officer or employee, or anyone acting under his
order or his place, who arrests, detains or investigates any person
for the commission of an offense shall inform the latter, in a
language known to and understood by him, of his rights to remain
silent and to have competent and independent counsel, preferably of
his own choice, who shall at all times be allowed to confer privately
with the person arrested, detained or under custodial investigation.
If such person cannot afford the services of his own counsel, he
must be provided with a competent and independent counsel by the
investigating officer."

Moreover, Section 12 of RA No. 9745, otherwise known as the Anti-torture
Law provides:

"Section 12.- Right to' Physical, Medical and Psychological
Examination. - Before and after interrogation, every person arrested,
21

detained or under custodial investigation shall have the right to he
informed of his/her right to demand physical examination by an
independent and competent doctor of his/her own choice. If such
person cannot afford the services of his/her own doctor, he/she
shall he provided by the State with a competent and independent
doctor to conduct physical examination. The State shall endeavor to
provide the victim with psychological evaluation if available under
the circumstances. If the person arrested is a female, she shall be
attended to preferably by a female doctor. Furthermore, any person
arrested, detained or under custodial investigation, including
his/her immediate family, shall have the right to immediate access
to proper and adequate medical treatment. The physical
examination and/or psychological evaluation of the victim shall be
contained in a medical report, duly signed by the attending
physician, which shall include in detail his/her medical history and
findings, and which shall he attached to the custodial investigation
report. Such report shall be considered a public document."

The proposed revision incorporates the mandate under RA No.
7438 on the Miranda warning and under RA No. 9745 on the right of the
person arrested to be informed of his right to demand physical examination.

SEC. 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)
PROPOSED REVISION
SEC. 14. Right to visit person arrested.Any person arrested shall be
allowed visits at any hour of the day or, in urgent cases, of the night by or
conferences with any member of his immediate family, or any medical doctor or
priest or religious minister chosen by him or by any member of his immediate
family or by his counsel, or by any national non-governmental organization
duly accredited by the Commission on Human Rights of by any international
non-governmental organization duly accredited by the Office of the President.
The person's "immediate family" shall include his or her spouse, fianc or
fiance, parent or child, brother or sister, grandparent or grandchild, uncle or
aunt, nephew or niece, and guardian or ward.
EXPLANATORY NOTE
The proposed revision is an implementation of the right to visit a person
arrested under RA No. 7438, otherwise known as Custodial Investigation Law.
SECTION 2, RULE 114
SEC. 2. Conditions of the bail; requirements.All kinds of bail are subject
to the following conditions:
22

(a) The undertaking shall be effective upon approval, and unless
cancelled, shall remain in form 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;
(b) The accused shall appear before the proper court whenever required
by the court or these Rules;
(c) 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 present
thereat. In such case, the trial may proceed in absentia; and
(d) The bondsman shall surrender the accused to the court for execution
of the final execution.
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 six (6) months showing the
face, left and right profiles of the accused must be attached to the bail. (2a)
PROPOSED REVISION
SEC. 2. Conditions of the bail; requirements.All kinds of bail are subject
to the following conditions:
(a) The undertaking shall be effective upon approval, and unless
cancelled, shall remain in form 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;
(b) The accused shall appear before the proper court whenever required
by the court or these Rules;
(c) 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 present
thereat. In such case, the trial may proceed in absentia;
(d) The accused shall not transfer his residence without informing the
court. Neither shall he travel outside the country without permission from the
court. The court may impose conditions for the travel of the accused
abroad; and
(e) The bondsman shall surrender the accused to the court for execution
of the final execution.
The court may impose other condition of bail if circumstances warrant it.
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 (passportsize) taken within the last six (6) months showing the
face, left and right profiles of the accused must be attached to the bail.
EXPLANATORY NOTE
There are occasions that the accused are waiving their right to appear at
the trial. Unless the rules or the court requires them to appear, the proceedings
23

are being conducted without the presence of the accused because of such
waiver. After a lengthy trial, the court may render a judgment of conviction only
to find out that the accused cannot anymore be located. The proposed revision
regarding restriction on the transfer of residence and travel abroad is intended
to secure that the accused is always within the reach of the court anytime his
appearance is needed. This rule is designed to detect at the early stage if the
accused is already hiding to evade criminal prosecution so that the court can
immediately tap the law enforcers to look for him.
The authority of the court to impose conditions for the travel of the
accused abroad under the proposed revision is in accordance with the cases of
Marcos vs. Sandiganbayan, G.R. Nos. 115132-34August 9, 1995, Manotoc vs.
CA, G.R. No. L-62100, May 30, 1986 and Silverio vs.CA, G.R. No. 94284 April
8, 1991 which have recognized the power of the court to restrict the right of the
accused to travel because of the condition imposed upon him when he posted
bail, and that is to make himself available at all times whenever the court
requires his presence.
The power of the court to impose a condition not mentioned in the rules
is in accordance with the Almeda vs. Villaluz, G.R. No. L-31665 August 6, 1975,
where it was stated:
As part of the power of the court over the person of the
accused and for the purpose of discouraging likely commission of
other crimes by a notorious defendant while on provisional liberty,
the latter could be required, as one of the conditions of his bail bond,
to report in person periodically to the court and make an accounting
of his movements.
SECTIONS 4 TO 7, RULE 114
SEC. 4. Bail, a matter of right; exception.All persons in custody shall be
admitted to bail as a matter of right, with sufficient sureties, or released on
recognizance as prescribed bylaw or this Rule (a) before or after conviction by
the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in
Cities, or Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial Court ofan offense not punishable by death, reclusion
perpetua, or life imprisonment. (4a)
SEC. 5. Bail, when discretionary.Upon conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. 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.
Should the court grant the application, the accused may be allowed to
continue on provisional liberty during the pendency of the appeal under the
same bail subject to the consent of the bondsman.
If the penalty imposed by the trial court is imprisonment exceeding six
(6) years, the accused shall be denied bail, or his bail shall be cancelled upon a
showing by the prosecution, with notice to the accused, of the following or
other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or
24

habitual delinquent, or has committed the crime aggravated by the
circumstance of reiteration; (b) That he has previously escaped from legal
confinement, evaded sentence, or violated the conditions of his bail without
valid justification; (c) That he committed the offense while under probation,
parole, or conditional pardon; (d) That the circumstances of his case indicate
the probability of flight if released on bail; or (e) That there is undue risk that
he may commit another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review
the resolution of the Regional Trial Court after notice to the adverse party in
either case. (5a)
SEC. 6. Capital offense, defined.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. (6a)
SEC. 7. Capital offense or an offense punishable by reclusion perpetua or
life imprisonment, not bailable. No person charged with a capital offense, or
an offense punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong, regardless of the stage of the
criminal prosecution. (7a)
REVISED PROPOSED VERSION
SEC. 4. Bail, a matter of right. - All persons in custody shall be admitted
to bail as a matter of right, with sufficient sureties, or released on recognizance
as prescribed by law or this Rule before or after conviction of a bailable offense
except as provided in Section 5 of this Rule. Bail is a matter of right even before
a person in custody is formally charged in court.
SEC. 5. Bail, a matter of discretion. - Upon conviction by the Regional
Trial Court of a bailable offense and the penalty imposed is imprisonment
exceeding six (6) years, admission to bail is discretionary. However, the
accused shall be denied bail, or his bail shall be cancelled upon a showing by
the prosecution, with notice to the accused, of the following or other similar
circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the circumstance of
reiteration; (b) That he has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional
pardon; (d) That the circumstances of his case indicate the probability of flight
if released on bail; or (e) That there is undue risk that he may commit another
crime during the pendency of the appeal.
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.
Should the court grant the application, the accused may be allowed to
continue on provisional liberty during the pendency of the appeal under the
same bail subject to the consent of the bondsman.
25

The appellate court may, motu proprio or on motion of any party, review
the resolution of the Regional Trial Court after notice to the adverse party in
either case.
SEC. 6. Non-bailable offense, defined.A non-bailable offense is an
offense where the penalty or a component thereof prescribed by the law
existing at the time of its commission and of the application for admission to
bail is death, reclusion perpetua or life imprisonment.
SEC. 7. Non-bailable offense.No person charged with a non-bailable
offense shall be admitted to bail when evidence of guilt is strong, regardless of
the stage of the criminal prosecution.
When an accused is charged with a non-bailable offense and is out on
bail and after trial is convicted by the trial court of the offense charged, his
bond shall be cancelled and the accused shall be placed in confinement
pending resolution of his appeal.
EXPLANATORY NOTE
1. Conviction of bailable offense by the court - Under Section 4, Rule
114 of the Rules of Criminal Procedure, bail is a matter of right before
conviction of bailable offense regardless of the court that renders it. After
conviction, bail as matter of right or as a matter of discretion will depend on
what court renders the conviction of the accused. If the conviction is rendered
by the first level court, it is a matter of right under Section 4. If is rendered by
the Regional Trial Court, it is a matter of sound discretion under first
paragraph of Section 5 or a matter of stringent discretion under the third
paragraph thereof. In People vs. Laviste, G.R. No. 189122, March 17, 2010, it
was ruled:
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 Section 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 Section 5, Rule 114
are absent. In other words, the appellate court's denial
of bail pending appeal where none of the said circumstances exists
does not, by and of itself, constitute abuse of discretion.
On the other hand, in 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. Conversely, if the appellate court
grants bail pending appeal, grave abuse of discretion will thereby
be committed.
2. Penalty of not exceeding 6 years imposed by Regional Trial Court
- Bail is a matter of sound discretion if the conviction is made by the Regional
Trial Court even if the penalty is less than six (6) years of imprisonment (See:
Remedial Law Compendium by Regalado). On the other hand, the rule on bail
as matter of stringent discretion requires that the penalty imposed is more
than six (6) years of imprisonment.
26

However, these rules may sometimes create an unfair situation. For
example, if the accused is convicted by the Metropolitan Trial Court of
attempted homicide and sentenced him to suffer the penalty of 6 years of
prision correccional, bail is a matter of right. Under Section 4, bail is a matter
of right before or after conviction by the Metropolitan Trial Court. But if the
accused was incorrectly charged with frustrated homicide, and the Regional
Trial Court convicted him of attempted homicide and sentenced him to suffer
the penalty of 6 years of prision correccional, bail is a matter of sound
discretion under Section 5. In sum, since the accused was convicted by the
Regional Trial Court, bail is not a matter of right. In this situation, the accused
is made to suffer the consequence of the mistake committed by the public
prosecutor in charging him with frustrated homicide, which is cognizable by
the Regional Trial Court, instead of attempted homicide, which is cognizable by
the inferior court.
Under proposed revision, the rules on bail under Section 5, whether as a
matter of sound discretion or stringent discretion, applies to situation where
the penalty imposed by the Regional Trial Court upon conviction of the accused
is an imprisonment exceeding six years. In other words, if the penalty imposed
is less than 6 years of imprisonment, bail is a matter of right whether the
conviction is rendered by the first level court or Regional Trial Court because
the applicable rule is Section 4, which provides that bail is a matter of right
except in those cases provided in Section 5
3. No formal charge - In Ocampo vs. Bernabe, G.R. No. L-439, August
20, 1946, the Supreme Court ruled that bail is a matter of right, whether the
accused is charged or not yet charged in court. The last sentence of the
proposed Section 4 adopts this ruling.
4. Non-bailable offense - Under the 1940 Rules of Criminal Procedure,
capital offense is non-bailable while non-capital offense is bailable. That is why
it provided a definition of capital offense to simply the rules on bailable and
non-bailable offenses. The provisions on capital offenses are still found in the
present Rules of Criminal Procedure. However, under the present procedural
set up, non-bailable offense is not limited to capital offense but it includes
offense punishable by reclusion perpetua or life imprisonment. To simplify the
rules on bailable and non-bailable offenses, the proposed revision replaces the
provisions on capital offense with those on non-bailable offense.
5. Death penalty - Under Section 6 of the proposed revised rules, non-
bailable offense includes an offense where the penalty prescribed by law is
death penalty. Although RA 9346 prohibits the imposition of death penalty, it
did not alter the penalty for heinous crimes. It merely automatically reduces
death penalty to reclusion perpetua or life imprisonment. Thus, for purposes of
determining the bailability or non-bailability of an offense, the penalty of death
should still be the penalty to be reckoned with (See: People vs. Quitorio, G.R.
No. 116765 January 28, 1998; People vs. Sarcia, G.R. No. 169641, September
10, 2009; People vs. Jacinto, G.R. No. 182239, March 16, 2011).
6. Component of compound or complex penalty - Under Section 6 of
the proposed revised rules, non-bailable offense includes an offense where
a component of the penalty prescribed by law is death penalty, reclusion
perpetua or life imprisonment. Thus, illegal possession of dangerous drugs
punishable by a penalty of 20 years and 1 day to life imprisonment under
Section 11 (2) of RA No. 9165, and child prostitution punishable by a penalty
27

of reclusion temporal in its medium period to reclusion perpetua under Section 5
of RA No. 7610 are considered non-bailable offenses.
7. Conviction of non-bailable offense - An accused who is charged with
a non-bailable offense shall not be entitled to bail as a matter of right even if he
appeals the case since his conviction clearly imports that the evidence of his
guilt of the offense charged is strong (People vs. Laviste, supra). Hence,
Administrative Circular No. 2-92, January 20, 1992 provides:
When an accused is charged with a capital offense or an
offense which under the law at the time of its commission and at the
time of the application for bail is punishable by reclusion
perpetua and is out on bail and after trial is convicted by the trial
court of the offense charged, his bond shall be cancelled and the
accused shall be placed in confinement pending resolution of his
appeal.
The last paragraph of Section 7 of the proposed revised rules adopts the
guideline in Administrative Circular No. 2-92.
SECTION 9, RULE 114
SEC. 9. Amount of bail; guidelines.The judge who issued the warrant or
granted the application shall fix a reasonable amount of bail considering
primarily, butnot limited to, the following factors:(a) Financial ability of the
accused togive bail; (b) Nature and circumstances of the offense; (c) Penalty for
theoffense charged; (d) Character and reputation of the accused; (e) Age
andhealth of the accused; (f) Weightof the evidence against the accused; (g)
Probability of the accused appearingat the trial; (h) Forfeiture of other bail;
(i) The fact that the accused was afugitive from justice when arrested; and
(j) Pendency of other cases where theaccused is on bail.
Excessive bail shall not be required.
SEC. 9. Amount of bail; guidelines.The judge who issued the warrant or
granted the application shall fix a reasonable amount of bail considering
primarily, but not limited to, the following factors:(a) Financial ability of the
accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty for
the offense charged; (d) Character and reputation of the accused; (e) Age and
health of the accused; (f) Weight of the evidence against the accused; (g)
Probability of the accused appearing at the trial; (h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required.
For purposes of recommending the amount of bail, the privileged
mitigating circumstance of minority shall be considered.
The court should also consider the bail bond guide issued by the
Department of Justice.
EXPLANATORY NOTE
28

Section 34 of RA No. 9344, otherwise known as Juvenile Justice and
Welfare Act of 2006" provides: For purposes of recommending the amount of
bail, the privileged mitigating circumstance of minority shall be considered.
Since this provision is procedural in character, it should be incorporated in the
Rules of Criminal Procedure.
The last paragraph of the proposed revision adopts the ruling in People
vs. Resterio-Andrade, G.R. No. 79827, July 3l, 1989, where it was ruled that in
addition to Section 9, Rule 114 of the Rules of Criminal Procedure, the court
should have considered the DOJ circular on bail bond guide.
SEC. 16. Bail, when not required; reduced bail or recognizance.-No bail
shall be required when the law or these Rules so provide.
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 thirty (30) days of
preventive imprisonment.
A person in custody for a period equal to or more than the minimum of
the principal penalty prescribed for the offense charged, without application of
the Indeterminate Sentence Law or any modifying circumstance, shall be
released on a reduced bail or on his own recognizance, at the discretion of the
court.
SEC. 16. Bail, when not required; reduced bail or recognizance.-No bail
shall be required when the law or these Rules so provide.
When a person has been in custody for a period equal to or more than the
possible maximum imprisonment prescribed for the offense charged or possible
maximum subsidiary imprisonment if the penalty prescribed by law is fine
only, 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 thirty (30)
days of preventive imprisonment.
Computation of preventive imprisonment for purposes of immediate
release shall be the actual period of detention with good conduct time
allowance, the entitlement of which must be established by accused: Provided,
however, That if the accused is absent without justifiable cause at any stage of
the trial, the court may motu proprio order the rearrest of the
accused: Provided, finally, That recidivists, habitual delinquents, escapees and
persons charged with heinous crimes are not entitled to good conduct
allowance.
A person in custody for a period equal to or more than the minimum of
the principal penalty prescribed for the offense charged, without application of
the Indeterminate Sentence Law or any modifying circumstance, shall be
released on a reduced bail or on his own recognizance, at the discretion of the
court.
29

EXPLANATORY NOTE
1. Possible maximum subsidiary imprisonment - If a detention
prisoner is charged with an offense punishable by fine only, it is not clear
whether he is entitled of the benefit of Section 16, Rule 114 of the Rules of
Criminal Procedure because the penalty is not imprisonment, and hence, there
is no possible maximum imprisonment which would be used in determining
when would the detention prisoner be released without prejudice to the
continuation of trial. Under the proposed revision, if the penalty prescribed is
fine only, a detention prisoner will be released upon undergoing a preventive
imprisonment equal to or more than the subsidiary imprisonment that the
court could possibly imposed in accordance with Article 39 of the Revised Penal
Code in case of insolvency.
2. Good conduct time allowance - The second paragraph of Section
16 is an implementation of Article 29 of the Revised Penal Code. However, RA
No. 10592 has amended this provision, which now provides:
Article29. Period of preventive imprisonment deducted from
term of imprisonment. X X X
Whenever an accused has undergone preventive
imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be sentenced
and his case is not yet terminated, he shall be released immediately
without prejudice to the continuation of the trial thereof or the
proceeding on appeal, if the same is under review. Computation of
preventive imprisonment for purposes of immediate release under
this paragraph shall be the actual period of detention with good
conduct time allowance: Provided, however, That if the accused is
absent without justifiable cause at any stage of the trial, the court
may motu proprio order the rearrest of the accused: Provided,
finally, That recidivists, habitual delinquents, escapees and persons
charged with heinous crimes are excluded from the coverage of this
Act. In case the maximum penalty to which the accused maybe
sentenced is destierro, he shall be released after thirty (30) days of
preventive imprisonment.
The proposed revision incorporates the amendment introduced by RA
No. 10592 to Article 29 of the Revised Penal Code. However, since the judge
could not take judicial notice of the entitlement of the detention prisoner to
good conduct time allowance under Article 97 of the Revised Penal Code, the
latter should present evidence or certification of entitlement to good conduct
allowance issued by his custodian for the court to consider it in computing the
preventive imprisonment for purpose of immediate release.
SEC. 20. Increase or reduction of bail.After the accused is admitted to
bail, the court may, upon good cause, either increase or reduce its amount.
When increased, the accused may be committed to custody if he does not give
bail in the increased amount within a reasonable period. An accused held to
answer a criminal charge, who is released without bail upon filing of the
complaint or information, may, at any subsequent stage of the proceedings and
whenever a strong showing of guilt appears to the court, be required to give
bail in the amount fixed, or in lieu thereof, committed to custody. (20a)
30

PROPOSED REVISION
SEC. 20. Increase or reduction of bail.After the accused is admitted to
bail, the court may, upon good cause, either increase or reduce its amount.
When increased, the accused may be committed to custody if he does not give
bail in the increased amount within a reasonable period. An accused held to
answer a criminal charge, who is released without bail upon filing of the
complaint or information, may, at any subsequent stage of the proceedings and
whenever a strong showing of guilt appears to the court, be required to give
bail in the amount fixed, or in lieu thereof, committed to custody. (20a)
If the offense charged is bailable and the accused fails to post bail after
more than one month from his apprehension, the court may upon motion
reduce bail for being excessive.
EXPLANATORY NOTE
Under the Constitution, excessive bail is prohibited. However, the
excessiveness of bail depends on the financial condition of the accused. A bail
of P1,000 may be excessive to a pauper but not to a millionaire. If a detention
prisoner could not post bail after more than a month of detention, it is
presumed that his financial standing prevents him from exercising his right to
bail. Hence, under the proposed revision the court taking into consideration
such circumstance may reduce bail upon motion for being excessive.
Of course the Supreme Court in Villasenor v. Abano, L-23599, September
29,1967, and People vs. Resterio-Andrade, G.R. No. 79827, July 3l, 1989 ruled
that
We are not to consider solely the inability of a defendant to
secure bail in a certain amount. This circumstance by itself does not
make the amount excessive. For, when an accused has no means of
his own, no one to bail him out, or none to turn to for premium
payments, any amount fixed no matter how small would fall into the
category of excessive bail; and, he 'would be entitled to be
discharged on his own recognizance.
That is why under the proposed revision use the word may, which
means that the court may or may not reduce bail for being excessive. In sum,
in addition to the inability of the accused to post bail, the court can also
consider other circumstance such as the nature of the offense charged in
deciding to reduce bail.
SECTION 2, RULE 116
SEC. 2. Plea of guilty to a lesser offense.At arraignment, the accused,
with the consent of the offended party and the prosecutor, may be allowed by
the trial court to plead guilty to a lesser offense which is necessarily included
in the offense charged. After arraignment but before trial, the accused may still
be allowed to plead guilty to said lesser offense after withdrawing his plea of
not guilty. No amendment of the complaint or information is necessary.
SEC. 2. Plea of guilty to a lesser offense.At arraignment, the accused,
with the consent of the offended party and the prosecutor, may be allowed by
the trial court to plead guilty to a lesser offense which is necessarily included
in the offense charged. After arraignment but before trial, the accused may still
31

be allowed to plead guilty to said lesser offense after withdrawing his plea of
not guilty. But plea to a lesser offense may be allowed even after the
prosecution has rested its case, if there is no sufficient evidence to establish
guilt of the crime charged. No amendment of the complaint or information is
necessary.
Any person charged under any provision of RA No. 9165, otherwise
known as Comprehensive Dangerous Drugs of 2002 regardless of the
imposable penalty shall not be allowed to avail of the benefit of plea-bargaining
under this provision.
EXPLANATORY NOTE
1. Withdrawal of plea of guilty Section 2, Rule, 116 of the 1985
Revised Rules of Criminal Procedure provides:
Sec. 2. Plea of guilty to a lesser offense. The accused, with
the consent of the offended party and the fiscal, may be allowed by
the trial court to plead guilty to a lesser offense, regardless of
whether or not it is necessarily included in the crime charged, or is
cognizable by a court of lesser jurisdiction than the trial court. No
amendment of the complaint or information is necessary. A
conviction under this plea, shall be equivalent to a conviction of the
offense charged for purposes of double jeopardy.
Since the old rule is silent as to what stage such plea bargaining can be
made, the Supreme Court in People vs. Villarama, G.R. No. 99287 June 23,
1992 and People vs. Mamarion, G.R. No. 137554, October 1, 2003 allowed plea
of guilty to a lesser offense even after the prosecution has rested its case as
long as there is no sufficient evidence to establish guilt of the crime charged.
However, the 2000 Revised Rules provides that the plea of guilty to a
lesser offense is only allowed before trial. To quote this provision as follows:
SEC. 2. Plea of guilty to a lesser offense.At arraignment,
the accused, with the consent of the offended party and the
prosecutor, may be allowed by the trial court to plead guilty to a
lesser offense which is necessarily included in the offense charged.
After arraignment but before trial, the accused may still be allowed
to plead guilty to said lesser offense after withdrawing his plea of
not guilty. No amendment of the complaint or information is
necessary.
With this new rule, the Villarama case and Mamarion case, which allowed
plea bargaining after the prosecution has rested its case, is not anymore
controlling. However, the Supreme Court in Daan vs. the Hon. Sandiganbayan,
G.R. Nos. 163972-77, March 28, 2008 has still recognized the principle in
Villarama case and Mamarion case notwithstanding that the new rule merely
allows plea bargaining before the trial. It was stated in Daan case that
Ordinarily, plea bargaining is made during the pre-trial stage
of the proceedings. X x x But it may also be made during the trial
proper and even after the prosecution has finished presenting its
evidence and rested its case.
32

The proposed revision adopts the principle in Villarama case, Mamarion
case and the Daan case. The principle in these cases is logical. If the accused is
charged with murder, but the prosecution failed to prove beyond reasonable
doubt a qualifying circumstance alleged in the information, it is only proper to
allow a plea of guilty to a lesser offense of homicide even if the prosecution has
rested its case. To rule otherwise is to prolong the proceedings, only to convict
the accused for the crime for which he at the middle of the trial was willing to
admit.
2. Plea bargaining of crime involving dangerous drugs - The proposed
version incorporates the rule against plea-bargaining under Section 23 of RA
No. 9165, which provides:
Section 23. Plea-Bargaining Provision. Any person charged
under any provision of this Act regardless of the imposable penalty
shall not be allowed to avail of the provision on plea-bargaining.
SEC. 11. Suspension of arraignment.Upon motion by the proper party,
the arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental
condition which effectively renders him unable to fully understand the charge
against him and to plead intelligently thereto. In such case, the court shall
order his mental examination and, if necessary, his confinement for such
purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at
either the Department of Justice, or the Office of the President; provided, that
the period of suspension shall not exceed sixty (60) days counted from the
filing of the petition with the reviewing office. (12a)
SEC. 11. Suspension of arraignment.Upon motion by the proper party,
the arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental
condition which effectively renders him unable to fully understand the charge
against him and to plead intelligently thereto. In such case, the court shall
order his mental examination and, if necessary, his confinement for such
purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at
either the Department of Justice, or the Office of the President; provided, that
the period of suspension shall not exceed sixty (60) days counted from the
filing of the petition with the reviewing office. After the expiration of period, the
trial court shall arraign the accused or deny the motion to defer arraignment.
Pendency of a motion for reconsideration filed with the Office of the
Prosecutor is not a ground to suspend the arraignment.
33

EXPLANATORY NOTE:
1. Expiration of 60 day period - Before, there was a debate whether the
60-day period of suspension of arraignment in Section11 (c), Rule 116 of the
Rules of Criminal Procedures is mandatory or directory. The present
jurisprudence sided with the interpretation that the same is mandatory. In
Samson vs. Daway, G.R. Nos. 160054-55, July 21, 2004,
While the pendency of a petition for review is a ground for
suspension of the arraignment, the aforecited provision limits the
deferment of the arraignment to a period of 60days reckoned from
the filing of the petition with the reviewing office. It follows,
therefore, that after the expiration of said period, the trial court is
bound to arraign the accused or to deny the motion to defer
arraignment.
The Supreme Court in Trinidad vs. Ang, G.R. No. 192898, January31,
2011 reiterated the principle in Daway case. The proposed revision
incorporates the Daway principle.
2. Motion for reconsideration of fiscals resolution - Section 11, Rule
116 fails to include a regulation on the effect of a motion for reconsideration of
the resolution of the prosecutors office on the arraignment of the accused.
Because of this silence, several practitioners are still insisting for the deferment
of the arraignment of the accused pending resolution of their motion for
reconsideration filed with the fiscals office.
In Ramiscal, Jr.vs. People, G.R. Nos. 172476-99, September 15, 2010, it
was held that:
If the filing of a motion for reconsideration of the resolution
finding probable cause cannot bar the filing of the corresponding
information, then neither can it bar the arraignment of the accused,
which in the normal course of criminal procedure logically follows
the filing of the information. Petitioner failed to show that any of the
instances (in Section 11, Rule 116 of the Rule of Criminal Procedure)
constituting a valid ground for suspension of arraignment obtained
in this case. Thus, the Sandiganbayan committed no error when it
proceeded with petitioners arraignment, as mandated by Section 7
of RA 8493.
Although what is involved in the Ramiscal case is proceeding in the
Sandiganbayan, the principle crafted therein should be incorporated in the
Rules of Criminal Procedure. What is sauce for the goose is also the sauce for
the gander.
SECTION 2, RULE 117
SEC. 2. Form and contents.The motion to quash shall be in writing,
signed by the accused or his counsel and shall distinctly specify its factual and
legal grounds. The court shall consider no ground other than those stated in
the motion, except lack of jurisdiction over the offense charged (2a)
34

SEC. 2. Form and contents.The motion to quash shall be in writing,
signed by the accused or his counsel and shall distinctly specify its factual and
legal grounds. The court shall consider no ground other than those stated in
the motion, except lack of jurisdiction over the offense charged.
The inclusion in a motion to quash information or complaint other
grounds aside from lack of jurisdiction over the person of the accused shall not
be deemed a voluntary appearance and submission to the courts jurisdiction.
EXPLANATORY NOTE
Filing pleadings seeking affirmative relief constitutes voluntary
appearance, and the consequent submission of one's person to the jurisdiction
of the court. Hence, accused or defendant cannot anymore question the
jurisdiction of the court over his person. However, there is no submission of his
person to the jurisdiction of the court in the case of pleadings whose prayer is
precisely for the avoidance of the jurisdiction of the court, which only leads to a
special appearance (Miranda vs. Tuliao, G.R. NO. 158763, March 31, 2006).
In criminal case, the rule on special appearance by raising lack of
jurisdiction over person of the accused is found in the case of Sanchez vs.
Demetrio, G.R. No. 111771-77, November 09, 1993, where the Supreme Court
stated:
The rule is that if the accused objects to the jurisdiction of the
court over his person, he may move to quash the information, but
only on that ground. If, as in this case, the accused raises other
grounds in the motion to quash, he is deemed to have waived that
objection and to have submitted his person to the jurisdiction of the
court.
However, special appearance in criminal cases, which does not constitute
submission to courts jurisdiction, is different from that in civil cases. There is
special appearance in a civil case by filing motions to dismiss on the ground of
lack of jurisdiction over the person of the defendant, whether or not other
grounds for dismissal are included.
The La Naval Drug Corporation vs. CA, G.R. No. 103200, August 31,
1994 elucidates the current view in our jurisdiction that a special appearance
before the court--challenging its jurisdiction over the person through a motion
to dismiss even if the movant invokes other grounds--is not tantamount to
estoppel or a waiver by the movant of his objection to jurisdiction over his
person; and such is not constitutive of a voluntary submission to the
jurisdiction of the court(Garcia vs. Sandiganbayan, G.R. No. 170122, October
12, 2009).
In order to conform to the ruling in La Naval, which was decided by this
Court in 1994, the former Section 23, Rule 14 concerning voluntary
appearance was amended to include a second sentence in its equivalent
provision in the 1997 Rules of Civil Procedure:
SEC. 20. Voluntary appearance. The defendant's voluntary
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant
shallnot be deemed a voluntary appearance.
35

(See NM Tothschild & Sons Limited vs. Consolidated Mining Company,
G.R.No. 175799, November 28, 2011)
To provide uniformity of the rules, the proposed revision seeks to
introduce the La Naval doctrine in criminal actions. The concept of jurisdiction
over the person vis a vis the rule on voluntary appearance in civil cases is the
same as that in criminal cases. Hence, the rule on special appearance in civil
cases should be made applicable to criminal cases.
SPLITTING A SINGLE CRIME
SEC. 13. Duplicity of the offense.A complaint or information must
charge only one offense, except when the law prescribes a single punishment
for various offenses. (13a)
PROPOSED REVISION
SEC. 13. Duplicity of the offense and splitting a single crime.A complaint
or information must charge only one offense, except when the law prescribes a
single punishment for various offenses.
If two or more complaints or informations are instituted on the basis of a
single crime, which is split into two or more crimes, the filing of the most
serious crime is available as a ground for the dismissal of the others. There is
splitting of a single crime when complaints or informations charge offenses,
which are components of a complex crime or special complex crime, or crimes,
one of which is an element of or an indispensable means to commit the other.
EXPLANATORY NOTE
Under Section 4, Rule 2 of the Rules of Civil Procedure, splitting a single
cause of action is prohibited. Accordingly, if two or more suits are instituted on
the basis of the same cause of action, the filing of one or a judgment upon the
merits in any one is available as a ground for the dismissal of the others. The
purpose of the rule is to avoid multiplicity of suits.
The proposed revision on splitting a single crime is the counterpart of the
provision of the Rules of Civil Procedure on splitting of a single cause of action.
This proposed provision is designed to help the courts unclog their dockets.
SECTION 3, RULE 117
SEC. 3. Grounds.The accused may move to quash the complaint or
information on any of following grounds:(a) That the facts charged do not
constitute an offense;(b) That the court trying the case has no jurisdiction over
the offense charged;(c) That the court trying the case has no jurisdiction over
the person of the accused;(d) That the officer who filed the information had no
authority to do so;(e) That it does not conform substantially to the prescribed
form;(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;(g) That the criminal
action or liability has been extinguished;(h) That it contains averments which,
if true, would constitute a legal excuse or justification; and (i) That the accused
has been previously convicted or acquitted of the offense charged, or the case
36

against him was dismissed or otherwise terminated without his express
consent. (3a)


SEC. 3. Grounds.The accused may move to quash the complaint or
information on any of following grounds:(a) That the facts charged do not
constitute an offense;(b) That the court trying the case has no jurisdiction over
the offense charged;(c) That the court trying the case has no jurisdiction over
the person of the accused;(d) That the officer who filed the information had no
authority to do so;(e) That it does not conform substantially to the prescribed
form;(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;(g) That the criminal
action or liability has been extinguished;(h) That it contains averments which,
if true, would constitute a legal excuse or justification; and(i) That the accused
has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express
consent.(j) That crime charged is a constituent of a complex crime or special
complex crime, the most serious component of which is charged in another
complaint or information, or the crime charged is an element of or an
indispensable means to commit another, which is charged in another
complaint or information.

EXPLANATORY NOTE

1. Res judicata and litis pendentia - If there is a violation of the rule on
a splitting of a single cause of action under Section 4 of the Rules of Civil
Procedure, the remedy of the defendant is to file a motion to dismiss on the
ground of litis pendentia if the other case containing the same cause of action
is still pending, or res judicata if there is already a final judgment in the other
case.

2. Res judicata in prison grey - Under Section 3, Rule 117 of the Rules
of Criminal Procedure, if there is splitting of a single crime, the remedy of the
accused is to file a motion to quash information on the ground of double
jeopardy, which is the counterpart of res judicata in Civil Procedure. That is
why double jeopardy is also called as res judicata dressed in prision grey.
However, the concept of litis pendentia has no equivalent in criminal
procedure. The proposed revision to Section 3, Rule 117 seeks to introduce in
the Criminal Procedure the counterpart of litis pendentia in Civil Procedure.
This provision supplements the proposed revised rule on splitting a single
crime under Section 13, Rule 112.

3. Litis pendentia in prison grey - Prior to the 2000 Revision of the
Rules of Criminal Procedure, one of the ground to quash information is that
when the accused has been previously convicted or in jeopardy of being
convicted or acquitted of the offense charged. Interpreting this provision,
Justice Florenz Regalado in his dissenting opinion in the case of People vs.
Pineda, G.R. No. 44205 February 16, 1993 stated:

Spelled out to the point of elemental details, said paragraph
(h) actually provides for two modes constitutive of separate grounds
for quashal of a second indictment for the same offense. Recasting
its provisions for greater clarity, the first mode allows quashal where
the accused has been previously convicted or acquitted of the same
offense with which he is again presently charged and in danger of a
37

second conviction. This would correspond, in civil procedure, to res
judicata as a ground for dismissal. The second mode stated in the
same paragraph contemplates the situation where the accused is
only in jeopardy or danger of being convicted in the first case, since
no judgment or final order has yet been rendered therein, and he is
now charged anew with the same offense. This is equivalent, in civil
case, to litis pendentia or auter action pendant, likewise a ground
for dismissal.

In connection with the concept of litis pendentia dressed in prision grey,
Justice Regalado wrote in his book, Remedial Law Compendium:

The Rules prohibits a duplicitous information and declares
the same to be quashable, but does not specifically provide for the
situation where a complex crime which should be properly charged
in a single information is made the subject of several informations
by charging each components crime thereof separately. It is
submitted that, under such situation and provided all other
requisites are present, the proper remedy is to move to quash the
other charges on the ground of double jeopardy.

However, in the case of People vs. Pineda, supra, the majority of the
Justices held that there can be no double jeopardy if both cases are still
pending. The 2000 Revision of the Rules of Criminal Procedure deleted the
phrase in jeopardy of being convicted to incorporate the Pineda doctrine.

This rule creates an irregular situation where the court would resolve the
problem in splitting complex crime or special complex crime at the stage of
rendering decision instead of at the early stage of the case such as upon filing
of information. In People vs. Legaspi, 92167-68, July 14, 1995, Supreme Court
ruled that accused cannot be convicted of special complex crime of robbery
with homicide constitutive of various crime alleged in two informations.
However, in People vs. Laog, G.R. No. 178321, October 5, 2011, the Supreme
Court convicted the accused for special complex crime of rape with homicide
despite the fact that the accused was charged with homicide and rape in two
separate informations.

The Supreme Court in the Laog case provides a solution to the problem
of splitting crime, and that is, to convict the accused of special complex crime
even if the components thereof are charged in two different informations.
However, the Laog case does not apply where one component of special
complex crime is cognizable by the Regional Trial Court while the other by the
first level court.

To avoid multiplicity of suits and to unclog the dockets of the courts it is
high time to adopt the concept of litis pendentia in prision grey as explained by
Justice Regalado. This is not anathema to the rule on double jeopardy. Litis
pendentia in prision grey and res judicata in prision grey as grounds for
quashing information have different legal foundations. The latter is an
implementation of the constitutional rule against double jeopardy while the
former is an implementation of the legislature intention to punish a complex
crime or special complex crime as a single crime.

Article 48 of the Revised Penal Code, which governs a complex crime, is
designed to favor the accused by providing a single penalty for plurality of
crimes. On other hand, the law prescribes a single penalty for two or more
38

crimes, which constitute a special complex crime. This is also called special
indivisible crimes since they are not subject to division. The intention of the
law in treating several crimes as one will be defeated if splitting thereof will
remain unregulated.

Litis pendentia in prision grey also includes a situation where a crime is
split into two or more crimes charged in different infromations although one is
just an element or an indispensable means to commit the other. It is a settled
rule that in this kind of a circumstance the latter absorbs the former. Hence,
there is only one crime, such as treason absorbing murder or robbery by force
upon thing absorbing use of false name.

In Celino vs. CA, G.R. No. 170562, June 29, 2007, it was held that
When the other crime involved is one of those enumerated under RA 8294,
any information for illegal possession of firearm should be quashed because
the illegal possession of firearm would have to be tried together with such other
offense, either considered as an aggravating circumstance in murder or
homicide,, or absorbed as an element of rebellion, insurrection, sedition or
attempted coup detat.

Rephrasing the substance of the ruling in Celino case, where the other
case involves rebellion, insurrection, sedition or attempted coup detat, the
information for illegal possession of firearm should be quashed since the
former absorbs the latter; where the other case is homicide or murder, the
information for illegal possession of firearm should be quashed since the latter
is just an aggravating circumstance of the former. Obviously, the ground for
the quashal of information is not double jeopardy or res judicata in prision grey
since there is no final judgment yet. Although the Supreme Court did not
describe the ground for quashing the information, it is submitted that the basis
of quashing the information for illegal passion of firearm is litis pendentia in
prision grey.

4. Most serious component Under the proposed revision, information
containing the most serious component of complex crime or special complex
crime is not quashable. That is why the pendency of case involving such most
serious component is the ground to quash the information for other
components. For example, if the special complex crime of robbery with rape is
split by charging to two informations, what is quashable is the information for
robbery, while information for rape, which is the most serious component, is
not.

SECTIONS 5 AND 6, RULE 117

SEC. 5. Effect of sustaining the motion to quash.If the motion to quash
is sustained, the court may order that another complaint or information be
filed except as provided in section 6 of this Rule. If the order is made, the
accused, if in custody, shall not be discharged unless admitted to bail. If no
order is made or if having been made, no new information is filed within the
time specified in the order or within such further time as the court may allow
for good cause, the accused, if in custody, shall be discharged unless he is also
in custody for another charge. (5a)

SEC. 6. Order sustaining the motion to quash not a bar to another
prosecution; exception.An order sustaining the motion to quash is not a bar to
another prosecution for the same offense unless the motion was based on the
grounds specified in section 3 (g) and (i) of this Rule. (6a)
39

PROPOSED REVISION

SEC. 5. Effect of sustaining the motion to quash.If the motion to quash
is sustained, the court may order that another complaint or information be
filed unless the motion was based on criminal extinction, double jeopardy or
splitting of a single crime. If the order is made, the accused, if in custody, shall
not be discharged unless admitted to bail. If no order is made or if having been
made, no new information is filed within the time specified in the order or
within such further time as the court may allow for good cause, the accused, if
in custody, shall be discharged unless he is also in custody for another charge.

SEC. 6. Order sustaining the motion to quash not a bar to another
prosecution; exception.An order sustaining the motion to quash is not a bar to
another prosecution for the same offense unless the motion was based on
criminal extinction, double jeopardy or splitting of a single crime.

EXPLANATORY NOTE

To understand Section 5 of Rule 117, one must co-relate this provision
with Section 6 of the same rule. To understand Section 6, one must read
Section 3 (g) or (i). To simply the rule, the proposed revision describes the
specific grounds of the motion to quash, which are excluded from rule on filing
another complaint and the bar rule. Splitting a single crime, a new concept
sought to be introduced in rules, is an additional ground in the exclusionary
clause.
SECTION 8, RULE 117
SEC. 8. Provisional dismissal.A case shall not be provisionally
dismissed except with the express consent of the accused and with notice to
the offended party.
The provisional dismissal of offenses punishable by imprisonment not
exceeding six(6) years or a fine of any amount, or both, shall become
permanent one (1) year after issuance of the order without the case having
been revived. With respect to offenses punishable by imprisonment of more
than six (6) years, their provisional dismissal shall become permanent two (2)
years after issuance of the order without the case having been revived.
SEC. 8. Provisional dismissal.A case shall not be provisionally
dismissed except with the express consent of the accused and with notice to
the offended party of the proceeding when the motion for provisional dismissal
is made. Provisional dismissal can also be made upon motion of the accused
and offended party pursuant to their compromise agreement entered into
during the mediation proceeding in the Philippine Mediation Center or Judicial
Dispute Resolution proceeding.
The provisional dismissal of offenses punishable by imprisonment not
exceeding six(6) years or a fine of any amount, or both, shall become
permanent after service of the order of dismissal on the public prosecutor who
has control of the prosecution without the criminal case having been revived.
With respect to offenses punishableby imprisonment of more than six (6) years,
40

their provisional dismissal shall become permanent two (2) years after service
of the order without the case having been revived.
A provisionally dismissed case may be revived by filing a motion for
revival in court which issued the order of provisional dismissal, by re-filing of
the information or by filling a new Information for the same offense or an
offense necessarily included therein.
EXPLANATORY NOTE
1. Notice of the proceeding when the motion is made - Because of the
phrase with notice to the offended party in the first paragraph of Section 8,
Rule 117, the Supreme Court People vs. Lacson, G.R. No. 149453, April 1,
2003 ruled that the application of the time bar rule under this provision
requires that the offended party is notified of the motion for a provisional
dismissal of the case. It submitted that this rule will just delay the disposition
of the case even if circumstances justify the immediate provisional dismissal
thereof.
Under the present rule, if the offended party fails to appear to testify at a
scheduled hearing for the third time and the return of the notice sent to him
shows that he is not anymore residing at the given address, the court cannot
immediately order a provisional dismissal upon motion of the accused since the
offended party must be notified of such motion. Under the proposed revision, if
notice is sent to the address of record of the offended party, he is considered
notified of the proceeding when the motion for provisional dismissal is made by
the accused on the ground of failure to prosecute. Hence, provisional dismissal
can be ordered on that day.
2. Provisional dismissal as part of settlement It is a basic rule that
criminal action cannot be the subject of compromise agreement, and thus, the
court should not recognize it. This principle is based on the doctrine of
separation of power. Since criminalization is a matter of legislation, the court
should not approve compromise agreement involving criminal liability so as not
to defeat the intention of the law to punish an act declared as criminal.
However, the power of Congress to criminalize an act includes the power
to allow parties to compromise criminal liability arising from such act. Thus,
under the Local Government Code, dispute involving offenses for which the law
prescribed a penalty of not more than one year or fine of not exceeding P5,000
can amicably settled by the Lupon ng Tagapamayapa.
With the unmanageable dockets of the judiciary, resort to out-of-court
resolution of disputes involving minor offenses such as through barangay
mediation, ADR, mediation by PMC, JDR or compromise agreement, is now
recognized. In Tam Wing Tak v. Makasiar, G.R. No. 122452, January 29, 2001, it
was held that With respect to the agreement between corporation and respondent to
amicably settle their difference (involving violation of BP Blg. 22), we find this resort to
an alternative dispute settlement mechanism as not contrary to law, public policy, or
public order. Efforts of parties to solve their disputes outside of the courts are looked on
with favor, in view of the clogged dockets of the judiciary.
In mediation or JDR proceeding, the offended party would not ordinarily
enter into a settlement of the case without monetary condition attached to it
and the accused would not ordinarily agree to pay him unless the criminal case
will be withdrawn. If the settlement of the civil aspect is on an installment
41

basis, the offended party will usually agree to withdraw the case upon full
payment of the monetary obligations assumed by the accused to settle the
matter. However, if the parties agreed to a provisional dismissal pending full
payment of the settlement amount, the court may not approve the same since
there is no procedural rule that allows it. The proposed revision, which permits
provisional dismissal based on compromise agreement, is intended to support
the purpose of mediation and JDR proceedings, and that is, the settlement of
cases through extrajudicial process.
3. Service of the order - Although the second paragraph of the original
rule of Section 8, Rule 117 states that the order of dismissal shall become
permanent one year after the issuance thereof without the case having been
revived, the Supreme Court in People vs. Lacson, supra, ruled that the
provision should be construed to mean that the order of dismissal shall become
permanent one year after service of the order of dismissal on the public
prosecutor who has control of the prosecution without the criminal case having
been revived. The public prosecutor cannot be expected to comply with the
timeline unless he is served with a copy of the order of dismissal.
The proposed revision adopts the Lacson rule on service of order of
dismissal to the public prosecutor.
4. Manner of revival - The original version of the rule fails to provide
the manner on how to revive a provisionally dismissed case within the required
period. In the case of Lacson, the Supreme Court ruled that the case may be
revived by the State within the time-bar either by the refiling of the Information
or by the filing of a new Information for the same offense or an offense
necessarily included therein. The proposed revision adopts the modes of revival
mentioned in the Lacson case and provides an additional manner of reviving
the case, and that is, by filing a motion in court which issued the order of
provisional dismissal.
SECTION 3, RULE 118
SEC. 3. Non-appearance at pre-trial conference.If the counsel for the
accused or the prosecutor does not appear at the pre-trial conference and does
not offer an acceptable excuse for his lack of cooperation, the court may
impose proper sanctions or penalties, (sec. 5, cir. 38-98)
PROPOSED REVISION
SEC. 3. Non-appearance at pre-trial conference.If the counsel for the
accused or the prosecutor does not appear at the pre-trial conference and does
not offer an acceptable excuse for his lack of cooperation, the court may
impose proper sanctions or penalties, (sec. 5, cir. 38-98)
Non-appearance of the private complainant or accused is not a ground to
postpone the pre-trial conference.
EXPLANATORY NOTE
The Rules of Civil Procedure provides the effect of the non-appearance of
plaintiff or defendant in a civil case at pre-trial conference. But the Rules of
Criminal Procedure is silent of the effect if the accused or private complainant
fails to appear at the pre-trial conference. The proposed revision seeks to
provide guidelines to the bench and the bar in case of non-appearance of a
party in a criminal case at the conference.
42

Under Section 4 of RA No. 8493, otherwise known as the Speedy Trial
Act of 1998, which is implemented by Section 3, Rule 118 of the Rules of
Criminal Procedure, counsel for the accused or prosecutor may be sanctioned
for failure to appear without acceptable excuse at the pre-trial conference.
However, there is no punitive effect on the non-appearance of the accused or
the private complaint at the conference. It seems that under the law and rule,
the presence of the accused or private complainant at the conference is not
mandatory. Hence, under the proposed revision their absence should not be a
cause for the resetting of the pre-trial conference as long as their counsels are
present. This rule is designed to expedite the disposition of cases.
SEC. 23. Demurrer to evidence.After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1)on
its own initiative after giving the prosecution the opportunity to be heard or (2)
upon demurrer to evidence filed by the accused with or without leave of court
If the court denies the demurrer to evidence filed with leave of court, the
accused may adduce evidence in his defense. When the demurrer to evidence is
filed without leave of court, the accused waives the right to present evidence
and submits the case for judgment on the basis of the evidence for the
prosecution.(15a)
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a non-extendible period
of five (5) days after the prosecution rests its case. The prosecution may oppose
the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence
within anon-extendible period of ten (10) days from notice. The prosecution
may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or by
certiorari beforejudgment, (n)
SEC. 23. Demurrer to evidence.After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1)on
its own initiative after giving the prosecution the opportunity to be heard or (2)
upon demurrer to evidence filed by the accused with or without leave of court
If the court denies the demurrer to evidence filed with leave of court, the
accused may adduce evidence in his defense. When the demurrer to evidence is
filed without leave of court, the accused waives the right to present evidence
and submits the case for judgment on the basis of the evidence for the
prosecution.(15a)
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a non-extendible period
of five (5) days after the prosecution rests its case. The prosecution may oppose
the motion within a non-extendible period of five (5) days from its receipt.
43

If leave of court is granted, the accused shall file the demurrer to
evidence within anon-extendible period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence within a similar period from
its receipt.
The court, in the exercise of its sound discretion, may require or allow
the prosecution to present additional evidence at its own initiative or upon a
motion after a demurrer to evidence is filed.
The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or by
certiorari before judgment.
EXPLANATORY NOTE
The fifth paragraph of the proposed revised Section 23, Rule 23 of the
Rules of Criminal Procedure is an incorporation of the principle in the case of
People vs. The Hon. Sandiganbayan and Imelda Marcos, G.R. Nos. 153304-05,
February 7, 2012, where the Supreme Court ruled:
The court, in the exercise of its sound discretion, may require
or allow the prosecution to present additional evidence (at its own
initiative or upon a motion) after a demurrer to evidence is filed. This
exercise, however, must be for good reasons and in the paramount
interest of justice. The court may require the presentation of further
evidence (1) if its action on the demurrer to evidence would patently
result in the denial of due process; (2) if it is newly discovered, (3) if
it was omitted through inadvertence or mistake, or (4) if it is
intended to correct the evidence previously offered.
SECTION 4, RULE 120
SEC. 4. Judgment in case of variance between allegation and proof.When
there is variance between the offense charged in the complaint or information
and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged
which is included in the offense proved. (4a)
PROPOSED REVISION
SEC. 4. Judgment in case of variance between allegation and proof.When
there is variance between the offense charged in the complaint or information
and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense
charged or proved, whichever is the lesser offense.
EXPLNATORY NOTE
One of the objectives of revising the Rules of Criminal Procedure is to
simply it and to make it more understandable. The proposed revision merely
rephrases the variance rule under Section 4, Rule 120 for the purpose of
simplification.
PROPOSED INSERTION OF SECTION 10 IN RULE 120
SEC. 10. Implementation of penalty of fine - Where the judgment of
conviction includes pecuniary liabilities of the accused, and his properties are
not sufficient for the payment thereof, the same shall be shall be met in the
44

following order: (1) The reparation of the damage caused; (2) Indemnification of
consequential damages; (3) The fine; and (4) The costs of the proceedings.
If the sheriff of the court that renders judgment certifies that no
properties of the accused can be found to satisfy his pecuniary liabilities
including the penalty of fine, the court upon motion or motu proprio shall
conduct a hearing to determine the insolvency of the accused. In the hearing,
the accused has the burden to prove his solvency. Upon finding that the
convict has no property with which to meet the penalty of fine listed as number
3 in the order of payment, the court shall order the accused to serve subsidiary
imprisonment specifying the period thereof computed in accordance with the
law. Such order is not appealable.
EXPLANATORY NOTE
When the properties of the accused are not sufficient to satisfy the
judgment finding the accused pecuniary liability, judges are adopting different
procedures in implementing their decision. To provide procedural uniformity,
the proposed revision seeks to incorporate a provision in the rules on how to
execute a decision imposing the penalty of fine in case of insolvency of the
accused.
The first paragraph of the proposed Section 10, Rule 120 is an
implementation of Article 38 of the Revised Penal Code, which provides:
ARTICLE 38. Pecuniary liabilities. Order of payment. In
case the property of the offender should not be sufficient for the
payment of all his pecuniary liabilities, the same shall be met in the
following order: 1. The reparation of the damage caused. 2.
Indemnification of consequential damages. 3. The fine. 4. The costs
of the proceedings.
The second paragraph on the other hand is an implement of Article 39 of
the Penal Code as amended by RA No. 10159, which is quoted as follows:
Art. 39. Subsidiary Penalty. If the convict has no property
with which to meet the fine mentioned in paragraph 3 of the next
preceding article, he shall be subject to a subsidiary personal
liability at the rate of one day for each amount equivalent to the
highest minimum wage rate prevailing in the Philippines at the time
of the rendition of judgment of conviction by the trial court, subject
to the following rules:1. If the principal penalty imposed be prision
correctional or arresto and fine, he shall remain under confinement
until his fine referred in the preceding paragraph is satisfied, but
his subsidiary imprisonment shall not exceed one-third of the term
of the sentence, and in no case shall it continue for more than one
year, and no fraction or part of a day shall be counted against the
prisoner.2. When the principal penalty imposed be only a fine, the
subsidiary imprisonment shall not exceed six months, if the culprit
shall have been prosecuted for a grave or less grave felony, and
shall not exceed fifteen days, if for a fight felony.3. When the
principal penalty imposed is higher than prision correctional, no
subsidiary imprisonment shall be imposed upon the culprit.4. If the
principal penalty imposed is not to be executed by confinement in a
penal institution, but such penalty is of fixed duration, the convict,
during the period of time established in the preceding rules, shall
continue to suffer the same deprivations as those of which the
principal penalty consists.5. The subsidiary personal liability
45

which the convict may have suffered by reason of his insolvency
shall not relieve him from the fine in case his financial
circumstances should improve.
SECTION 6, RULE 122
SEC. 6. When appeal, to be taken.An appeal must be taken within
fifteen (15) days from promulgation of the judgment or from notice of the final
order appealed from. This period for perfecting an appeal shall be suspended
from the time a motion for new trial or reconsideration is filed until notice of
the order overruling the motion has been served upon the accused or his
counsel at which time the balance of the period begins to run.
PROPOSED VERSION
SEC. 6. When appeal, to be taken.An appeal must be taken within
fifteen (15) days from promulgation of the judgment or from notice of the final
order appealed from. If motion for new trial or reconsideration is filed, the
accused has a fresh period of 15 days within which to appeal, counted from
receipt of the order denying a motion for a new trial or motion for
reconsideration.
EXPLANATORY NOTE
Neypes rule In Neypes vs. CA, G.R. No. 141524, September 14, 2005,
the Supreme Court modified the rule in civil cases on the counting of the 15-
day period within which to appeal. The Court categorically set a fresh period of
15 days from a denial of a motion for reconsideration within which to appeal.
In Yu vs. Samson-Tatad, G.R. No. 170979, February 9, 2011,the
Supreme Court applied the Neypes principle or the fresh period rule to the
period of appeal in criminal cases. It was held that the raison dtre for the
"fresh period rule" is to standardize the appeal period provided in the Rules and
do away with the confusion as to when the 15-day appeal period should be
counted. While Neypes involved the period to appeal in civil cases, the Courts
pronouncement of a "fresh period" to appeal should equally apply to the period
for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of
Criminal Procedure
Hence, the balance of period rule in Section 6 of Rule 122 of the Revised
Rules of Criminal Procedure is not any more controlling. The proposed version
adopts the Neypes rule.

Proposed Revision On The Rules of Criminal Procedure Feb 5

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Proposed Revision On The Rules of Criminal Procedure Feb 5

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PROPOSED REVISION ON THE RULES OF CRIMINAL PROCEDIURE FEBRUARY 3, 2014

BY JUDGE MARLO B. CAMPANILLA

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