Intro: Just make sure that that chair DOES. NOT. BLOCK.

THE. DOOR.
Maam showing a sample of an Information:
This is an Information signed by the prosecutor. If you look at
the date, its October 29, 2008. And then the prosecutor sent
it to the City Prosecutor (CP). And how long does the City
Prosecutor have? 10 days, normal. On November 23, it was
approved by the CP. The part below is a certification. So aside
from the information itself, the prosecutor has to certify. And
this certification must be subscribed and sworn to before
another prosecutor. How many signatures do we have here?
We have the signature of the investigating prosecutor (IP), CP,
and of another prosecutor to whom the IP sworn to.
Now we have this case where there was an allegation there
that the information was not sworn to. Ito yun ______? But
the certification has to be sworn to. But theres also a case
which says walang certification, is it a fatal defect? Its not
really a fatal defect. It will not invalidate the information.
What case was that? [No one answered] Try to know
which case is that, bahala kayo dyan.
Lets go to the cases:
Artillero v. Casimiro: Here, the complainant has no right to
file a reply. Its not there in the rule. The complainant is not
entitled to a copy of the resolution of the prosecutor but the
complainant is entitled to a copy of the counter-affidavit. It is
there in Rule 112 Sec. 3.

Callo-Claridad v. Esteban:
Issues here are what are the 3 purposes of Preliminary
Investigation.
Three purposes of a preliminary investigation:
(1) to inquire concerning the commission of a crime and the
connection of the accused with it, in order that he may be
informed of the nature and character of the crime charged
against him, and, if there is probable cause for believing him
guilty, that the State may take the necessary steps to bring
him to trial;
(2) to preserve the evidence and keep the witnesses within
the control of the State; and
(3) to determine the amount of bail, if the offense is bailable.

Here, the prosecution will recommend the amount of bail,

500k, 200k, etc. So, (Maam showing the sample information)
if you look at this information at the bottom you see, Bail not
required because this is a B.P. 22 case. So, it is during PI
when the City Prosecutor would determine magkano kaya ang
bail nito.

Page

July 20, 2015

Lets go to the issue here (Callo-Caridad case). What if there

were affidavits that are unsworn? Diba the affidavits must be
subscribed and sworn to before an authorized person. Here,
some were not sworn. What is the effect? Can they be
appreciated by the court? Kunyari, there were 10 witnesses,
then out of this 10, only 7 are sworn.
Answer: The lack of the requisite certifications from the
affidavits of most of the other witnesses was in violation of
Section 3, Rule 112 of the Rules of Court, which pertinently
provides thusly:
Section 3. Procedure. The preliminary investigation shall be
conducted in the following manner:
(a) The complaint shall state the address of the respondent
and shall be accompanied by the affidavits of the complainant
and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to
before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a
notary public, each of who must certify that he personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
The requirement for the certifications under the aforecited
rule was designed to avoid self-serving and unreliable
evidence from being considered for purposes of the
preliminary investigation, the present rules for which do not
require a confrontation between the parties and their
witnesses; hence, the certifications were mandatory.

to before a competent officer so as to ensure that the

affidavits supporting the factual allegations in the Complaint
have been sworn before a competent officer and that the
affiant has signed the same in the formers presence declaring
on oath the truth of the statement made considering that this
becomes part of the bases in finding probable guilt against the
respondent.

Arroyo v. DOJ:
Gloria Arroyo and Abalos were recommended to be subjected
to PI based on the evidences gathered by the fact finding
team and was submitted to the Joint Committee of COMELEC
and DOJ, which is conducting the PI. This is a criminal case
filed pursuant to Ominibus Election Code. Mike Arroyo insists
that the DOJ has no right to conduct PI as the right to conduct
PI is only when deputized by the COMELEC but DOJ cannot
exercise concurrent jurisdiction with the COMELEC.
Issue: Can the DOJ acquire jurisdiction in conduction PI in
election cases? YES
Held: R.A. 9369 provides the COMELEC and other prosecuting
arms of the government of such concurrent jurisdiction to
investigate and prosecute election offenses. So in other
words, it is the Comelec that has the authority to conduct PI
under BP 881 and this amendment by Section 43 of RA No.
9369, amending Section 265 of BP 881, here the Comelec and
other prosecuting arms of the govt. such as the DOJ now
exercise concurrent jurisdiction in the prosecution and
investigation of election offenses.
Remember what we discussed yesterday with regard to
election cases? The COMELEC according to Margarejo vs.
People, in BP 881, prosecutoring arms have a continuing
authority. No need of deputization. They have continuing
authority until revoked by the Comelec. Under this new law
RA 9369, they have concurrent jurisdiction, its not exclusive
na for the Comelec.

This is so because the rules on preliminary investigation does

not require a confrontation between the parties.

So the joint preliminary investigation also serves to maximize

the resources and manpower of both the Comelec and the
DOJ for the prompt disposition of the cases.

Because, di ba, what did we talk about? It is the prosecutor

who will make _____? The parties cannot confront each other.
Confrontation is done in cross-examination. Here, its only PI
no confrontation yet that is why the affidavits is sworn. That
what he states in the affidavit is true of his own personal
knowledge. Hindi imbento.

Now what about Gloria Arroyo, whats the issue with respect
to her?

Preliminary investigation is ordinarily conducted through

submission of affidavits and supporting documents, through
submission of affidavits and supporting documents, through
the exchange of pleadings. Thus, it can be inferred that the
rationale for requiring the affidavits of witnesses to be sworn

Gloria contends she was deprived of her procedural rights in

the PI when she was denied 10 day-extension after she
received the documents to submit her counter-affidavit. Was
she deprived of her right? NO. The Rule says, the respondent
submit her counter-affidavit and other contravening evidence
within 10 days of receipt of the subpoena. It is settled that

Now what are the instances where the investigator allow or

grant motions for request for extension on time? First, when
the interest of justice demands that respondent be given
reasonable time or sufficient opportunity to engage the
services of counsel. Sabi ng SC may lawyer na si Arroyo.
Second, examine voluminous records submitted in support of
the complaint or undertake research on novel, complicated or
technical questions or issues of law and facts of the case. In
other words, it is discretionary on the part of the Prosecution
whether or not to allow the extension. So here, the Joint
Committee, they refused. According to the SC it is
discretionary because the rules says, shall. 10 days lang.
Jinggoy Estrada vs. Bersamin (Jan. 21, 2015) report on this
tomorrow. Lets go to Sec. 4 cases.
Webb vs. Judge De Leon:
NBI filed a complaint before DOJ charging Hubert Webb and 8
of rape with homicide. The DOJ panel of prosecutors found
probable cause and recommended the filing of information.
Webb assails the validity of the resolution contending that the
DOJ panel of prosecutors did not clarificatory hearings in
relation to the inconsistencies in the witnesses of NBI.
Issue: WON DOJ panel of prosecutors committed an error in
finding prob. cause without conducting clarificatory hearing
Held: Probable cause is a reasonable ground to believe that
a crime has been committed and that the accused is probably
guilty thereof. A finding of probable cause merely binds over
the suspect to stand trial. It is not a pronouncement of guilt.
Considering this low quantum of evidence, the DOJ panel of
prosecutors did not commit an error. It is in the sound
discretion of the investigator WON he will conduct a
clarificatory hearing.
Suarez Commentary: Why is it discretionary? Where in the
rule says it is discretionary, with respect of the clarificatory
hearing? Kanina, were talking about the extension of time,
now, the clarificatory hearing. Answer: Sec. 3 (e) of Rule 112
states: If the investigating officer believes that there are
matters to be clarified, he may set a hearing to propound
clarificatory questions to the parties or their witnesses x x x
The parties are not the ones who have to clarify, its the
investigating officer. In this case, it was the panel of
prosecutors. They did not have to clarify anything as they
already found probable cause. Thus, no violation to the right
of the respondent. Kasi nga, may ang nakalagay.

Dumlao vs. Judge Ponferada:

Page

the use of the word shall, which is a word of command,

underscores the mandatory character.

Atty. Molina here was charged of multiple murder. They

sought the review of the resolution of the prosecution before
the DOJ. The Sec. of Justice reversed the resolution of the
prosecutor and ordered him to move for the dismissal of the
complaint. As a consequence thereof, J. Ponferrada dismissed
the complaint. Dumlao et.al insist that the Sec. of Justice no
longer has jurisdiction to entertain a petition for review once
the case has already been filed before the court citing the
case of Crespo v. Mogul.
Issue: WON the Sec. of Justice has jurisdiction
Held: Yes. Under RA 5180, in connection with Rule 112,
Section 4 of the Rules of Court, the Justice Secretary is vested
with the power to review resolutions of the provincial, city
prosecutor or chief state prosecutor. He has the power to reevaluate the position taken by his subordinates in a case.
Corollary to this power, he may also direct the public
prosecutor to dismiss or cause the dismissal of the complaint
or information.
The filing of a complaint or information in court does not
prevent the Justice Secretary from exercising his review
power. Neither can such complaint or information deter him
from ordering the withdrawal of the case. As a matter of fact,
in Crespo, we declared that the public prosecutor (as the
Justice Secretarys subordinate) may still opt to withdraw the
Information either upon instruction of the Justice Secretary or
for purposes of reinvestigation.
What was the issue in relation to Crespo case? Did the Judge
rightfully dismiss the information upon motion of the
prosection?
Answer: In relation to this, Crespo merely laid down the rule
that, while the Secretary of Justice has the power to alter or
modify the resolution of his subordinate and thereafter direct
the withdrawal of a case, he cannot, however, impose his will
on the court. The determination of the case is within [the
courts] exclusive jurisdiction and competence.
The records without doubt reveal that before the motion was
granted, Judge Ponferrada required petitioners and private
respondents to file their respective memoranda or comments.
He made his own assessment and evaluation of the evidence
on record. Thus, it is not correct to say that Judge Ponferrada
had absolutely nothing before him or that he blindly adopted
the position of the Justice Secretary.
Suarez Commentary: Here, the prosecutor found probable
cause. What goes with the finding of prob cause? The
issuance of a resolution and the information. Now, there are
times, the information will stand by because there is a petition
filed before the SOJ. So sabi ng prosecutor, ay mamaya na
tayo magfile ng information kasi baka ma-reverse tayo ni
boss. But there are times, syempre the pressure coming from

the complainant. So the information is already filed in court

and that was exactly what happened here. There was a
pending information filed in court and then after the info was
filed in court, saka pa lang nag petition for review. Can this be
done by the accused? Yes! Because the Sec. of Justice (SOJ)
can review the findings of the prosecution. Pwede! That is the
right given to the SOJ as the superior. However, because the
information is already in court, the landmark Crespo case says
it is under now the courts authority. In other words, the
prosecutor cannot withdraw. Prosecutor cannot say, excuse
me Your Honor, bawiin namin kasi sabi ni SOJ. No! The
prosecution has to file this motion, and when you file the
motion, it is discretionary. The motion can be granted or
denied. The court has options. It is not obliged to grant.
Because it is now under the courts authority, no, the SC
emphasized that judges should already exercise their
discretion before dismissing the information based on a
motion.
Citing Crespo: [O]nce a complaint or information is filed in
Court any disposition of the case as its dismissal or the
conviction or acquittal of the accused rests [on] the sound
discretion of the Court
First Womens Credit v. Baybay
Tayao et al was charged for falsification of private document
and grave coercion. The investigating prosecutor found
probable cause issued in his resolution which was approved by
the City Prosecutor. However, the findings of the City Pros was
reversed by the Sec of Justice. Due to this, Tayao et al now
filed a motion to withdraw the case. The MeTC granted. The
First Credit questioned the decision alleging that the lower
court failed to comply with its judicial mandate to make an
independent evaluation and assessment of the evidence on
record.
ISSUE: WON lower court committed and error
HELD: No. SC said the trial court should no rely merely on
the findings of the Sec of Justice. Instead, it must conduct its
own evaluation. In this case, the MeTC was able to do so. The
trial judge need not state with specificity or make a lengthy
exposition of the factual and legal foundation relied upon by
him to arrive at his decision. It suffices that upon his own
personal evaluation of the evidence and the law involved in
the case, he is convinced that there is no probable cause to
indict the accused.
Suarez Commentary: The judge doesnt have to explain
specifically. The judge, HE is convinced himself that there is
no probable cause. Hindi yung ah, the Sec of Justice is
convinced, convinced na rin ako. He must take his own
personal evaluation.

Wilfredo Cruz filed a complaint of BP 22 against his aunt for

issuing a worthless check. He filed the case before the office
of the prosecutor. PI was conducted. It turned out from the PI
that there was already payment of the check. So the Assistant
City Prosecutor recommended the dismissal of the case which
was affirmed and adopted by the City Prosecutor. Then,
Amanda Cruz filed a petition for review but the Sec of Justice
adopted the dismissal of the case. Amanda Cruz again filed an
appeal before CA. The CA found that an information must be
filed, so it directed the Sec of Justice to file the information.
Issue: WON the CA committed an error in ordering the Sec of
Justice in filing the information
Held: Yes. Here, the prosecutors were one in concluding that
petitioner did not commit the offense charged. Thus, there is
no reason for filing the information.
Suarez Commentary: What I want to come out of here in
this case is that PI is done by the executive department the
prosecution or the Sec. of Justice. If the SOJ, after reviewing
all the documents, determines there is no probable cause,
pakialam ng CA dyan. Can the CA order the Sec. of Justice?!
Its not there in Section 4!! Wala! (sorry lang gud Maam kung
wala. Way sukoay. :3)
It is the SOJ who has the last say. Yung sinabi mo na appeal,
you cannot appeal! We already talked about that, YOU
CANNOT APPEAL the SOJs decision or motion. You have to file
a petition for certiorari invoking grave abuse of discretion. But
in this case, the SC said there was no reversal within the
executive [branch]. How come the CA can set orders?

Tolentino vs. Paqueo:

State Prosecutor Tolentino filed an Information charging
private respondent Benedict Dy Tecklo, for violation of Sec. 22
(a) in relation to Sec. 28 (e) of Republic Act No. 8282 (Social
Security Act of 1997) for failing to remit the premiums due for
his employee to the Social Security System despite demand.
The information contained the certification of State Pros
Tolentino alleging among others that the filing of the
information was with the prior authority and approval of the
Regional State Pros. Tecklo filed a motion to quash on the
ground that Tolentino does not have the authority to
prosecute as he is not clothed to file the information to
commence the prosecution. According to Tolentino, he has
been designated by the Regional State Pros as a special
prosecutor SSS cases. RTC found that Tolentino has no prior
written authority issued by the City Pros, which is a violation
of Section 4 Rule 112
Issue: WON Tolentino has the authority to file information

Held: No. Both the old and the new rules of criminal
procedure couched the procedure in negative terms making it
mandatory importing that the act shall not be done otherwise
than designated. No complaint or information may be filed or
dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman
or his deputy. The functions of the Regional State Prosecutor
showed that they do not include that of approving the
Information filed or dismissed by the investigating prosecutor.
He is not among those officers that is allowed to do so. And
since Tolentino failed to comply with Sec. 4, Rule 112, it is a
ground for the ground of quashal

Page

Cruz vs. Cruz:

Suarez Commentary: It is one thing to be authorized to

conduct the investigation. Does the Chief State Pros can
authorize [Tolentino to investigate]? Wala mang problema
yaaaannn. It is the filing. You cannot file without the approval
of the head of the office. Even if you are the Regional State
Pros, and you are answerable to the Chief State Pros, but if
you are in a city, the head of the office is the City State
Prosecutor. Sinong nagbigay ng approval? The regional state
pros who is not head of the office. If you look at Section 4,
who are the head of office? The provincial, city, chief state
prosecutors, the Ombudsman in relation..Walang nakalagay
na regional. What should have been done is to get the
approval of the City Pros of Naga [the place of the Tolentino
case], before filing the information in court. Okay?
The
designation of
State
Prosecutor
Tolentino
to
investigate, file this information if the evidence warrants, and
to prosecute SSS cases in court does not exempt him from
complying with the provision of the third paragraph of [Sec. 4
of] Rule 112 of the Revised Rules on Criminal Procedure, that
no complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the Provincial or City Prosecutor or Chief State
Prosecutor or the Ombudsman or his deputy
Thats procedure! You have to follow..

Summerville vs. Eugenio

Summerville filed a complaint for unfair competition against
Co before the City Prosecutor of Manila. The latter issued a
resolution recommending the prosecution of Co, then filed an
information. The arraignment was set but Co filed a petition
for review before the SOJ. The SOJ upheld the resolution of
the City Pros. But Co filed Motion for Reconsideration. The SOJ
filed a resolution without any ruling saying that the case
would be further reviewed. Arraignment pushed through. One
year after, SOJ filed a resolution dismissing both the complaint
of Summerville and counter claim by Co. In relation to this,
City Prosecutor filed a motion for withdrawal before the RTC.
As a result, judge issued an order granting withdrawal. This
order was contested by Summerville.

Suarez: After the dismissal of Judge Eugenio of RTC, what

happened to SOJ? Reporter: After the dismissal, Summerville
filed a motion for reconsideration with the DOJ. This time,
there was a new Sec of Justice. The new Secretary reversed
the earlier decision of the old Sec. Now, there was a motion
again by the prosecutor reinstating the information for unfair
completion. Now Judge Eugenio denied on the ground of
double jeopardy.
Issue: WON the order of withdrawal by Judge Eugenio is
valid.
Held: NO. Citing the Crespo case, once the information is filed
in court, the discretion lies in the court. However, it is not
without restriction. The trial court is not bound to adopt the
resolution of the Sec. of Justice since it is mandated to
independently evaluate or assess the merits of the case.
Reliance alone on the resolution of the Secretary of Justice
would be an abdication of the trial courts duty and jurisdiction
to determine a prima facie case.
The SC said that Judge E. merely adopted the resolution of
the Sec. of Justice.
Suarez Commentary: So this is an example of a case where
the Judge blindly followed the recommendation of the Sec. of
Justice. Judge granted the motion to withdraw, that knowing
na may motion for reconsideration filed before the Sec. of
Justice. And the Secretary reversed! What happened? There is
a reinstatement. But Judge E said no more, double jeopardy!
Was there a double jeopardy? No! Because the dismissal was
a nullity. This failure of Judge Eugenio to independently
evaluate and assess the merits of the case against the
accused violates the complainants right to due process

Soriano vs Marcelo
Assistant City Prosecutor Balasbas issued a Resolution
recommending that Mely Palad bank examiner of the Bangko
Sentral ng Pilipinas, be charged in court with Falsification of
Public Documents. City Prosecutor approved. Palad filed a
Motion to Re-Open Case on the ground that she was not given
a copy of the subpoena or any notice regarding the complaint
filed against her. City Pros approved Palads motion so
Balasbas issued a subpoena setting the case for investigation.
Because of this, Soriano the complainant, filed a criminal case
against Balasbas alleging that he committed gross inexcusable
negligence and bad faith for re-opening the case.
Issue: WON an investigating prosecutor can re-open the
case.
Held: Balasbas, as investigating prosecutor, had no power or
control over the final disposition of Palads motion to reopen
the case. Conducting a preliminary investigation for the

In this case, because the motion of reopening the case was

approved by his superior, he did not commit inexcusable
negligence.
Suarez Commentary: When the investigating prosecutor
submits his findings to the City Prosecutor, the latter does not
have to approve it. The City Pros can say your investigation is
not enough! Re-open it, re-investigate it. Thats exactly what
was ordered and Balasbas just followed it. No violation of any
of the laws.
July 21, 2015

Section 12 bolsters the mandatory application of Section 7.

Section 7 is clear and categorical when it stated that the DOJ
shall not give due course to the petition for review when the
accused has already been arraigned. Section 12 is an
enumeration of actions of which the Secretary of justice may
take considering the petition for review. He may affirm,
reverse, modify or dismiss motu proprio or by reason of
several grounds the petition. The court also noted that if it
would be given directory application, then Section 12 would
be contrary to the legislative intent of the circular itself which
is the speedy disposition of cases.

Issue: WoN the DOJ may take cognizance of a petition for

review after the arraignment?

Plopinio filed administrative and criminal charges against Atty.

Carino. In the meantime, Atty. Carino applied for clerk of
court of the RTC. She filled up an application sheet with a
question Have you ever been formally charged? she
answered No. It was because of this that Plopinio filed an
admininstrative case against Carino alleging that Carino did
not disclose the previeous charges that were already filed
against him.
Issue: What does the term formally charge mean? Won
Carino has been formally charged?No.

(The phrase which makes this provision confusing is He (the

judge) may immediately dismiss the case if he fails to find
probable cause. Totally against the rule that it is for the
prosecutor to determine probable cause to hold the accused
for trial. This is supposed to be probable cause for the
issuance of warrant of arrest. By giving the judge the power
to dismiss, it is like giving him the authority to determine
probable cause to hold the accused for trial)
Procedure:
1.
2.
3.
a.
b.
4.

the information is filed before the judge

he shall personally evaluate the resolution of the prosecutor
and its supporting evidence within 10 days.
The court will determine whether to issue a
Warrant of arrest; or
Commitment order
If he finds probable cause, he shall issue a warrant of arrest
or commitment order
The judge has a 10 day period to either dismiss, or issue a
warrant or commitment order. If the judge orders the
prosecutor to present additional evidence, then the issue must
be resolved within 30 days.
This provision was Section 6 of the old rule.

In criminal cases, the determination of whether a person

deemed to have been formally charged is found in section 4
Rule 112 of the RROCP. Under this section, if the investigating
officer finds probable cause to hold the accused liable, then he
will be prepared a resolution and an information. The officer
should submit a report to his superior officer which may be
the provincial or city prosecutor, the chief state prosecutor,
the ombudsman or his deputy.
3 par. Of Section 4 also expressly states that no complaint or
information may be filed by investigation officer without the
prior written approval of the city or prov. Prosecutor, the chief
state prosecutor, the ombudsman or his deputy.
rd

Rulling: No. there are two conflicting provisions in this case.

One is that of Section 7 of DOJ Circular 70 and Section 12 of
said circular. Section 7 uses the word shall in stating that
the Secretary of Justice may shall not give due course to
petitions for review when the accused has already been
arraigned. However, in Section 12 the provisions uses the

Under Sec. 5, we meet the 2nd kind of probable cause. This is

determined by the judge.

What happens if you are arraigned later? It does not matter.

The case will continue. The important thing is the petition is
filed before arraignment.

SECTION 4

Abalos filed a complaint for estafa against Adasa. The office of

the city prosecutor issued a resolution finding probable cause.
Upon the motion of Adasa, a reinvestigation was conducted
but still, the office of the city prosecutor appealed the
resolution. Subsequently, Adasa was arraigned where he
pleaded not guilty. She filed a petition for review before the
DOJ. DOJ reversed and set aside the resolution of the City
Prosecutor and direct the latter to withdraw the resolution
filed before the court.

SECTION 5

If you are the accused, make sure that you file the petition for
review before you are arraigned.

Plopinio vs. Cario AM P-08-2458

Adasa vs. Abalos GR No. 168617

That is why during PI, the person that is charged with the
complaint is not called the accused but merely a respondent.
That is why the respondent is not required to take mugshots.

Take note: if the accused has already been arraigned, the DOJ
under its own rules cannot and should not take cognizance of
the petition for review.

Rule 112

If the accused questions the finding of probable cause by the

prosecutor, he may file a Petition for review before the
Secretary of justice. Once the secretary of justice is reviewing
the resolution of the prosecutor being questioned by the
accused, the court proceedings may continue.

Therefore, it is only upon the issuance of the resolution

finding probable cause by the investigating officer and the
subsequent filing of the information that the respondent will
be considered formally charged and will be held as an
accused.

word may in enumerating the grounds which the DOJ may

dismiss the petition. One of the most important is the fact of
arraignment.

Page

purpose of determining whether there exists probable cause

to prosecute a person for the commission of a crime, including
the determination of whether to conclude, reopen or dismiss
the
criminal
complaint
subject
of
the
preliminary
investigation, is a matter that rests within the sound
discretion of the provincial or city prosecutor. This is clear
from the provision of Section 4, Rule 112 of the Revised Rules
on Criminal Procedure which specifically states that no
complaint or information may be filed or dismissed by an
investigating fiscal without the prior written authority of the
provincial or city fiscal or chief state prosecutor or the
Ombudsman or his deputy.

In Brion v. Ruiz, it involves the old section 5 when judges

were allowed to conduct PI. Just pretend that it was the
prosecutor who conducted the PI.
Brion v. Ruiz
An information was filed against Brion for grave threats. He
questions the issuance of warrant of arrest by the judge of
MCTC before judge conducted the preliminary investigation.
He said that he only received the subpoena after the issuance
of warrant of arrest.
Ruling. According to Section 6, of the old Rules of Criminal
Procedure, the judge may still issue a warrant of arrest

In determining this kind of probable cause, what should the

court do? Does the judge have to conduct a trial? No.

Here, it was the MTC judge who conducted the PI.

The judge personally examines and reviews the resolution of

the prosecutor in order to issue a warrant of arrest. In case of
doubt, the judge can order the prosecutor to present
additional evidence.

So what is probable cause for the issuance of warrant of

arrest? It is to determine

Ombudsman filed complaint against Senator Estrada and 18

other people involved in the crime of Plunder and violation of
RA 3019. Jinggoy requested that he be furnished a copy of
the counter-affidavits of his co-respondents invoking Section
3, Rule 112 of the RRoCP. The Ombudsman denied his
request.
Issue: WoN Jinggoy Estrada is entitled to be furnished a copy
of his co-respondents counter affidavit?
No. Section 3(b) Rule 112 of RRoCP did not entitle the
respondent to have a copy of the counter affidavits of his
corespondents. Neither was it stated in Rules of Proceedings
of the office of the Ombudman. Section 3(b) of Rule 112 only
provides that he is entitled to examine the affidavits
submitted by the complainant and his witness xxxxxxx
If you look at Section 3, the respondent is supposed to file his
counter-affidavit with the court and furnish the complainant of
a copy of his counter-affidavit. It does not say there that he
must furnish his co-respondents. It does not entitle him to be
given a copy of the counter-affidavits of his co-respondents.
But, if he is given a copy by his ci-respondents, there is
nothing wrong with that.
In this case, the SC also gave us the 4 instances where
probable cause is needed to be established:

2.

Page

Why was a Judicial Determination of Probable Cause filed by

Redulla? Because there is no more avenue. You cannot
question the finding of the Ombudsman before the Secretary
of Justice. It is the prosecutor that is under the SoJ, not the
Ombudsman. The Office of the Ombudsman is an independent
body.

The SC tried to define probable cause to issue a warrant of

arrest.

Jinggoy case

1.

The SC in many cases does not agree that the court can
dismiss the case on the ground that there was no probable
cause based on the records. The probable cause that the
court has to determine is only w/n to issue a warrant of
arrest.

without waiting for the completion of the PI so as not to

frustrate the ends of justice.

Under Section 1 and 3 of Rule 112, by the investigating

officer 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 of the
offense and should be held for trial.
Under Section 5 (previously Section 6 and 9) of Rule 112, by
the judge to determine whether a warrant of arrest or
commitment order shall be issued.
(wala na niya giingon ang 3 ug fourth, hehe)
rd

De Joya vs Jugde Marquez

Probable cause to issue to a warrant of arrest- pertains
to the facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested

Teotimo Redulla vs. SB

AAA vs. Judge Carbonell
An information was filed against Redulla for violating RA 3019.
Redulla filed with the office of the Special Prosecutor a motion
for reinvestigation. After the reinvestigation, the OSP founf
that there was no probable cause and recommended the
withdrawal of the information. Ombudsman Disierto accepted
the findings of the OSP and granted the motion to withdraw
the information with the SB.

Azardon filed for Judicial Determination of Probable cause for

the Issuance of Warrant of Arrest which was granted by Judge
Carbonell. The judge ordered AAA, the alleged rape victim,
and her witnesses to take the witness stand. Because of AAAs
failure to take the witness stand in 4 settings, the judge
dismissed the case.

After a year, the new Ombudsman ordered the review of the

original complaint against Redulla that was filed by COA.
Acting on the order, they reviewed the complaint and found
that there was sufficient evidence to charge Redulla of
violation of RA 3019. A new information was filed with the SB.
Issue: w/n the filing and refiling of the information which was
based on the same facts and transaction should be allowed.
Yes.
There was nothing irregular in the review of original complaint
and the filing of the information. It is discretionary upon the
Ombudsman if he will deny all the findings of the prosecutor
in making a review of the latters report and
recommendations. As matter of fact, as provided under
section 4, Rule 112 of the RRoCP, when the investigating
prosecutor recommends the dismissal of the complaint, but
his recommendation was disapproved by the Ombudsman or
his deputy on the ground that probable cause exists, the
Ombudsman may file an information against the respondent
or order another assisting prosecutor to do so without
conducting another PI. It is the Ombudmsman who has the
authority to approve or disapprove the recommendation of the
Investigating prosecutor.
w/n the dismissal by the SB of the Judicial Determination of
Probable Cause was proper? Yes.
This is in line with the courts policy of non-interference with
the Ombudsmans constitutionally mandated powers. This rule
is based not only upon the respect towards the investigating
and prosecutor powers of the Ombudsman but upon
practicality as well. Otherwise, the court will be extremely
swamped every time they will be compelled to review the
exercise of discretion of the prosecuting attorneys.

w/n the case can be dismissed on the ground of lack of

probable cause for the purpose of issuing the warrant of
arrest because of the complainants failure to take the witness
stand?
No. based on established doctrine and principles, the judge
can:
1.

2.

Evaluate the report and supporting documents submitted by

the fiscal, and on the basis thereof, issue a warrant of arrest;
or
If on the basis thereof, he finds no probable cause, he can
order the complainant and his witnesses to submit supporting
affidavits and on the basis thereof, issue a warrant of arrest.
The judge dismissed the case without giving credence to the
resolution of the Assistant provincial Prosecutor, the panel of
prosecutors and the resolution of the Department of Justice,
all of which agree as to the existence of probable cause.
Therefore, it was unnecessary for the judge to take the
further step of requiring AAA to take the witness stand.
PRELIMINARY INQUIRY
The function of the judge
What is determined is the existence of probable cause for
the purpose of issuing the warrant of arrest

It is the function of the investigating prosecutor to determine

probable cause. Thus, a dismissal would negate the entire
process of PI.

The functio
Purpose is
ground to b
offense cha

Case: Borlongan vs. Pena

Case: Ong vs. Genio

SC: Judged blindly followed the certification of the City

Prosecutor. He must have to go over the reports of the
affidavits personally. Benjamin Lim here was not even
intended by Pena as one of the accused, therefore the warrant
of arrest was not valid.
Atty. Suarez: So Ben Lim, lets talk about Pende, was he
included in the list of the accused in the information?
Answer: Yes maam.

Ong filed her MR, claiming that the RTC erred in relying on
Sec. 6(a), Rule 112, since the said provision relates to the
issuance of a warrant of arrest, and it does not cover the
determination of probable cause for the filing of the
Information against Genio, which is executive in nature, a
power primarily vested in the Public Prosecutor.
RTC denied Ongs MR, holding that Rule 112, Sec. 6[a]
authorizes the RTC to evaluate not only the resolution of the
prosecutor who conducted the PI and eventually filed the
Information in court, but also the evidence upon which the
resolution was based. In the event that the evidence on
record clearly fails to establish probable cause, the RTC may
dismiss the case.
Issue:
Did the RTC have the authority to dismiss the
complaint for lack of probable cause?

Held: Yes. Pursuant to Rule 112, Sec. 6[a], the RTC judge,
upon the filing of an Information, has the following options:
1.
2.
3.

dismiss the case if the evidence on record clearly failed

to establish probable cause;
if he finds probable cause, issue a warrant of arrest; and
in case of doubt as to the existence of probable cause,
order the prosecutor to present additional evidence within 5
days from notice, the issue to be resolved by the court within
30 days from the filing of the information.

It bears stressing that the judge is required to personally

evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the
evidence on record clearly fails to establish probable
cause. This, the RTC judge clearly complied with in this case.
Atty Suarez: So there are still cases wherein Section 5 is
applied, although not many and this is one of those cases. So
RTC dismissed the case on the ground that there was no PC in
the work done by the prosecutor.

Page

Facts: Elvira Ong filed a criminal complaint against Jose

Genio
for Robbery which was dismissed by the City
Prosecutor. However, pursuant to the Resolutions of the DOJ,
Genio was charged with the crime of Robbery in an
Information. Genio filed a Motion to Dismiss the Case for Lack
of PC pursuant to Sec. 6(a), Rule 112. Ong filed an Opposition
to Genio's Motion to Dismiss.

July 23, 2015

Atty. Suarez: But who allegedly committed the crime?

Answer: Only those members of the board.
Atty. Suarez: So there is a conflict between the people who
committed the crime and those people listed in the
information. If you are the judge you will have to properly
read the information, what is the crime, who are the accused.
If this was committed by the board of directors then the
accused should be the members of the board, because PC to
issue a WOA pertains that the person to be issued have been
found a well-founded belief that he committed it. Ben Lim
here was not one of the Board of Directors, a warrant of
arrest should not have been issued against him.

There should ba a clear-cut showing that upon reading, there

is blatant showing that there is no PC talaga to hold the
accused for trial.
In this case, was the Dismissal by the RTC proper?

No, despite the fact that a judge may dismiss the case under
section 5, such is appropriate only when no PC can be clearly
inferred from the evidence presented and not when its
existence is simply doubtful. After all, it cannot be expected
that upon the filing of the information in court, the prosecutor
would have already presented all the evidences necessary for
the conviction of the accused, the objective of a previously
conducted PI being merely to determine PC.
Here, there is no clear showing that the elements of estafa
presented were doubtful. Meaning, the elements were
uncontroverted in the information.
So, let us go now to a very important provision which is
Section 6, that is what we call inquest., when accused lawfully
arrested without warrant.
Ordinarily, when PI is conducted, where is the respondent? In
his house, he is not detained, therefore the PI can last even
for 45 days or 60 days, 1 year, because he is in his house or
wherever. Section 6 talks about a person who was already
detained because he was lawfully arrested without a warrant.

So, it is not automatic that if the information enumerates the

people who are considered accused, doesnt automatically
mean that a WOA should be issue against all of them because
it ispossible that one of themor some of tem are not included
in the category who allegedly committed the crime as what
happened in this case. That is why even in the issuance of
WOA, PC needs to be ascertained.

Now, when is a warrant issue? It is issued after an information

has been filed in court, diba?

Case: Delos Santos vs. CA

So, instead of a full blown PI, since he was already detained,

hindi pa xa accused, detainee lang, an Inquest investigation is
conducted.

Facts: An information against Desmond was filed in the RTC.

Desmond argued that there is no PC. Desmond filed a motion
for Judicial Determination of Probable Cause in the RTC.
Issue: Does RTC have the authority to resolve a motion for
Judicial Determination of PC? Does it have the authority to
grant or deny?
Held: Yes. Under Sec 5 or Rule 112.
Atty. Suarez: If a judge were to dismiss upon studying the
case because he finds there is no PC, what should be the
basis of such dismissal?

So, here he was lawfully arrested without a warrant, example

By-Bust. He is now detained, and then the arrest offense
requires P, now the problem is how long is the PI? 45 days
minimum diba? What will happen? The ones who arrested him
will be charged under article 125 of the RPC, delay of delivery
of detained persons.

There is no need for a full blown PI, this is only an

investigation based only on the affidavit of the offended party,
the police and the arresting officers. The accused is not
required to submit his counter affidavits.
Who will conduct the inquest? An inquest investigator , he is
also an investigating prosecutor, but because he is conducting
an inquest, he is called an inquest investigator.
The provision is saying, the complaint may be filed by the
prosecutor withiur need of such investigation. So parang he is
implying na wala na siyang approval from the City prosecutor,
kasi pagilagay pa yan sa table ng city prosecutor, abutin pa
yan ng siyam siyam. So, the inquest prosecutor can file.

It can be filed by the offended party or the peace officer

directly to the proper court of the basis of the affidavit of the
offended party or the arresting officer.

So, if he does not question it or doesnt ask for Pi after 5 days

of learning then parang tinanggap niya na yung causes filed
against him.

So here, you dont have to file it in the prosecutor, because if

you do, then he will conduct PI. It can be filed directly with
the proper court.

So, if allowed, he has the right to adduce evidence during PI,

he may file his counter affidavit and this has to be done
before he is arraigned. Ayun! The 5 days after learning must
be before he is arraigned. Pag na arraign na siya, wala na. If
he enters his plea he is deemed to have waived his right to PI.

So, if it the inquest investigator who conducts the inquest, he

files an information with the proper court. But if it is the
complainant or the peace officer, baka yung police no, they
are not authorized to make an information, hanggang
complaint lang sila. So the complaint filed again with the
court. So that the police no who arrested the person willnot
be charged with art. 125 of the RPC.

So that is Inquest.

Does he have to stay in jail the whole time until the PI is

finished? NO. If his crime is bailable, he can apply for bail
despite the waiver.
Can this PI take 45 days or longer? NO. The maximum is 15
days. At least he will be given the chance to file his counter
affidavit, and that the case will not go to court na if ever no
PC is found.

Yes. He may ask for PI within 5 days after learning that the
complaint has been filed.
Is this 5 days after filing of the complaint or information?

No. 5 days after learning.

Because why issue a warrant of arrest if the accused is

already detained??! A commitment order is just to affirm that
the accused is there, being detained.
Has an information already filed against him while the
commitment was already filed?

Facts
On the evening of 11 June 2002, barangay tanods
invited Reynaldo De Castro to the barangay hall in connection
with a complaint for sexual assault filed by AAA, on behalf of
her daughter BBB. De Castro accepted the invitation without
any resistance.

Chronology of Events
1.
2.
3.
4.
5.

6.
Now, what if the person detained had no idea on what was
going on, that an inquest was conducted, an information was
filed tapos biglang nakausap niya yung kasama niya sa prison
cell and asked him if he underwent Inquest, and so he learned
na he had this opportunity pala to file his counter affidavit but
it was still after the complaint or information was filed. Can he
still ask for PI?

Atty. Suarez: You mentioned commitment order, what is that?

You relate it to Section 5. Why not a warrant of arrest?

Let us go to De Castro vs. Judge Fernandez

However, if this accused wanted to file a counter affidavit kay

feeling niya lugi siya, if they had an inquest, and the accused
is not allowed to file a counter affidavit, then there is a high
probability that an information will be filed against him. So he
now decides na magpapa PI nalang xa, full blown, just
conduct a regular PI.
Can he do that? YES, before the complaint or information is
filed, he can stop the complainant, the peace officer, he can
stop the inquest investigator. He may ask for a PI in
accordance with Rule 112, but he must sign a waiver of the
provision of Article 125 in the presence of counsel.

In this case, the information against De Castro was filed

with the RTC on 18 June 2002. On 20 June 2002, one Atty.
Villena, requested for copies of the pertinent documents on
De Castros case. On 25 June 2002, Atty. Villena entered his
appearance as counsel for De Castro. Yet, De Castro only
asked for a reinvestigation on 1 July 2002 or more than five
[5] days from the time De Castro learned of the filing of the
information. Therefore, De Castro is deemed to have waived
his right to ask for a PI.

Even if he learns about it for like 5 months later, which is

impossible no, then he can ask for regular PI, otherwise his
right to Pi is deemed waived.

Page

Who else can file? In the absence or unavailability of the

investigating prosecutor, let us say this detainee is andun na
sa far flung area one of the municipal complaint?

7.
8.

12 Jun 2002 barangay officials turned over De Castro

to the Las Pias City Police Station
13 Jun 2002 the police indorsed the complaint to the
city prosecutor of Las Pias City for inquest proceedings.
Later, the state prosecutor issued a commitment order
for De Castros detention.
18 Jun2002 State Prosecutor Napoleon Monsod filed an
Information against De Castro for the crime of rape.
1 July2002 - De Castro filed a Motion for Reinvestigation
praying that the RTC issue an order directing the Office of the
Prosecutor of Las Pias City to conduct a PI
5 Aug 2002 the RTC denied De Castros Motion for
Reinvestigation
22 Aug 2002 De Castro filed a Motion for
Reconsideration
28 Aug 2002 the RTC denied the motion

According to Section 6, after the information is filed, he can

ask for PI, where should he do that? Where should he file for
the regular PI? What should he file?
-

He should file it in court via Motion for Reinvestigation.

If the information has not been filed and he learns about the
inquest proceeding, where should he file to ask for a regular
PI?

In the office of the office of the Prosecutor.

So, now you know what a commitment order is.
Leviste vs. Alameda.
Leviste was arrested without a warrant. An inquest was
conducted. He did not ask for a regular PI, he applied for bail.
An information was filed against him. It was his heirs who
filed for the reinvestigation.

Issue: Is De Castro entitled to a PI?

Held: No. De Castro is deemed to have waived his right to
PI. Under Sec. 6 of Rule 112, if an information is filed in
court without a PI, the accused may, within five days from the
time he learns of its filing, ask for a PI. De Castros failure to
request for a PI within the specified period is deemed a waiver
of his right to a preliminary investigation.

Yes meron na. The judge cannot issue a commitment order if

there is no information diba? Upon the filing of the
information the judge would determine whether there is PC to
arrest the person, now the accused who is in his house or
somewhere else, yun ang WOA whether or not a PI was
conducted. If an inquest has been conducted, that means the
accused is detained, then the judge has to determine whether
or not a commitment order should be issued that is to
continue his detention.

What kind of PI was conducted here?

-

An Inquest.

What if the accused was illegally arrested, if he was unlawfully

arrested, can the prosecutor conduct an inquest?
-

What did Leviste do on the information filed against him? Did

he agree with the inquest? If you are the accused and
probable cause was filed against you, what will you do?
-

The SC said No. Such remedy is not immediately available in

cases subject of inquest because under Sec 6, the accused
has 2 options. What is that?
1. To ask for a regular PI before the information is filed
2. Ask for reinvestigation after the information is filed in
court.

Kunyare, he was arrested without a warrant, inquest was

conducted and an information was filed against him, and he
cannot be released because inquest diba? And he did not
apply for bail and then the court issued a lawful warrant,
instead of a commitment order kasi unlawful yung arrest niya,
can he question the invalidity of his arrest?
-

He may pursue the case for a regular courts for the PI.
Pwedeng huminge ng PI ang private complainant with the
prosecutor. If in the information was filed in court, the private
complainant can also ask for a reinvestigation.

So let us go to Section 7.
Self explanatory.
Now, section 8 talks about cases not requiring PI or cases not
covered by the Summary Rule?

Ofcourse, what else did Leviste do?

-

He filed a motion for Judicial determination of Probable cause.

DInismiss. Sabi ni Leviste, how come the judge did not
conduct a hearing? Well, according to the SC here, to move
the court to conduct a judicial determination of Probable
cause is a mere superfluity, for even without such motion the
judge is duty bound to personally evaluate the resolution of
the prosecutor and the supporting evidence.
So in the earlier case, the SC differentiated Preliminary
investigation from Preliminary examination. What the judge
does after the information is filed to issue a warrant after
probable cause is found, that is what you call Preliminary
examination.

No. But he can ask for a regular PI.

What are those cases that do not require PI?

-

Those cases having a penalty of 4 years, 2 months, 1 day and

below, up to 6 months and 1 day. (minimum maximum)
Why 6 months and 1 day?

Kasi 6 months and below is covered by the Summary Rule.

We are in Davao city, where do you file your complaint if you
are the complainant?

You file it in the Prosecutor.

Now, the prosecutor will not conduct PI because it is not
required. So what will the prosecutor do?

He shall act on the complaint based on the affidavits and

other supporting documents submitted by the complainant
within 10 days from its filing. No need to ask for the counter
affidavit of the respondent.
Now, there are complaints filed directly with the MTC if there
is no prosecutor then refer to section 8b. this section also
refers to section 3A of the same rule with the requirements of
the complaint.
July 27, 2015

According to San Agustin vs. People, the court should suspend

the proceedings and order the PI. The inquest investigation
conducted by the prosecutor should be considered null and
void. Because inquest is only applicable when the accused
was unlawfully arrested without the warrant.
If he was unlawfully arrested, the PI should be a regular PI
and he should be released.
Where the accused was unlawfully arrested without a warrant
or where he was arrested by virtue of an invalid warrant but
subsequently a valid warrant is issued against him, can he
question the validity of his continued detention?

Those are the 2 options. It is only after the Pi or

reinvestigation that one can go to the SOJ. The SOJ can only
review a regular PI. If you were just given an inquest, you can
ask for a regular PI. And if you are still not happy with the
regular PI because PC was found against you,then you go the
SOJ.
So the SC said, in cases, subject of inquest, the accused
should first avail of a PI or a reinvestigation, if any, before
elevating the matter to the SOJ. In case the inquest
proceeding yield no probable cause, kunyari dinismiss yung
proceeding, what can the private complainant do?

No. The prosecutor should immediately schedule a PI to

determine whether or not there is PC, in such situation, the
person arrested is also entitled to be released? Why? Because
he has been illegally arrested.
Now, if the accused is illegally arrested but thereafter the
office of the prosecutor conducts an inquest instead of a
regular PI, and an information was filed against him, what
should the trial court do? It was only determined afterwards
na unlawful pala yung arrest niya, pero tapos na yung
inquest, an information has been filed, what should the court
do?

He questioned the inquest against him and appealed to the

DOJ Secretary.
Can that be done? Can you question an inquest before the
DOJ? Can Leviste go straight to the SOJ to review the result of
the inquest finding PC against him?

Page

Held: Yes, Section 6 is silent as to who can ask for

reinvestigation, so even the heirs can ask for reinvestigation.

Issue: w/n the heirs of de los alas can ask for reinvestigation
even if the information has been filed in court.

We are on the last provision of Preliminary Investigation (PI)

Section 8 Cases not requiring a Preliminary Investigation
nor covered by the Rule on Summary Procedure.
The last provision talks about cases that do not require PI,
and not covered by the Rule on Summary Procedure.
1.

So, if the complaint is filed with the prosecutor, that procedure

in the PI is followed in a sense that the complaint affidavit
must be subscribed and sworn to before the prosecutor, you
must submit or attach the affidavits of the witnesses and
other supporting documents but the prosecutor shall act on
the complaint based only on the affidavits and other
supporting documents submitted by the complainant within
10 days from its filing, no need for any counter affidavits from
the respondent.
Is there a possibility that the prosecutor will dismiss the
complaint? Yes.
Just because there is no requirement of PI doesnt mean that
your complaint will right away turn into an information, and
this happens all the time in BP 22 cases.
In BP 22 cases, there is this requirement of Notice of
Dishonor, that this must be personally received by the
respondent. But because of that ruling, that People vs. Baca
or Baca vs. CA, because of that ruling, a lot of people know
about it. And what do these people who issued unfunded
checks do? They do not receive. Kahit na 1 month na yung
demand letter mo, hindi daw talaga nila nareceive.
So, the private complainants , try to find ways and means to
serve. I know for some who opts for courier service, meron
pang ibang who goes for the certification of the Barangay
Captain. Meron pang minutes of the meeting in the
prosecutors office, noh? In front of the fiscal ayaw pa ring
tanggapin.
So what happens, when you file a BP 22 case and you dont
have the signature of the respondent in the Notice of

dishonour, you know what the prosecutor will do? Dismiss.

Because BP 22 cases do not require PI. But nowadays, BP 22
cases is under the Summary Rule. So here, Section 8 no?
Section 8 refers to those cases not covered by the Rules on
Summary Procedures, paano na yun yung Summary Rule
noh?
Anyway, just ah.. for your information.
2.

Now, there are cases that are filed directly to the MTC if there
is no prosecutors office in that place like it is a Municipality,
alangan naman punta ka pa ng City, you dont have to. You
can file directly with the MTC. Now, according to Section 8,
the judge may dismiss the complaint within 10 days after
filing of the complaint or information complaint anyway if
it is an information from the prosecutor ganun din then the
Section 5. He may dismiss or require the submission of
additional evidence. If the judge finds no probable cause,
again, just like Section 5 he shall dismiss despite additional
evidence no, he can dismiss.
What if he finds probable cause? Then he shall issue a
warrant of arrest, or commitment orders. Or he may issue
summons, okay, ayun, so this is the part that we have to
discuss. The rest, we already know that.

Page

Issue:Did Judge B act accordingly in issuing the warrant of

arrest?
Held: No. In issuing warrants of arrest in PI, the investigating
judge must:
1.

2.
3.

have examined in writing and under oath the

complainant and his witnesses by searching questions and
answers;
be satisfied that probable cause exists; and
that there is a need to place the respondent under
immediate custody in order not to frustrate the ends of
justice.

Judge B's hasty issuance of the warrant of arrest

constitutes gross ignorance of the law.

Question: This case, Violation of RA 8048, does this require

PI?

Let us go to Adriano vs. Judge Bercades.

Answer: Yes maam. The penalty is 1-6 years.

Facts: This is an administrative case filed by Manolo Adriano

and Reynaldo Austral against Judge Bercades of the MTC, for
abuse of authority. A&A stated that, pursuant to a warrant of
arrest issued by Judge B, they were arrested for cutting down
coconut trees without a permit, in violation of RA 8048.

Question: Does it? 1 year to 6 years, does it require? So did

the judge here conduct Pi or not?

A&A alleged that Judge B's order of arrest did not show
the necessity of placing A&A under custody so as "not to
frustrate the ends of justice. Judge B explained that the
warrant of arrest was issued in accordance with Sec. 6(b),
Rule 112

Atty. Suarez: So, this is a case which requires PI? So if you

compare, Section 6-b pala, I was talking about Section 6-b,
when the MTC judges conducted PI, and here we have 1 filed
with the MTC directly.

After conducting a summary examination under oath of

the prosecution witnesses by means of searching questions
adopted by the undersigned Judge, the Court finds that there
is reasonable ground to believe that the offense of VIOLATION
OF RA 8048 cognizable by the MTC, has been committed and
that the accused, A&A are probably guilty, thus a warrant for
the arrest of the accused be issued.

Unlike under section 5, there is no requirement dito, in

Section 5 of Rule 112 after PI is done by the prosecutor.
Let us compare that to Tabuhara vs. People.
(Interrupts reporter)

It is clear that Judge B ordered the issuance of the

warrant of arrest solely on his finding of probable cause and
failed to consider that there must be a need to place the
accused under immediate custody "in order not to frustrate
the ends of justice."

He may issue summons instead of a warrant of arrest if the

judge is satisfied that there is no necessity for placing the
accused under custody. Compare that to the old rule that we
will find here in the cases.

Judge B justified the issuance of a warrant of arrest on

the following ground:

So the procedure is different no? where PI is required, and

when PI is not required. In this case, the penalty is up to 6
years and PI is required. The judge has to go through the 3
steps before issuing a warrant and what happened here? The
SC said, it is clear that the judge ordered the issuance of a
warrant of arrest solely on his finding of the probable cause
and failed to consider that there is a need to place the
accused under immediate custody in order not to frustrate the
ends of justice, noh?

Answer: In this case, he was the one who conducted the PI

maam.

What is the requirement under Section 6-b? when should the

judge issue a warrant of arrest? We are talking about a
warrant of arrest here. Under section 6-b, if he finds after an
examination, under oath and in writing in the form of
searching questions that probable cause exist, and there is a
need to place the respondent under immediate custody in
order not to frustrate the ends of justice.
If PI is required to issue a warrant, the judge is required to go
through the 3 steps. If PI is not required, he shall issue a
warrant of arrest after going through the procedure under
section 8, or he may issue summons if he is satisfied that
there is no necessity for placing accuse under custody.

Atty. Suarez: Before you say all those things, you didnt even
tell the class or me that this case requires PI or not?
Answer: No need for PI maam. The penalty for this case
maam is only arresto Menor maam.
Atty. Suarez: So this is a case that does not require PI. So did
the judge follow section 8 or section 9 for that matter?
Answer: No maam. When conducting the examination maam
the judge must personally examine the witness and proceed
with searching questions under the rule. Judge here did not
personally examine De Lara and he did not personally sign the
statement that he provided maam, and also that judge failed
to propound searching questions. The court here ruled maam
that the statement of De Lara could not be used to find
probable cause against Tabuhara and Dayrit maam.

It is stated here, that if you file directly with the MTC and no
PI is required, it says here, if within 10 days after the filing of
the complaint or information and the judge finds no probable
cause after personally evaluating the evidence, or after
personally examine in writing the complainant or under oath
his witnesses in the form of searching questions and answers,
he shall dismiss the same.
So according to the SC in this case, the judge abused his
discretion in issuing the order of finding probable cause to
hold the accused liable for trial and issued a warrant of arrest
because it was based solely on the statement of De Lara,
whom the judge did not personally examine under oath.
Neither did he propound searching questions. He merely
stated that he overlooked the statement of De Lara,
nevertheless, without conducting personal examination or
propounding searching questions. So the judge relied solely
on the affidavit of the statement of De Lara which was not
sworn to before him, so he failed to examine. Therefore he
deprived the accused the opportunity to test the veracity of

So, the requirement here to issue a warrant under Sec. 8,

according to the SC that it is

Dito sa Section 8 if you dont feel the need to put the accused
in custody because, maybe the crime is just minor, it doesnt
require PI, you just issue summons. The problem is, ano yung
nakalagay sa summons? What do you order him to what?
(Atty. Suarez being sarcastic with the rules kay vague pa rin
daw) unlike dito sa Section 3, issue the summons, order the
respondent to file his counter affidavit, dito wala. So, just take
note of what the provision is saying. This rules will be
amended soon, hopefully they will look at these vague
portions.

necessary that the judge be satisfied that PC exist through an

examination under oath of the complainant and his witnesses
which the examination should be in the form of searching
questions and answers.
It seems that theres PI in a sense that the judge has to call
the complainant and his witnesses and examine them under
oath no? that is what the SC said here in the Tabuhara case.
But that is not all, what else did the SC say? Naku eto pa, the
issuance of a warrant of arrest is not mandatory. The
investigating judge must find that there is a necessity of
placing the accused under immediate custody in order not to
frustrate the ends of justice. Ano yun, Section 6! The need!?
In other words, hinalo ng SC. Ano ba talaga. PI? Was the
judge here conducting PI or no PI. Sabi ng SC, no PI, then
ano ito? Diba? Why is that provision being applied. Your
mixing. Make up your mind. Section 8 daw o section 6. It is
very confusing no kung ano ba talaga ang procedure.
You should notice these things no while you are reporting. Not
just cut and paste report. Do you really absorb what the SC is
saying? Did you not even ask for your opinion as to whether
or not the rules are being played around with, noh?
Okay, let us go to the case of Carandang vs. Base.
Student: Under the Rules, the clerk of court has no authority
to issue warrant of arrest or a commitment order. It is a
judicial function and not an administrative one. They may only
order such upon the direction of the judge; under no
circumstances should they make it appear that the judge
signed the order when in fact they did not.
Atty Suarez: So, who can order a commitment order?
Answer: Only the judge maam.
Going back to this, if the judge is satisfied that there is no
necessity of placing the accused in custody, he may issue
summons instead of a warrant of arrest. Okay? So, what is
the situation here, there is no PI. And therefore nobody issued
summons to the respondent. Since the complaint was filed
directly into the court or the information was filed in court
after the prosecutor filed it without conducting PI. There is
still this determination that should be made by the judge as to
whether or not the accused should be arrested. There are
crimes that do not have a penalty of imprisonment, no?
The judge must first satisfy himself that there is a need to
place the accused under custody, which was done in
Tabuhara, pero itong in order not to frustrate the ends of

10

justice is not found here in Section 8, it is found in Section 6b.

Page

the (atty. Suarez stopped reading because it was more on

factual matters already)

Now, Borlongan vs. Pena.

Warrant of arrest not valid. The judge
evaluate the information and complaint
supporting documents. The judge did not
complainants and the witnesses under
questions. Judged blindly followed the
prosecutor.

did not personally

affidavit and other
personally examine
oath with probing
one filed by the

Atty. Suarez: But we already discussed that, what about the

other issue?
Answer: In relation to Section 8 maam, since the offense
carries an imposable penalty of 2 years, 4 months and 1 day,
it no longer requires PI. Only the complaint affidavits and
other supporting documents may be used to determine PC
maam.
Atty. Suarez: So, is there a violation to the rules, when he
was not required to submit his counter affidavit?

my counter affidavit. Ano to? This does not require PI. So it is

enough that the prosecutor studied the affidavit complaint,
affidavit of the witnesses and the complainant without getting
the side of the respondent.
So there is no reinvestigation if a case does not require PI.
Because a reinvestigation is another PI. How will you
reinvestigate if there is no PI from the beginning, diba?
Lets go to Mondilla vs. Judge Pangilinan.
This case is a nullification of the old rule no? when judges
were still authorized to conduct PI. Now, what I wanted you to
see in this particular case is who reviews the PI. Who reviews
the resolution of a judge? Its the city prosecutor! In other
words, the judge while conducting PI should take the role of
an investigating prosecutor and be subject to the review of
the city prosecutor, but on the other hand, despite that, a
judge can issue a warrant of arrest while conducting PI if he
personally examine the witnesses in the form of searching
questions. So it was really really confusing no during those
times for judges, prosecutors, law students and even the SC.
So eventually in 2005 October 3, the MTC judges are no
longer authorized to conduct PI. We are no longer worry about
that. Hopefully, the SC would not focus anymore on the old
Section 6b and just focus on section a which is also vague no
with respect to the summons.
Just to let you know in advance, section 6b which is now
section 8b is in conflict with what we are going to learn under
Rule 113. You remember your Consti 2, before a judge issues
a warrant of arrest?

Atty. Suarez: Can he file a motion for reinvestigation.

Basically no that is Rule 112, now let us compare that with

Rule 113 Arrest. This is something that you already know
about in your Consti 2. This topic is already included in our
Crimpro.

Answer: Yes maam.

What is Arrest, according to Section 1 of rule 113?

Atty. Suarez: Where is reinvestigation filed? Where, Donde?

It is a taking of the person into custody in order that he may

be bound to answer for the commission of an offense.

Answer: No maam.

Answer: In the office of the prosecutor maam.

Atty. Suarez: So, he can file for reinvestigation? Are you sure?
This case, you mentioned, does it require PI or not? (needs no
PI maam) So what will you reinvestigate? What will the
prosecutor reinvestigate? If PI is not required, is there a need
to determine PC in the prosecutors office?
If the accused who is already an accused because an
information was already filed in court, entitled to a
reinvestigation? NO! Diba? If there is no PI required, you
cannot go to the judge and say that there is already an
information filed against me and say, can you please remand
this case back to the prosecutor. Kasi I was not allowed to file

So, it is the judge who can cause the arrest of the person by
issuing a WOA. So we have here under Rule 113 the
procedure in making the arrest. However, let us review no
what you took up.
This is based in Section 2 Article 3 of 1987 Constitution.
The right of the people to be secured in their persons, house,
papers effects etc. against unreasonable searches shall be
inviolable and no search warrant or WOA shall issue except
upon PC to be determined personally by the judge after
examination under oath by the complainant and other
witnesses that he may produce and particularly describing the
place to be searched and the object to be seized.

Let me confirm with Atty. Montejo, it is either personal

examination of the evidence or personal examination of the
witness or the complainant. It is either of the 2. Its just that
this last case that we discussed, what was that again,
anyway.. I will just confirm this with atty. Montejo with what
is existing no. if this is just only for judges who are
conducting PI, but as far as the provision is concerned there is
no stringent requirement to personally examine the
complainant and the witnesses.

Page

What is the procedure in issuing WOA?

It is under section b. if you look at the wording of the rule, it
says, after personally evaluating the evidence or after
personally examining in writing or under oath the
complainant. So if you are the judge, you can personally
examine the evidence or the complainant or his witnesses.
In the old case of Lim vs. Felix, which I hope you took up in
Consti, the procedure is after PI the prosecutor will certify
that he has personally taken the evidence and he has
personally examined the complainant and his witnesses. So it
is the prosecutor who will certify, diba in an information there
is a certification? So the judge does not have to personally
examine the complainant and his witnesses. The prosecutor
performs the State function as commissioner for taking of the
evidence, however there should be a report and necessary
documents supporting the prosecutors bear certification, all
these should be brought before the judge. If in doubt, or
when necessary, the judge can go beyond the prosecutors
certification and investigation report. He can call the
complainant and the witness to answer the courts probing
questions, if the circumstances of the case so require.
So in the case of Lim vs. Felix, the SC said, the court may
just personally examine the evidence and if the judge is not
satisfied then he can call the witnesses and the complainant.
Also in Soliven vs. Makasiar 187 S 393, what are the steps?

The judge must personally evaluate the report the supporting

documents submitted by the prosecutor regarding the
existence of PC, and on the basis issue a WOA.
Or, if on a basis thereof, he finds no PC, he may disregard the
prosecutors report and require the submission of supporting
affidavits by the witnesses to aid him in arriving on a
conclusion as to the existence of PC.
So, here in Soliven vs. Makasiar, the judge need not even
personally examine the witnesses, he can ask for supporting
affidavits, so my question to you is this:
In your Consti, what did your teacher teach you? Is it the
procedure here in Soliven or is it the procedure here in
Section 8b? Who can answer? Do you remember or not? Iba
ang search warrants ha.
The reason for this is there is so many WOA to be issued for
every case you submit the court, does the judge have to
personally examine each and every ano , if 20 yun? unlike
search warrant hindi ganun karami. So that is the explanation
here in the cases of Felix and Makasiar and in the cases that
we took up, te 2008 case? Anyway.

But this is not saying that the judge is prohibited from

examining the complainant or the witnesses. This is saying
that the judge is not obliged to look for the complainant and
the witnesses and iexamine sila.
And we did not discuss People vs. Judge Yadao where the
SC said the same thing no. The judge only needs to
personally review the initial determination of the prosecutor
finding probable cause and see if it has support of substantial
evidence.

July 28, 2015

To issue a Warrant of Arrest, apparently from what you
remember, the judge needs to personally examine the
witnesses and the complainant.

So, I hope this is already settled issue no as to whether or not

the judge has to personally examine the complainant and the
witnesses in the form of searching questions. Just take note of
the provisions under both sections.

Actually no, I taught consti 8 years ago, and what I know is

what I taught you yesterday, the case of Lim vs. Felix and
Soliven vs. Makasiar.
Let us compare the 2 provisions that we already took up on
what the judge must do. It depends:
-

as to the existence of probable cause. To this end, he may

personally evaluate the report and supporting document of
the prosecutor or require the submission of supporting
evidence to aid him in determining its existence.

11

So in other words, if you look at section 2, it really refers to

search warrant, meron lang nasingit dito na WOA.

If PI is required, we apply Section 5.

If PI is not required, we apply Section 8.
And it is very clear in Section 5 on what should the judge
personally evaluate:
the resolution of the prosecutor and its supporting
documents.
There is nothing is Sec 5 that the judge has to personally
examine the complainant and the witnesses.
So, if he is not satisfied, he may order the prosecutor to
provide additional evidence, that is what section 5 says.

1.
2.
3.

4.

But Section 8 says the judge must personally examine the

complainant and the witnesses in the form of searching
questions.

Okay so let us go to Rule 113. What is the procedure once a

WOA has been issued? What is the purpose of issuing a WOA?
It is for the court to acquire jurisdiction over the person of the
accused because jurisdiction is acquired by voluntary
surrender of the accused or when he is arrested.

Why? Because there was no PI, this was not done by the
prosecutor. If the judge is not satisfied with what is submitted
to him he can examine the complainant and the witnesses. In
Section 5 there is no need because there are so many
documents already submitted for the PI. So the judge can
refer to those documents.
That is the procedure and this has already been affirmed in
the cases that we discussed already in the case of Borlongan
vs. Pena (section 5 digests ni maam):
The SC said that personal determination does not mean that
judges are ----- to conduct the personal examination of the
complainant and the witnesses, to require thus would be to
unduly laiden them with Preliminary examinations and
investigations of the criminal complaints instead of
concentrating on the hearing and deciding cases filed before
them. Rather, what is emphasized merely is the exclusive and
personal responsibility of the issuing judge to satisfy himself

When is a WOA not necessary. Diba, the first thing that a

judge should do is to determine whether or not there is
probable cause to issue a WOA. Even if there is PC, when
should a judge not issue a WOA?
When the accused is already under detention pursuant to a
warrant issued by the MTC during PI. This is when the MTC
judges were authorized.
When the complaint or information were filed pursuant to Rule
112 section 6. What is that? Inquest. Because the judge has
to issue a commitment order not an arrest anymore.
When the accused is charged with an offense punishable by
fine only like BP 22. In the case of Baca, the SC said for the
first offense of BP 22, fine lang, pero of course, if you look at
the law itself there is imprisonment.
When the case is covered under the Rules on Summary
Procedure. There is no WOA. So BP 22 cases, no WOA
because it is covered on the Rules of Summary Procedure.

A WOA is an order of the judge in writing directed to an

arresting officer commanding him to arrest a particular person
for the commission of a particular crime.
What are the requisites of a valid warrant?
-

It must be issued by the judge in writing. Not oral or verbal.

It must be issued based on PC. The judge has to comply with
section 5 or 8 as the case may be.
Specifically describes the person to be arrested. It is not valid
if it only says arrest that person oh? Sino yun?

John Doe warrants are void. But information against John

Does are not void. Pwde, if you dont know the name just put
John Doe, but if warrant.. what comes first the information or
the WOA? The information. WOA is normally after the
information is filed in court.

When should a warrant be executed? According to Section 4,

within 10 days from its receipt.

12

We dont have to discuss here what youve learned in Consti,

the Miranda warning. That is already included. The officer
must inform the person arrested of his rights.

Page

What about John Doe warrants? Because it is required that

warrants should specifically describe the person to be
arrested.

What should the officer assigned do? According to section 4,

10 days from the expiration of the period, so 10 days from
the expiration of the 10 days, he shall make a report to the
judge who issued the warrant. And state the reasons for
failure to execute the warrant.

What is the exception that John Doe warrants are void? If the
warrant describes a particular person to be arrested like
arrest the Chief of Police of Davao City, yun na un, there is
Only one. Or arrest the vice mayor of Kapalong.

How long does the arresting officer have? Even though

Section 4 says you have to report within 10 days after the 10
days, in the case of Magalona vs. CA, the SC said that in our
jurisdiction no period is provided for the enforceability of the
WOA. Although within 10 days of the delivery of the warrant
of arrest for executing a return thereon to the issuing judge,
said warrant does not become
---- de officio but is
enforceable indefinitely until the same is recalled.

Who can issue a warrant? Only a judge. There is 1 exception:

The President or his authorized representative. Who is his
authorized representative? Yung kanyang mga Alter Ego for
the purpose of carrying out a finding of a violation of the law
such as an order of deportation or contempt but not for the
sole purpose of investigation or prosecution. If for the purpose
of investigation or prosecution only a judge can issue a WOA.

So the WOA just sits there. Yung WOA nga namin 3 years na
yun. You know what the police are waiting for? The reality of
life, the police is waiting for something that you can give to
them.

So let us go to Section 2, how is an arrest made. So you have

a warrant, you are the arresting officer.
Section 2 says, by an actual restraint of the person to be
arrested or by the submission of the person to the custody of
the person making the arrest. Remember when there was a
WOA against Ping LAcson and this big issue if kaliangan ba
siyang posasan? Umabot ata sa CA.

Now what is an Alias warrant? It another warrant of the same

warrant. In Peole vs. Rivera, if the arrest warrant is not
served within 10 days, must the court issue an alias warrant
in order to justify the arrest of an accused? NO. If you are not
able to execute the warrant within the 10 day period, you can
still use it even for 1 year, 2 years until that person is
arrested.

If you look at the provision, actual restraint. That is a very

general provision, how do you restrain that person? You hold
that person, you tie him up, whatever. If that person who is to
be arrested submits himself to the person making the arrest,
there is no more actual restraint necessary no? Why will you
have to actually restrain that person if he is already
submitting himself to the arresting officer.

The next provision is used in Consti as well on Warrantless

Arrest. Section 6 of Rule 112 talks about an accused who was
lawfully arrested without warrant.
If he is lawfully arrested, he can be detained for a certain
period and the inquest investigation instead of PI will be
conducted. What are the instances of a lawful warrantless
arrest?

Now, according to Sec 2, violence or unnecessary force may

not be used in making the arrest. You dont have to kick the
person, ipapadapa and all those things na nakikita natin sa
TV.

The general rule is All arrest must be made by virtue of a

valid warrant, if the arrest is warrantless, that is Illegal. But
there are 3 exception. When? Section 5. (reads Section 5)

And the person arrested should not be subjected to a greater

restraint than that necessary for his detention.
In other words, when you arrest you can restrain a person but
not one greater than what is actually necessary.
So, the duty of the arresting officer under Sec 3. He must
arrest the accused, after the arrest he must deliver him to the
Nearest police station or jail without unnecessary delay. He
must be brought to a police station with a cell so that he may
be restrained, not to a police station with no jail or cells,
otherwise he would just be sitting down there the chair and
he would not be considered arrested.

1.
2.
3.

This is the Flagrante Delicto exception.

Freshly Committed Doctrine Hot Pursuit Arrest.
Person to be arrested has escaped from a Penal establishment
or place where he is serving judgment.
In Flagrante Delicto Arrest : People vs. Dela Cruz
He was arrested without warrant for Illegal possession of
drugs, by virtue of flagrante delicto. Since it was not shown

that his arrest was valid, he was acquitted. It enumerated the

2 requisites of Flagrante Delicto rule:
1)

2)

Person to be arrested must execute an overt act indicating

that he has just committed, is actually committing, or is
attempting to commit a crime
Such overt act is done in the presence or within the view of
the arresting officer
Atty Suarez: It is sufficient that the person to be arrested
executes an Overt act. What is an Overt act? Example:
Running into the toilet flushing something, which indicates
that he has just committed, or attending to commit a crime.
Or paypay-paypay, para mawala ang amoy ng drugs, things
like that ba that would indicate. If the requirement for the In
flagrante delicto is the actual commission of the crime, then
no one will be arrested in flagrante delicto, except yung mga
buy bust, pero this case buy bust nga ito pero De la Cruz was
just sitting there making kwento. Is that an overt act? NO.
diba in your cases in Consti, riding a tricycle, is that an overt
act? NO. That overt act must be seen or done within the view
or presence of the arresting officer.
Let us say, you see somebody lying dead on the street and
there is someone running away? Is that an overt act? YES.
Did you see the crime? NO. If he did not kill the man, tatakbo
ka ba? That is an overt act, that is enough to arrest him in
flagrante delicto. Those 2 requisites must be present.

Freshly Committed Doctrine Hot Pursuit Arrest

This is the 3rd kind of Probable Cause. The first one is to be
determined by the prosecutor. The second is determined by
the judge. This is the 3 rd kind which is determined by the
Arresting Officer based on personal knowledge of facts and
circumstances that the person to be arrested has committed
the crime.
Now, this is 1 of the reasons why I dont like to teach Consti.
If you remember the cases, you will go crazy. What do you
mean by Freshly commited? Kasi iba-iba yung decisions ng
Supreme Court. Mas problematic yung PC. What is personal
knowledge? Is it the knowledge of the arresting officer or the
knowledge of somebody, that is also unclear. The SC has
different decisions are regards this. So, what do you have to
know in my class, since this is procedure, then follow the
requisites:
First, the offense has just been committed. Now, how long?
That is not our problem anymore, bahala na yung korte jan to
determine what is freshly committed.
Second, that the arresting officer has PC to believe based on
Personal knowledge of facts or circumstances that the person
to be arrested has committed it. This is different from in
flagrante delicto, do not mix them. Do not make it Chopsuey.

Person to be arrested has escaped from a Penal

establishment or place where he is serving judgment.

So let us go to: Lad-lad case

Or has escaped while being transferred from 1 confinement to

another, lets say, somebody was arrested and he was placed
in Sta. Ana police station now he is being transported to Ma-a
City Jail for him to stay temporarily. But during the trip, he
escaped, do you need a warrant to arrest him? NO. he was
already arrested.

We will continue on Thursday and finish Rule 113 and go to

Rule 126 on Searches and Seizures because these topics are
related.
July 30, 2015

So those are the exceptions under Section 5.

Exam review of answers:

There are other instances from other provisions where a

warrantless arrest is valid.

Even if the arresting officer does not have the warrant with
him, the person arrested cannot complain. You can show the
warrant as soon as practicable.

If a person is lawfully arrested for committing a particular

crime, then his arrest in flagrante delicto is valid. In this case
he was arrested without warrant in flagrante delicto for
inciting to Sedition so an Inquest may be conducted. But he
was again subjected to another inquest for rebellion. Can this
be done? No. Because he was not lawfully arrested for
rebellion, only for sedition. For the rebellion case filed against
him there must be a proper regular way. Okay, so take note of
that.

Or when the person to be arrested is temporarily confined

while his case is pending. Ma-a Jail who are these persons
in Ma-a Jail? Yung mga may kaso jan sa hall of justice. They
are not yet convicts, they are there because maybe the crime
is non bailable or cannot afford bail, if anyone escapes, then
any arrest without a warrant is valid.

Page

But this is very very common, lawyers ask for the suspension.
Even though we have this case, it is still being done.

We are talking about a Convict Dapicol penal

establishments. He escapes. Do you need a warrant of arrest
to arrest him? NO. Any arrest to that person is valid.

The information including the Miranda warning shall be given

to the person to be arrested if he is just there standing, but if
he is running away, habulin mo. That information is given
while the person is at rest not when he is trying to escape,
before the officer has the opportunity to so inform him. Or
when the giving of such information will imperil the arrest.

13

the proceedings in abeyance and just wait and wait and wait
for the SOJ to give his resolution on the issue.

MTC judge issued a subpoena did he act correctly? No,

because the MTC has no jurisdiction??? Tama bay un?? NO!
Subpoena! Does issuing a subpoena anything have to do with
jurisdiction? When is a subpoena issued? Preliminary
investigation! During PI! Dapat ang sagot ninyo he does not
have the power to conduct PI!. How come you are talking
about jurisdiction? Things like that ba. Ofcourse Rule 112 is
not included in the coverage, but the issue is not jurisdiction
and you know very well that an MTC judge is not allowed to
conduct PI.

If when a person lawfully arrested escapes or is rescued

under Section 13.
Under Rule 114 section 23 for the purpose of surrendering
an accused while on bail. If he did not appear in court when
required to do so, he can be arrested without a warrant.
Under Rule 114 section 23 0 accused attempts to fly out of
the country without the permission of the court where the
case is pending. You can only be prevented from leaving if
there is a Hold departure order which is only be issued by RTC
and if there is a pending Criminal Case.

MTC offended party can prosecute.

How do you make an arrest without a warrant? That is under

Section 8. Very easy.
Section 8 is the officer without the warrant. He must inform
the person to be arrested of his authority.
What if the one who makes the arrests is a private person?
Can a private person make an arrest?
-

Yes. When it is the private person making the arrest he shall

inform the person of the intention to arrest him and the cause
of the arrest, unless, same as Section8.
Now, an officer who cannot possibly restrain the person to be
arrested, or there are more than 1 person to be arrested and
he is alone, he can ask for assistance under the principle of
Posse Commitatus he may orally summon as many
person as he deems necessary to assist him in effecting the
arrest. Every person so summoned shall assist him, and when
he can render such assistance without detriment to himself.
What if the person to be arrested is inside a building?
According to Section 11 (reads)
The person to be arrested does not have to be there, it is
enough that there is a reasonable belief that he is there, such
as when it is his house, bahay niya yun, if he is refused
admittance after announcing his authority and purpose.

So, the last part of Section 5.

The person arrested without a warrant should be delivered in
the nearest police station or jail and should be proceeded
against in accordance with Section 6 Inquest. So connect
the rules.

So, let us go to Section 6, when can an arresting officer

execute the warrant?
-

Under Section 4 Vyudes vs. CA

To simplify, even though there is a pending petition for review
before the Secretary of Justice, the proceedings before the
court no, that is the business of the court. No department
circulars of the DOJ can dictate the court on what to do about
the case before it. So the procedure is for the court to
determine whether there is PC to issue a warrant, then issue
and continue on with the proceedings. Separately, if there is
something going on with the department of justice then they
should resolve whatever it is, but the court should not hold

Anytime at anyday. Even at 4 am, walang sinasanto na oras

pagdating sa arrest.
Now, we have a warrant issued by the judge, what is the
procedure? Please read Section 7.
So, what if the arresting officer has 100 warrants that he has
to execute? Does he have to bring the warrant with him all
the time in order to arrest?

NO. As long as he knows who to arrest, he can arrest. He

shall inform the person to be arrested of the cause of the
arrest.

In other words, you should announce your authority first.

Sometimes, it is not practicable to announce your purpose but
that is what is required under Section 11. When you announce
and they are guilty inside, do you think they will welcome
you and say Hi? Still, you have to announce your authority
and purpose.
Now, let us say nakapasok na ang ating arresting office but he
was locked in, under Section 12,he may break out from the
building or enclosure to liberate himself.
Section 13 we already looked at that.
Now we have a person who is now detained, he was already
arrested and in the jail. Who can visit him? According to
Section 14. Lawyers, no? upon request of the detainee no
can visit anytime. Again, Lawyers and relative. What kind of
relative? It doesnt say. Pwede ba yung grandfather of the

So, under the Constitution, Article 3, Section 2, this is the

provision on Unreasonable searches and seizures. As what I
have mentioned to you, yung warrant of arrest nasingit lang
doon.

14

cousin? As long as relative. Hindi man nakasabi jan na

specific.

Page

However, RA 7438 who can visit a detainee?

So the General Rule is premises may not be searched nor

papers or effects be seized without a valid search warrant.

Lawyer
Any member of the immediate family of the person arrested.
Ayun.. di pala pwede ang extended relatives
Any medical doctor, or priest or religious minister chosen by
him or any member of his immediate family or by his
counsellor.

According to Section 1, a search warrant is issued by the

judge. Who else can issue a search warrant?
This 1990 case of Salazar vs. Achacoso, this question was
made to the secretary of Labor issuing a search warrant in
cases of illegal recruitment under article 38 of the Labor code.
Article 38 allows the Secretary of Labor to issue a search
warrant but the SC said that this provision is unconstitutional,
only judges can issue a search warrant.

Who are these people deemed as the immediate family?

-

Spouse
Fiance/Fiancee
Parent, child, brother or sister
Grandparent or grandchild
Uncle or aunt, nephew or niece
Guardian or ward

Exception: But there is one other entity who can do so, the
Commissioner
of
Customs
or
his
authorized
representatives for violation of Tariff and Customs
code, yun lang, other than that, wala.

Under this law, the police cannot prevent those persons from
visiting the detainee, otherwise, that policeman can be
arrested.

Now, remember, an arrest warrant can only be issued if there

is a crime. Meaning, an information has been filed, there is
already probable cause than a crime was committed and that
the accused is probably guilty thereof. But for search warrant,
you dont need to have information filed in court. You can
apply for search warrant even before you file a complaint.

Now, may the detaining officer require the lawyers only to do

business with the detained persons during business hours?
According to Rule 113, section 14 anytime of the day or
night. But in the case of In re: Alejano vs. Gabuhay August
25, 2005, Section 4(b) of RA 7438 provides the standards
Such reasonable measures as may be necessary to secure
the detainees safety and prevent his escape so this can be
used by the detaining officer as an excuse to say na, wag
naman 3 am, just come here during office hours by 8, unless
there is a court order.
That is Rule 113. Just read the case of People vs. Alunday

Let us proceed to Rule 126

Remember the provisions on Arrest. And in your mind while
we are discussing Rule 126, you try to relate what you have
learned under Rule 113. Just because our exam has another
coverage do not forget jurisdiction, rule 110 or other rules,
this is a continuing process ha. If you are asked then the
question is related to a previous topic then answer it.
So Rule 126, Search Warrant. It is an order in writing there
is no such thing as an Oral search warrant. Always in writing
issued in the name of the People of the Philippines and signed
by the judge, as a general rule the judge signs it. And what is
contained? It is directed to a peace officer commanding him
to search for personal property described therein and bring it
before the court.

Normally, search warrant comes before a complaint because it

is the product of the search which would give the evidence for
the State or the private complainant.
So, where do you file an application for search warrant?
-

Any court whose territorial jurisdiction a crime was

committed. Very important, section 2.
Meaning, the issuance of a search warrant is also
jurisdictional. There is a territorial jurisdiction limitation. If the
crime was committed in Davao city, if the crime was Murder,
can you go to the MTC and ask for a search warrant? Pwede,
Any Court, that is territorial jurisdiction.
Exception: for compelling reasons stated in the
application, any court within the judicial region where the
crime was committed if the place of the commission of the
crime is known, or any court within the judicial region where
the warrant shall be enforced.
This is an exception. For the ordinary courts, MTC or RTC it is
either territorial jurisdiction. MTC only in the municipality or
the city, the RTC as defined by the SC. And then you have the
Judicial region which is Judicial Region XI, so limited pa rin xa.
If let us say, the crime was committed in Bansalan, which is
still Judicial Region XI, pero the search or the person who
committed the crime brought the effects used in committing

the crime to Davao City, as a general rule, you have to apply

for the search warrant in Bansalan RTC. But for compelling
reasons, very mobile, the ones who are carrying the effects of
the crime, you can put that as compelling reason then you
can apply for the search warrant here in Davao City within the
judicial region where the warrant shall be enforced. Or, you
can go to Digos, within the Judicial region where the crime
was committed is the place of the commission of the crime is
known. So pwede sa Digos because Digos is within the judicial
region.
So, limited for RTCs and MTCs. If, however, according to the
Sec 2 provision, If the criminal action has already been filed,
you can only apply for a search warrant in the court where the
criminal action is pending.
Now, there is an old case in Malaluan vs. CA a 1994 case,
can a search warrant issued in the RTC of Caloocan be
implemented in Quezon City?
Well, I dont know if Caloocan and Quezon city are in the
same judicial region, yata no? NCR? So, pwede, as long as
there is a compelling reason stated in the application.
But generally speaking, under Section 2, if the crime was
committed in Caloocan, it is the RTC of Caloocan, that has the
authority to issue a search warrant. If the crime was
committed in Caloocan but you want to search in Quezon city,
you have to put a compelling reason.
In this case of Malaluan, it is a very long and detailed
procedure, just read the case.
In People vs. Tsu, this is 2004 after the 2000 Rules, the
police applied for search warrant in Pasay, they wanted to
search Quezon city, can this be done? Yes, if there is a
compelling reason.
Now in Teriton vs. Taypan, the crime committed was an
Intellectual Property violation. Can you apply for a search
warrant from a court that is not an IP court? Yes. Because
Section 2 says, any court. The requirement here is territorial
jurisdiction. As long as that court is within the territorial
jurisdiction of the place where the crime was committed then,
that is fine. You can apply for a search warrant in the MTC
even if the crime is Murder, if it is the only court that available
or accessible.
In relation to Section 2, which is very important, we have
these cases.
Re: Request of Police Director July 17, 2009
Focus on Section 2 and what this AM 03-8-02 is all about.
Why is this AM an exception to Section 2?

Who are the judges that can issue search warrants that can
be enforced outside the Judicial Region?
-

already outside the judicial region, different judicial regions na

ito. So, territorial jurisdiction here should mean the Judicial
Region.

15

It may be served even outside the juridical territory of the

said court. But it does not apply to all crimes. It is limited only
to the special laws listed in the said AM:
Illegal Gambling, illegal possession of fire arms and
ammunitions, RA 9165 - violation of Dangerous Drugs Act of
2002, Intellectual Property code, Anti Money laundering act of
2001, Tariff and Customs code, and others hereinafter
enacted by the Congress and included therein by the SC

Page

So let us go to Section 3, what may be seized by virtue of a

search warrant? Can you seize a house? Can you seize a
parcel of land?
-

These are the Executive Judges, as well as the Vice executive

judges particularly of the RTC of Quezon City and Manila.

So, what should be seized? Properties related to the offense,

not something far out. If the offense is RA 9165, dangerous
drugs act, then the shabu, gadgets and paraphernalia,
container, etc., but other ano,like the bounced check, hindi na
yan, that is not related anymore.

So, Section 2 says, courts can only issue search warrants

within their territorial jurisdiction, for compelling reasons,
within the judicial region.
Now, under AM 03-8-02, of the SC, for these crimes, these
heinous crimes listed in the RPC, Illegal Gambling, illegal
possession of fire arms and ammunitions, RA 9165 - violation
of Dangerous Drugs Act of 2002, Intellectual Property code,
Anti Money laundering act of 2001, Tariff and Customs code,
and others included by the Congress and by the SC, these
crimes, the Executive judge or if they are on leave, the Vice
executive judges of the RTCs of Manila and Quezon City only,
shall have the authority to issue search warrants that may be
enforced outside the judicial region. But the application
cannot be made by just anyone, the application must be filed
by the NBI, PNP, or the ACTAFF anticrime task force of the
AFP.
This is a special exception to Section 2. But it only involves 2
courts, the RTC of Manila and Quezon City only and the ones
allowed are only the Executive judges. There is only 1
executive judge. Or the Vice executive judge if the Executive
judges are on Official Leave of Absence or not physically
present in the station.
Let us go to Marimla vs. People
This a different AM. AM-99-10-09-SC, the other one is AM
03-8-02.
Under AM-99-10-09-SC, there are additional entities that can
file, PAACPF and the ----Basically these 2 AMs are similar, they are exceptions to the
rule under Section 2 of Rule 26.
Please take note, although the wording here is territorial
jurisdiction;
-

This really means outside the judicial region kasi kung

territorial jurisdiction doesnt make a difference, it will fall
under compelling reason. The fact that the judge of the RTC in
Manila could issue a search warrant in Pampanga, that is

NO. Only personal property, movables. Any kind of personal

property? NO. Personal properties subject of the offense.
Stolen or embezzled or other proceeds or fruits of the offense,
or used or intended to be used for committing an offense.

What if the property was seized and the warrant turned out to
be void, pero na seize na yung property. Can the property be
returned to the person from whom it was seized?
-

It depends. If it is illegal per se, kung drugs, or shabu, hindi

na ibalik. If it has a knife which has the blood of the victim,
hindi na.
Of course merong mga violation of the IP code, there is this
company manufacturing LIVES jeans, and the warehouse was
seized by virtue of a search warrant, what if the warrant is not
valid? Kailangan isuli yun, until such time that the court
declares that there was infringement, anyway, you will take
that up in your property.
So, for the next topic we will just take this next week. Please
dont try to impress me with other things from other subjects
in answering the exam. Impress me with the rules, with what
you have learned. Mas nakakaturn-off.
August 6, 2015

Rule 126, Section 11. Receipt for the property

seized. The officer seizing property under the
warrant must give a detailed receipt for the same
to the lawful occupant of the premises in whose
presence the search and seizure were made, or in
the absence of such occupant, must, in the
presence of at least two witnesses of sufficient age
and discretion residing in the same locality, leave a
receipt in the place in which he found the seized
property.

So it is not enough for the searching officers to just seize

items and just leave. There must be an itemized list of the

seized items, and since these seized items have been taken
by the officers, then they must leave a receipt. One who
receives must sign a receipt.

Quintero vs NBI

The occupants of the place to be searched were not actually

present during the present. May a member of the searching
party sign the receipt? The SC said that the procedure is
irregular. The receipt issued by the seizing party showed that
it was signed by a witness. The one who signed rather was a
policeman who accompanied the agents of the NBI. So who
should sign the receipt? It is the member of the searching
party. When the search warrant is issued, it is directed
towards a certain body. It could be the NBI. It could be the
police. If it is directed towards the NBI, then the NBI will
conduct the search; then the NBI should for sign the receipt.

People vs Del Castillo

This case is weird. After the house where accused stayed was
searched by virtue of a warrant, the police asked her to sign
an inventory of the articles seized. Who should sign the
receipt? Its supposed to be the searching officer! Ipapapirma
mo doon sa may-ari ng bahay??! Then it is already
tantamount to admission, noh! The accused was a victim of a
clever ruse to make him sign the alleged receipt which in
effect is an extrajudicial confession of the commission of the
offense. It is unusual for the accused to be made to sign
receipts for what were taken from him. It is the police officers
who confiscated the same who should have signed receipts. It
is very clear in Section 11. The searching officer is the one
who should sign the receipt, and not the person whose house
was searched.

Section 12. Delivery of property and inventory

thereof to court; return and proceedings thereon.
(a) The officer must forthwith deliver the property
seized to the judge who issued the warrant,
together with a true inventory thereof duly verified
under oath.
(b) Ten (10) days after issuance of the search
warrant, the issuing judge shall ascertain if the
return has been made, and if none, shall summon
the person to whom the warrant was issued and

(c) The return on the search warrant shall be filed

and kept by the custodian of the log book on search
warrants who shall enter therein the date of the
return, the result, and other actions of the judge.
A violation of this section shall constitute contempt
of court.(11a)

16

Any of those will give the arresting officer the right to search
him. So, incident to an arrest is a rightful or lawful search,
even though there is no search warrant.

The duty of the searching officers to deliver the items seized

by him to the court which issued the search warrant is
mandatory.

Page

require him to explain why no return was made. If

the return has been made, the judge shall ascertain
whether section 11 of this Rule has been
complained with and shall require that the property
seized be delivered to him. The judge shall see to it
that subsection (a) hereof has been complied with.

TAKE NOTE. The arrest must come first. Do not search like,
Uy, nakakita ako ng Shabu, then you arrest; It should be
that there must first be an arrest and then you search.

xxxx

Requisites for a valid search incident to a lawful arrest:

Do you remember taking up RA 9165 in your Criminal Law?

What is the procedure after the Buy Bust Operation? Where
should the drugs be brought? Not the Court. No.
i.

If a person is arrested, where should the police bring him? Do

you remember? The nearest police station. But under Section
12, the officer must deliver the property seized to the judge
who issued the warrant.

Theres a procedure. Give to the NBI, then chemist, analysis,

and bla bla bla, this and that. So there seems to be a conflict
between the substantive law and procedural law. This case of
People vs Del Castillo is a drugs case, but Buy Bust is different
from a search pursuant to a search warrant. In Del Castillo,
there was a search warrant issued. In RA 9165, the procedure
is not to deliver the seized items to the court.

ii.

iii.

Okay lang if it is a gun or drugs to be delivered. What if it is a

bulldozer? Dalhin mo sa judge?!

People vs Del Castillo (The same case earlier.)

After the police seized the shabu by virtue of search warrant,

they delivered it to the PNP Crime Laboratory for examination,
instead of the court issuing the search warrant.

The Supreme Court said that the procedure was not proper.
The rule says to deliver it to the court. Trial Courts are known
to take judicial notice of the practice of the police in retaining
possession of confiscated specimens suspected of being
marijuana by immediately forwarding them to the NBI for
examination before filing a case with the city prosecutors
office. The mere tolerance by trial courts of such a practice
does not make it right. This violates the mandatory
requirements of the law and defeats the very purpose for
which they were enacted.

An arrest must be made by virtue of an arrest warrant

or is a valid warrantless arrest;
The search must be limited to the person accused and
the place in his immediate control. (So if that person was
arrested in the street, you can only search him. You cannot
search his house. But if he was arrested in his house, then the
place within his immediate control.)
The Search must be contemporenous or simultaneous
to the arrest, or the search must be after (definitely not
before).

What is the purpose of this exception?

Section 13. Search incident to lawful arrest. A
person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission of
an offense without a search warrant. (12a)

1.
2.

In order to find out if the accused has weapons in which

he can use for escaping or harming others.
To find out if his person or the place within his
immediate control, there are matters which are related to or
are instruments of the crime.

2. Consented Search
We have what we call Valid Warrantless Searches. You
have already discussed this in your Consti, so we will just go
through it briefly.

That person must have been lawfully arrested by virtue of a

valid warrant of arrest, or if it was a lawful warrantless arrest
(Ex, flagrante delicto, At pursuit arrest, the Freshly
Committed Doctrine, or escaped from detention). Recall our
discussion in Rule 113.

Even if there is no warrant, but if the police knocks on your

door and says, We are the police; we would like to search
your house. If you say yes, thats consented.

What if it is the daughter of the driver (8 years old) who

opens the door. Sabi ng police, Excuse me, we are the police,
we would like to search your house. Sabi nung daughter,
Okaaaay! Is that consented search? NO.

1. Search Incident to a Lawful Arrest

Requisites for a Valid Consented Search
Tenorio vs CA

Requisites:
i.
ii.
iii.

Principles Established by Jurisprudence

17

The person must possess such right to give consent;

The person has notice of the existence of such right;
The person has the intention to relinquish such right (If
the police threatens you with a gun to search your house, no
intention here). Consent must be voluntarily and willingly
made.

There must be prior justification for being there;

The police must come across the evidence inadvertently
or accidentally; and
The illegality must be immediately apparent.

Page

i.
ii.
iii.

Requisites:
i.

4. Search of Moving Vehicles

a)
There are two kinds of searches:

Consent in warrantless arrests must be express. In

some cases, the SC said, mere silence does not constitute
consent. If the police knocks at your door and says, We are
the Police and we want to search your house, tapos tingnan
mo lang siya. Is that consent? If it is in your house, NO.

i.
ii.
a)
b)

In some cases, if it is in your house and you do not react,

silence does not mean consent. But there was this case, it
was a car. Police wanted to search the trunk of the car. Hindi
umimik yung driver. So the police searched the car and found
something there. The SC said, silence means consent.
Confusing, diba?

General or Visual Search - allowed in checkpoints. The

police can simply look.
Extensive Search
Opening of compartment, bag or drunk
Body Search

ii.
iii.

6. Search in the Enforcement of Customs Law

Are extensive searches allowed?

Requisites for Valid Warrantless Search:

Yes, but there are requisites:
i.

The burden of proof that there was a waiver of such

right rests on the prosecution.

Only the person whose rights have been invaded can

give consent to a search. The consent can be authorized to
another by express delegation. For example, if the owner of
the house is not around and the police wants to search that
house and calls up the owner and the latter approves and
gives express consent to helper, then thats fine.

a.
a)
i.
ii.

When there is probable cause

What constitutes probable cause for extensive
searches in moving vehicles?
There is reasonable belief that the motorist
that is being searched is an offender because of a specific
report wherein the person is described with particularity; or
The person about to be searched is acting
suspiciously

Can you consent to an extensive search?

If the consent was made by the owner for the search of

one object, the search for other items is not valid. Do you
remember the case of incident to an arrest Veroy vs Layague?

This is a Davao Case. The Veroys live at SkyLine.

Mr. Veroy was assigned to work in Manila. The whole family
was there. The house was empty, but there was someone to
take care of the house. There was a word that rebels were
hiding in that house. The police called up Mrs. Veroy in Manila
and asked if they can search the house for rebels. Mrs. Veroy
agreed. The police went there and they found firearms. Where
did they find the firearms? In the drawer. It was not a valid
consented search because it was for rebels dapat.

A police officer observes an unusual conduct; acting

suspiciously. This unusual conduct gives a conclusion, in the
light of his experience as a policeman, that a criminal activity
may be at foot. And the person he is dealing with is
dangerous. What should the police do?
In the course of investigating this procedure, he
identifies himself as a policeman, and makes reasonable
inquiries.
Nothing in the initial stage of the encounter serves to
dispel his reasonable fear for his own or the others safety.
He is entitled for the protection for himself and others in
the area, to conduct a carefully limited search of the outer
clothing in an attempt to discover weapons which may be
used to assault him.

General Rule: In search of moving vehicles, silence or failure

to object may be considered consent.

Exception: If the circumstances were so intimidating or

coercive, silence is not consent.

a)
i.
ii.
ii.
iii.

a)
b)
c)
d)
e)
f)
g)

The Search must be conducted by persons exercising

authority under the Customs Law.
Who can they be?
Customs Police - not ordinary policemen
(Can Ordinary Policemen conduct as well? Yes, if they are
authorized by the Customs to conduct the search.)
The Search must be for taxable and illegal
items.
There must be probable cause. Mere report is sufficient
to constitute probable cause. Any kind of report. It is not
necessary that the person is acting suspiciously.
The search must be limited to:

Persons
Vehicles
Vessels
Aircraft
Land Enclosures
Warehouses
Stores

YOU CANNOT SEARCH DWELLING HOUSES UNDER THE

TARIFF AND CUSTOMS CODE

5. The Stop and Frisk / Terry Search

7. Airport Security

3. Seizure of Object in Plain View

This is taken from the case of Terry vs Ohio.

8. Jail Security

If you want to enter Maa City Jail, you must allow yourself to
be searched. This is recognized as part of precautionary
measures.

9. Search During Exigency or Emergency

There were times during Martial Law that courts were closed
for months.

(All of these exceptions pertain to the State. Because if you

go to Marco Polo for example, you have to open your trunk.
You have to open your hood. You cannot invoke this against
private institutions. You have to allow yourself to be
searched.)

THE EXLUSIONARY RULE:

Any evidence obtained in violation of Section 2, pursuant to

an illegal search and seizure, is inadmissible for any purpose
in any proceeding.

That do you call those things things pursuant to illegal

search? Fruits of a poisonous tree.

When can the Exclusionary Rule be invoked?

i.
ii.

When the search and seizure is conducted by virtue of a

warrant, but the warrant is void;
For search and seizure conducted without a warrant and
it does not fall under the exceptions that we discussed.

Principles:

Any product of an illegal search and seizure operation

shall not be admissible in evidence.
If an illegal item is confiscated, it may not be used
against the accused, but it will not be returned to him either.
The exclusionary rule is not applicable to arrests. If one
is illegally arrested, the act of illegal arrest will not cause the
case against the accused to be dismissed by virtue of the
exclusionary rule.

18

Page

Every person who goes through the sterilized area should

allow oneself to be searched. This is because of the gravity of
the safety interest involved. There is reduced expectation of
privacy associated with air travels.

Section 14. Motion to quash a search warrant or to

suppress evidence; where to file. A motion to
quash a search warrant and/or to suppress
evidence obtained thereby may be filed in and
acted upon only by the court where the action has
been instituted. If no criminal action has been
instituted, the motion may be filed in and resolved
by the court that issued the search warrant.
However, if such court failed to resolve the motion
and a criminal case is subsequent filed in another
court, the motion shall be resolved by the latter
court. (n)

What do you mean by a motion to quash a search warrant?

A warrant has been issued and you do not want that warrant
to be executed for whatever reason. You file a motion to
quash the warrant.

What if the warrant has been issued and items have already
been seized by virtue of the warrant? You dont want those
items to be used as evidence. You file a motion to suppress
evidence.

Where do you file the motion to quash or suppress if it

involves a Valid Warrantless Search? Of course, you cannot
file a Motion to Quash a warrant in this case, but you can file
a Motion to Suppress Evidence if the search was illegal. The
answer to the question is not provided by the rules.

Epic vs. Judge Ulat Marredo

a warrantless search and seizure may be conducted by peace

officers. The only issue we should determine is whether there
was probable cause to justify such warrantless search and
seizure.

They flagged the vehicle down but it did not stop, forcing the
police to chase it until it reached Shilan, La Trinidad. A search
of the vehicle disclosed several pieces of Benguet pine lumber.
Petitioners could not produce the required DENR permit to cut
and transport the same.

There exists probable cause to justify a reasonable belief on

the part of the law enforcers that the persons on board said
vehicle were officers of the law or that the vehicle contained
objects which were instruments of some offense.

Revaldo vs People

There is no question that the police officers went to the house

of petitioner because of the information relayed by Sunit that
petitioner had in his possession illegally cut lumber. When the
police officers arrived at the house of petitioner, the lumber
were lying around the vicinity of petitioners house. The
lumber were in plain view. Under the plain view doctrine,
objects falling in "plain view" of an officer who has a right to
be in the position to have that view are subject to seizure and
may be presented as evidence.
July 31, 2015
Rule 112, Section 4
We will now discuss Lim v IAC (?) , it's the same
judge acting on a motion to withdraw

issue: A

because of a resolution issued by the Secretary of Justice

(skip that) let's now go to this very important case of Adasa v
Abalos.
We already know that even if the information has already
been filed in Court, the resolution of the Prosecutor may still
be brought by petition for review before the Secretary of
Justice and once SoJ is reviewing the resolution by the
Prosecutor being questioned by the accused, the Court
proceedings may continue.
Business as usual in court although there is pending petition
for review. Now let's go to this case of

Here, the search involved a moving vehicle, an instance where

19

Facts: In this case, Abalos filed a complaint for estafa against

Bernadette Adasa. The office of the City Prosecutor issued a
resolution finding probable cause. Upon the motion of Adasa,
a reinvestigation was conducted but still the Office of the City
Prosecutor affirmed its resolution. Subsequently, Adasa was
arraigned and pleaded not guilty but he filed a petition for
review befor the DoJ, the DoJ reversed and set aside the
resolution of the Office of the Prosecutor and directed the
latter to withdraw the information filed in Court.

That the procedure or any of the requirements herein

provided has not been complied with;
That there is no showing of any reversible error;

Page

Adasa v Abalos

That the appealed resolution is interlocutory in nature,

except when it suspends the proceedings based on the alleged
existence of a prejudicial question;
That the accused had already been arraigned when the
appeal was taken;

Issue: WON the SoJ may take cognizance of a petition for

review after the fact of arraignment.

That the offense has already prescribed; and

That other
legal or factual grounds exist to warrant a dismissal.

Ruling: No. There are two seemingly conflicting provisions in

this case. First is that of Section 7 of DoJ Circular 70 and
second is Section 12 of the same circular.

So take note that if the accused has already been arraigned

which happened here. She was arraigned on October 1, 2001
and on October 15, 2001 she filed a petition for review before
the DoJ. According to the Supreme Court in this case, once an
accused has been arraigned, the SOJ under its own rules
must not take cognizance of a petition for review. So, in other
words, if you are the accused, you file the petition for review
before the DoJ before you are arraigned.

First, in Section 7, it uses the word SHALL in stating

that the SoJ SHALL not give due course to petitions for review
when the accused has already been arraigned. However, in
Section 12, the provision uses the word MAY in enumerating
the grounds for which the SoJ may dismiss the petition and
one of the most important in this case is the
fact of
arraignment. Adasa here contends that Section 12 should be
applied, the directory application should be applied in this
case because of the conflicting nature of the provisions.
(Maam Questions, ???)The Court said no maam. In fact,
Section 12 bolsters the mandatory application of Section 7.
Section 7 is clear and categorical when it stated that the DOJ
SHALL not give due course to petitions for review when the
accused was already arraigned. Section 12 is actually
enumeration of the actions of which SOJ MAY take considering
the petition for review. He may reverse, affirm, modify or
dismiss motu proprio or on several grounds the petition. The
Court also noted that if given directory application, Section 12
will be contrary to the legislative intent for the Circular itself
for speedy disposition of cases maam.
SECTION 7. Action on the petition. The Secretary of Justice
may dismiss the petition outright if he finds the same to be
patently without merit or manifestly intended for delay, or
when the issues raised therein are too unsubstantial to
require consideration. If an information has been filed in court
pursuant to the appealed resolution, the petition shall not be
given due course if the accused had already been arraigned.
Any arraignment made after the filing of the petition shall not
bar the Secretary of Justice from exercising his power of
review.
SECTION 12. Disposition of the appeal. The Secretary may
reverse, affirm or modify the appealed resolution. He may,
motu proprio or upon motion, dismiss the petition for review
on any of the following grounds:
That the petition was filed beyond the period prescribed in
Section 3 hereof;

Now what happens if you are arraigned later, it does

notmatter. Like what I have mentioned earlier, the case will
continue. The important thing is, the petition is filed before
arraignment. If the accused has already been arraigned and
the petition is still there in the DOJ, then both will continue
but if the accused has been arraigned, no more SoJ, only the
case in Court will continue. So that is the decision of the
Supreme Court applying DOJ Circular, applying the mandatory
provision Section 7 which clearly instructs, It says here the
SoJ cannot and should not take cognizance of the petition or
give it due course. I hope it's clear. Now let's go to the last
case, it's another issue but it's something still enlightening

Plopinio v Carino
Facts: Plopinio here filed administrative and criminal charges
against Atty Carino. In the meantime, Atty Carino applied for
Clerk of Court of RTC in Camarines Sur. In her application, she
filled up an application form, a Personal Data Sheet which
contains a question "Have you ever been formally charged?"
For this question, she answered NO. It was because of this
that the present administrative case was filed by Plopinio
alleging that Carino did not disclose her previous charges
administrative and criminal charges which were already filed
against her.
Issue: On the determination of what the term formally
charged means. WON Atty Carino has indeed been formally
charged.
Ruling: In so ruling, the SC held that in criminal cases, the
determination of whether a person is deemed to have been

formally charged is found in Section 4 of Rule 112 of the

Revised Rules on Criminal Procedure. Under this section, if the
investigating officer finds probable cause to hold the accuse
liable, then he will prepare a resolution and an information,
and the Investigating officer should submit a report to his
Superior Officer which may be the Provincial or City
Prosecutor, the Chief State Prosecutor or the Ombudsman or
his deputy. The third paragraph of Section 4 also expressly
states that "No complaint or information may be filed or
dismissed by the investigating officer without the prior written
approval or authority of the City or Provincial Prosecutor, chief
State Prosecutor or the Ombudsman or his deputy. Therefore,
the SC held that it is only upon the issuance of the resolution
finding probable cause by the investigating officer and the
subsequent filing of the information that the respondent will
already be considered formally charged and will already be
held as an accused. Thus, the reckoning point to be
considered formally charged is the filing of the information
with already the written approval or authority as in this case,
of the Ombudsman.
Ok very good. Thats why during P.I., the person charged with
the complaint is not yet called the accused but merely a
respondent. Thats why a respondent is not yet required to
take mugshots. Only when he becomes an accused that he
has to pose (re: mug shots). So when Atty Carino placed in
her Info sheet that No, I have not been formally charged, she
was actually telling the truth.

Rule 112, Section 5 (Reading of provision)

Under Section 5, we meet the second kind of probable cause.
This is determined by the Judge. Now this provision is okay
except for one tiny little phrase that makes it confusing,
totally in conflict with what we discussed he may
immediately dismiss the case if the evidence on record clearly
fails to establish probable cause. The prosecutor has just
determined the probable cause and then the judge will
determine again if there is probable cause and if none, the
judge will dismiss. Totally against with what we took up earlier
for the prosecutor to determine what is probable cause to
hold the accused for trial. This is supposed to be probable
cause to issue a warrant of arrest. This is a procedure for a
judge to take if the information is filed before him. The next
step, he will look at the file, he shall personally evaluate the
resolution of the prosecutor and supporting evidence in 10
days. Now if he finds probable cause to issue a warrant, not
probable cause to hold the accused for trial. Anyway. What
else shall be issued aside from a warrant of arrest? A
commitment order (Section 6). In case of doubt. the judge
may order the prosecutor to present additional evidence
within 5 days from notice. Whether to dismiss or not, the
issue should be resolved by the court within 30 days from the
filing of the complaint or information. Again, we have a 10day period to either dismiss or issue a warrant of arrest or
commitment order. If he will ask the prosecutor for additional
information, he must resolve that within 30 days.

20

Facts: Ombudsman and NBI filed a complaint against Sen.

Jinggoy Estrada and 15 other people involved in the crime of
plunder plus a violation of RA 3019. For Jinggoy and others
timely filed their counter affidavits. Jinggoy requested the
OMB that he be furnished a copy of counter affidavits of his
co-respondents. OMB denied the request. Jinggoy is asking for
a copy of his co-respondents counter affidavits using Section
3, Rule 112 and Rules of Procedure of Office of Ombudsman.

Page

Brion v Ruiz is the old Section 5, when judges were allowed to

conduct P.I. Lets pretend that it is the prosecutor who
conducted the P.I.

Brion v Ruiz
Facts: An information was filed against Renato Brion for grave
threats in the MCTC. He questions now the issuance of Judge
Ruiz of a warrant of arrest on February 12 before the judge
conducted a preliminary investigation. He only received the
subpoena on February 17, 2002 or after the issuance of the
warrant of arrest. So he questions now why the judge already
issued a warrant of arrest without the preliminary
investigation.
Issue: WON a judge may issue a warrant of arrest before
preliminary investigation
Ruling: The SC clarified here the difference between
preliminary investigation to determine probable cause for the
judge to issue a warrant of arrest and the preliminary
investigation to determine probable cause to hold a person for
trial. So, the SC said the PI to determine probable cause to
issue a warrant of arrest is a judicial function or for a judge to
issue a warrant of arrest and the other one is PI to determine
probable cause to hold a person for trial. According to Section
6, Rule 112 of the (Old) Rules on Criminal Procedure, the
judge may still issue a warrant of arrest without waiting for
the conclusion of the preliminary investigation so as not to
frustrate the ends of justice. So the issuance of warrant of
arrest on February 12 before the receipt of subpoena on
February 17 is valid.

Here, it was the MTC judge who conducted the PI under

Section 5 before it was amended. Imagine that you are the
judge who conducts a PI, you act as a prosecutor. You need to
determine probable cause to hold an accused for trial. Now,
once you (judge) file the information in your own court. So,
the judge received his own information and he will not
determine again probable cause. So whatever he decided as
an investigator, he can reverse as a judge. Thats a weird
situation, He is supposed to determine probable cause to
issue a warrant of arrest. But he can dismiss the case if the
information has been filed. Section 6 of the Old rule and
Section 5 now, gives the judge the authority to issue a
warrant of arrest. This is an example of how silly it was to
allow MTC judges to conduct P.I.
What is probable cause for the issuance of a warrant of
arrest? Jinggoy case.
Jinggoy Case

Issue: WON Jinngoy, as respondent, is entitled to be furnished

a copy of his co-respondents co-affidavit.
Ruling: NO. Section 3B Rule 112, did not entitle him to have a
copy of the counter affidavit of his co-respondents. Neither
was it stated in the Rules of Procedure of the Office of the
Ombudsman. Section 3B, Rule 112 of Rules of Court only
entitles him to file his counter affidavit, he is entitled to
examine the affidavits filed by the complainant and the
witnesses and also to appear before the prosecutor and
investigating team if there are clarificatory proceedings but it
is not stated there that he is allowed to cross examine the
witnesses, neither was it provided in the Rules of Court. In
the Rules of the Office of the OMB, it was only provided that
he is entitled to be furnished a copy of affidavit of
complainant and the witnesses.

In determining that kind of probable cause, what should the

court do? Does the judge need to have a hearing or trial? NO.
The judge will only need to personally examine and review the
resolution by the prosecutor to (find probable cause) to issue
a warrant or arrest and in case of doubt, the judge can, the
rules allow the judge to order the prosecutor to present
additional evidence.

Here in this case, the SC also gave us the 4 instances where

probable cause is needed to be established:

2.

Issue: What is probable cause to issue a warrant?

Rule: Probable cause (in the issuance of warrant of arrest)
pertains to such facts and circumstances which would lead a
reasonably discreet and prudent person to believe that an
offense has been committed by the person sought to be
arrested.

Yes, if you look at the provision Section 3, the procedure for

the respondent. He is supposed to file his counter affidavit
with the Court and furnish the complainant with a copy of his
counter affidavit. It does not say that say he must furnish like
5 of them co-respondents in 1 case, it does not say that that
he must furnish also (a copy) to the other respondents. He is
not entitled. A respondent is not to demand the OMB or the
body conducting the PI to furnish him a copy of the counter
affidavit of his co-respondents. There is nothing wrong with
that of bigyan sya.

1.

Facts: This is a petition seeking to nullify the warrant of arrest

issued by Judge Marquez to De Joya alleging that Judge
Marquez erred in finding probable cause to issue such
warrant.

Under Section 1 and 3 of Rule 112, where the investigating

officer in a resolution which engender a well founded belief
that a crime has been committed and the accused is probably
guilty thereof and should be held for trial.
Under Section 6 and 9 of Rule 112 (Sec5), by the judge, to
determine whether a warrant of arrest or a commitment order
shall be issued. He must determine whether or not theres a
necessity of placing the respondent under immediate custody
in order to not frustrate the ends of justice. (So what is
probable cause to issue a warrant of arrest? Thats why the
rules have to be amended because it is very unclear by giving
the judge the authority to dismiss the case is like giving the
judge the authority to determine WON the accused should be
held for trial which is totally against the rule that it is the
prosecution who determines probable cause)
De Joya v Marquez

Here, the SC tried to define probable cause to issue a warrant

it says pertains to such facts and circumstances which
would lead a reasonably discreet and prudent person to
believe that an offense has been committed by the person
sought to be arrested, its still determination of probable
cause, supposed to be the prosecution. Offense was
committed by the person sought to be arrested. {Sya ba
talaga yung nagcommit ng crime, the one who I am going to
issue a warrant of arrest against? Diba it was already
determined by the prosecution during the PI that had to be
approved by the superior?}

Redulla v Sandiganbayan
Facts: 5 complaints were filed by Commission on Audit against
Redulla and several others in the Office of the Ombudsman for
violation of RA3019 or Anti-Graft and Corrupt Practices Act.
After the investigation conducted by Prosecutor Linco, the
Ombudsmans Office filed with the Sandiganbayan 3
informations for violation Section 3(e)of RA3019 in which in
one of the informations, Redulla was one of the accused.
Redulla then filed with the Office of the Special Prosecutor a
motion for reinvestigation which was granted. After the
reinvestigation, the OSP found that there was no probable
cause to charge Redulla and recommended the withdrawal of
the information. Ombudsman Desierto then approved the
findings of the OSP and filed the motion to withdraw the
information with the Sandiganbayan. The motion was granted
and subsequently, the information was withdrawn. However,
after a year, the new Ombudsman, in the person of OMB
Marcelo ordered the review of the original complaints against
Redulla which was filed by COA. Acting on the order,
Prosecutor Coresis then reviewed the complaints and found
that there is sufficient evidence to charge Redulla for violation

Issue1: WON the review of the original complaints and the

subsequent refilling of a new information upon an order of the
new OMB is valid.
Ruling: Yes, it was valid, There was nothing irregular in the
review of original complaints and the filing of the new
information. It is discretionary upon the OMB if he will rely
mainly on the finding of the investigating prosecutor in
making a review of the latters report and recommendation.
As a matter of fact, as provided in Section 4, Rule 112 of the
Rules of Court, when the investigating prosecutor
recommends the dismissal of a complaint but his
recommendation is disapproved by the OMB or his deputy on
the ground that probable cause exists, the OMB may by
himself file the information against the respondent or order
another assistant prosecutor to do so without conducting
another PI. Thus, the OMB cannot be faulted when he arrives
with a conclusion different from that of the investigating
prosecutor because the investigating prosecutor can merely
recommend the dismissal or file the information but the OMB
has the authority to approve or disapprove the same.
Issue2: WON the dismissal of the motion for judicial
determination of probable cause by the SB was proper
Ruling: Yes, this is in line with the Courts policy of noninterference with OMBs constitutionally mandated powers.
This is not only in respect of the investigative or prosecutory
power of the OMB, but upon practicality as well. Otherwise,
the Court will be extremely swamp with everytime they are
compelled to review the exercise of discretion on the part of
the fiscal and prosecuting attorneys each time they file
information or dismiss the complaint filed by a private
complainant.

So, if you notice that even though we have this Section 5

which allows the Court to dismiss the information after
reviewing the records. The SC in many cases does not agree,
the Court can dismiss because of the fact that a PI is already
conducted and if you look at this case, how many PIs were
conducted, there was a reinvestigation by OMB(Desierto then
Marcelo). So why should the Court determine on WON to
dismiss the case on the ground that there is no probable
cause to hold the accused for trial. Precisely because the
probable cause that the Court has to determine only once the
information is filed is WON to issue a warrant of arrest. Why
was a motion for judicial determination of probable cause filed

21

here? Because there was no more avenue for Redulla because

this is the OMB. You cannot question the resolution of the
OMB with the Secretary of Justice. You can only question the
prosecutors resolution who is an underling of the SOJ. The
OMB is an independent body. So theres no SOJ na
mapuntahan ditto so nagfile nalang sa SB but still the SC said
no and then there was an argument that there was denial of
due process. Is it not that Section 5 allows the Court to ask
for additional documents by the prosecutor and all those
things. But the SC said two different OMB have already
handled the case so there was already sufficient (evidence) to
satisfy the resolution of OMB Marcelo. He was able to file his
counter affidavit, there was also a reinvestigation. So there
was no violation of due process.

Page

of RA 3019. So, a new information was filed in SB against

Redulla. Redulla thereafter filed a motion for judicial
determination of probable cause with Sb. He argued that since
the OSP and the previous OMB already caused the withdrawal
of the information against him on the ground that there was
no probable cause to charge him, the filing or re-filing of the
new information which is based on the same facts and
transactions should not be allowed. However, the SB denied
the motion of Redulla and his petition to file before the SC.

Yes, the SC asks why did the Judge dismiss the case for lack
of probable cause eh yan na yung probable cause oh found by
the investigating prosecutor plus the Superior plus the DOJ
and the Judge will dismiss it because the private complainant
did not want to testify? It is not a function of the Judge, it is
the function of the prosecutor, it is the function of the
Executive to determine probable cause. So a dismissal will
negate the entire process of PI. From the decisions of the SC,
even though it is there in Section 5 that the Judge may
dismiss the case, asa ka pa. Dinismiss na, nireverse ng
Supreme Court. The Judge based it on authority in Section 5
but the SC said NO, you dont have such authority.
August 3, 2015
Search Warrant, Rule 126

AAA v Judge Carbonell

Facts: An information was filed against ??? for the crime of
rape. Then he filed an urgent motion for judicial determination
of probable cause for issuing of warrant of arrest. Then Judge
Carbonell granted the motion and ordered AAA, the alleged
rape victim and her other witnesses to take the witness stand.
However, AAA did not take the witness stand and said that the
documentary evidence was enough in order to sustain the
existence of probable cause. In 4 settings, AAA failed to
attend the hearings and take the witness stand. Because of
that, Judge Carbonell dismissed the case on the ground of
lack of probable cause for the purpose of issuing a warrant of
arrest because of AAAs failure to take the witness stand.
Issue: WON the case can be dismissed on the ground of lack
of probable cause for the purpose of issuing a warrant of
arrest because of AAAs failure to take the witness stand
Ruling: NO. Based on established doctrines and principles, the
Judge can evaluate the reposrts and supporting documents
submitted by the Fiscal and on the basis thereof issue a
warrant of arrest or in the basis thereof he finds no probable
cause, he can order the witnesses to submit supporting
affidavits and in the basis thereof issue a warrant of arrest.
SC said that there is a difference between a preliminary
inquiry and a preliminary investigation. A preliminary inquiry
is a function of the Judge and in the Preliminary inquiry the
purpose is to determine probable cause in order to issue a
warrant of arrest. In Preliminary Investigation, that is the
function of the investigating prosecutor and the purpose is to
determine WON there is reasonable ground to believe that the
accused is probably guilty of the offense charged. According
to the SC, the Judge can dismiss the case without giving
credence to the resolution by the Assistant Provincial
prosecutor of the Superior of prosecutors and the resolution
of DOJ all of which agreed to the existence of probable cause.
Therefore, it was unnecessary for the Judge to take the
further step of requiring AAA to take the witness stand.

Section 2, We will look at the case which will provide for the
exception to Section 2.
Lets go to Section 3, so what may be seized by virtue of a
search warrant? So, a search warrant aside from searching
also authorizes an officer to seize the items. According to
Section 3, only (1) personal property subject of the offense,
(2)properties stolen or embezzled and other proceeds, or
fruits of the offense; or (3) used or intended to be used as the
means of committing an offense.
Personal property that is related. Its time to discuss Section
4. Remember the provisions under Rule 112, what the judge
must do before he issues a warrant of arrest.
Remember a search warrant may be issued even if there is no
pending a case. A warrant of arrest can only be issued when a
complaint or information has already been filed in court. We
have already an accused, but in searching, we dont need an
accused. Of course there is no prohibition of issuing a search
warrant if there is already a pending case kasi yun yung
nakalagay ditto sa Section 2, If a criminal action has already
been filed, the application shall only be made in the court
where the criminal action is pending. So pwede pa rin.
So what are the requisites? According to Section4, a search
warrant shall not issue except upon probable cause. The
probable cause that is determined by a judge in issuing a
warrant of arrest is different from the probable cause that is
determined in issuing a search warrant. It must be in
connection with one specific offense. One offense only. Di
pwedeng chopsuey na offense, estafa, robbery, rape, etc in
one warrant. No way, The probable cause must be determined
personally determined by the judge. So how does the judge
determine the probable cause? So this time, it is specifically
stated in Section 4 that is determined only after examination
under oath or affirmation of the complainant and the
witnesses he may produce. It is no longer personal evaluation
of the record, it is personal examination of the complainant
and his witnesses and the warrant must particularly describe
the place to be searched and the things to be seized which
may be anywhere in the Philippines. So, it does not mean that

(1)

(2)
(3)
(4)

There must be an application in writing under oath. The

complainant could be a policeman, it could be an NBI, a PDEA
or whatever, it could be a private person as long as he files an
application in writing under oath.
There must be a determination of probable cause by the
judge. After personal examination in the form of searching
questions. Andito yan in the Constitutional provision.
It can only be issued in connection with one specific offense.
It must particularly describe the place to be searched which
may be anywhere in the Philippines or the objects to be
seized.
(Consti. Kasaba )
So the cases here in the book involve all requisites for
issuance of Search warrant and specific cases discussed in
Consti. The PCOP case wherein it was the entire 100 hectares
of PCOP area, is that specific? No. And what does probable
cause mean in the issuance of a search warrant? Such facts
and circumstances which could lead a reasonably discreet and
prudent man to believe that an offense has been committed
and that the items, articles, objects sought to be seized in
connection with said offense or subject to seizure and
destruction by law is in the place to be searched. In Pena v
CA, the SC said the Judge must examine the witnesses
personally; the examination must be under oath. The
examination must be reduced in writing in the form of
searching questions and answers. If there is no personal
examination of the judge then the warrant is void. So, wag
niyo naman sabihin pagdating ng 4th year na pareho man lang
ang warrant of arrest and search warrant. You must be able to
distinguish because these are two different things issued at
different times, different circumstances and under different
requirements. (Consti Kasaba napud ) So a judge cannot
merely adapt questions and answers by a public prosecutor.
SO that is probable cause in the issuance of a search warrant.
I dont want to dwell on that because you are presumably
already knew.
So what is one offense rule? Only one offense should be
stipulated in the warrant. So what if there are related offenses
punished by different provisions of the law, like RA 9165 there
are so many like using, by pushing, merong cultivating. What
if the accused, what if all three are happening in that house,
so the accused is going to be charged with using, pushing and
cultivating marijuana? Pwede na yun. A single warrant is
(satisfied?) when related offenses are punished by different
provisions of the same law, like (RA)9262 there is physical
abuse, economic abuse. Different provisions under 9262,o ne
warrant although there are several offenses. When the
accused is charged with several counts of one specific offense,
like there are 10 checks that bounced, there are 10 counts of
BP 22, do you need a separate search warrant for every check
issued? No need. When the accused is charged with several

22

counts of one specific offense, issuance of a single warrant is

sufficient.
General warrants are not allowed. Whats a general warrant?
One which fails to describe the place to be searched, the
objects to be seized and the specific offense to which the
search is related to. What do you call a warrant which has
been issued for more than one offense? (estafa, rape w/
homicide, illegal possession of firearms) that is called
Scattershock warrant. General warrants and scattershock
warrants are void and unconstitutional because these
provisions, Rule 126 are taken from the Constitutional
provision Section 2, Article 3 of our 1987 Constitution.

Page

a judge in Davao can issue a warrant to search a house in

Baguio. Ibig sabihin nito a search warrant cannot issue to
search places outside the Philippines. What are the
requisites for issuing a search warrant?

Lets go to the place to be searched. You must specify. You

must put the address. Unlike in the information, you can say
somewhere in Davao City or on or about in the vicinity of
Davao City, within the territorial jurisdiction of this court. That
is already substantial compliance. But when you enforce a
warrant you cannot, it cannot be stated there, search this
house in Davao City, you cannot do that, Oh my god! (eh di
nabuang ang pulis san pupunta)The place to be searched
must be under the control of one person. Search LandCo
Condominium, all of those units? how many floors? You have
to specify, Unit 501 in LandCo Condominium, thats enough. If
the place is a compound, occupied by various persons, the
particular unit must be indicated. (There are some families
nakatira sa compound yung mga parents, grandparents, etc.)
You have to specify which particular house, di pwede lahat.
Only the place indicated in the warrant can be the subject of
search. If the place indicated in the warrant is Unit 501, you
cannot search unit 502 or unit500. You cannot search
adjoining units divided by walls with no connecting walls. You
cannot search a place which the search team actually had in
mind. yan yung Avegail Variety Store, yun yung nakalagay sa
search warrant but it was actually the neighboring, adjacent
unit. Eh sabi ng police. Yun yung nasa isip namin, the
neighboring unit but yun lang maalala naming the Avegail
variety store. The Supreme Court said, we dont care what is
on your mind, what is stated in the warrant is that store, you
search that store not the adjacent unit because there is no
connecting door. If there was a connecting door then the
warrant is for the same place but if there is none, you cannot.
What about the object to be seized? Do you have to
specifically describe the object to be seized? Well you have to
specify. But do you have to specify in precise and minute
detail? Like the thermos that is supposed to be seized, pwede
na yung color white no need to say yung merong dent sa
ilalim. Minor discrepancies between object described in the
warrant and those actually taken do not nullify the warrant.
What if the warrant say the thermos is dirty white yun pala
hindi sya dirty white, its refrigerator white. It doesnt have to
be...As long as the same kind, if they are of the same kind
and nature. The warrant is not null and void.
A warrant is severable. It cannot be voided as a whole if some
objects are specified and specifically described and some
objects are not. They can be, the generally described objects

may be cut off from the warrant, may be separate, ignored.

Objects that are not specifically described in the warrant that
are considered contraband may be seized if in plain view.
What if in the warrant it is a gun, specifically 45, of whatever
black color with this license number. Eh sa tabi ng gun nakita
mo merong shabu, marijuana. Can those things be seized eh
wala man yan nakalagay sa warrant ba? That is an exception
under plain view doctrine.
Now lets go to some case principles. Despite that the judge
personally examined the complainant and his witnesses in the
form of searching questions must be shown by written
evidence. The judge cannot say, I did examine the
complainant and his witnesses under oath, di ba? Everything
that the judge does, there must be a stenographer there
taking notes. He must have written proof. Objects seized by
virtue of an invalid search cannot be returned to the owner if
the objects themselves are illegal.
Lets not discuss the cases in the book, lets go to
Coca Cola v Gomez
Facts: Coca Cola applied for a search warrant against Pepsi
claiming that Pepsi was hoarding Coke empty bottles in their
yard. After taking the disposition of Coca Colas witnesses, the
judge here, Judge Ocampo issued a search warrant to seize
the empty Coke bottles. Pepsi filed a motion to quash the
search warrant alleging that no probable cause existed to
justify this issuance.
Issue: WON it was correct for Judge Ocampo to issue the
search warrant
Ruling: The Court ruled that a search warrant may only be
issued if there is probable cause in connection with a specific
offense based on the personal knowledge of the applicant and
his witnesses. For probable cause to exist, there must be an
underlying offense of when the acts alleged when taken
together will constitute an offense imputable to the offender
with whom the search warrant is applied for. In this case, the
acts charged which is the hoarding of empty coke bottles does
not constitute an offense or violation of a law which was the
basis for the issuance of a warrant. Then the issuance is not
valid and should properly be quashed.
This a bit complicated because you are not familiar with the
provisions of the intellectual property code yet. Just to make
it simpler. We have a search warrant issued for the crime of
estafa. And the warrant is for, to seize a gun. Even if the
complainant and his witnesses will say that theres a gun
there in the house of the person but the charge is estafa. Di
pwede. Even though the gun is specifically described, the
house is specifically described and its only one offense estafa
and even if the judge personally examined the witnesses
through searching questions under oath eh wala naming
connection. Coz it must be in connection with a specific
offense.

Section5. Examination of complainant, record The judge

must before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under
oath, the complainant and the witnesses he may produce on
facts personally known to them and attach to the record their
sworn statements, together with the affidavits submitted.
So in the cases that we will discuss on this particular topic,
pwede ba yung per forma? Or yung check check na lang yung
answer or there is a set question? No. Every application is
different from the rest. So the judge must ask questions
based on his knowledge, of what is the crime, what is the
application. He must illicit the information by asking searching
question. Di pwede na oh fill-up-an mo na yan oh if yes or no.
Thats in violation of the provision. In People v Ty, transcript of
the depositions were attached but there was, the notes of the
proceedings were apparently taken by the Clerk of Court. As
long as it is taken, it doesnt have to be a transcript by the
stenographer. Anything that is written, taken when the judge
personally examined the complainant and his witnesses. The
Bill of Rights does not make it into an imperative necessity
that the depositions be attached to the records of the
application for a search warrant. Hence this provision is not
necessarily fatal when the deposition (you will learn more
about that when we reach civpro)

magflush na yang drug na yan. You cannot say hello we are

the police, we have a warrant issued by judge so and so, Di
wala na, pagdating ng police wala na yung mga shabu. This
standardas opposed to a probable-cause requirement
strikes the appropriate balance between the legitimate law
enforcement concerns at issue in the execution of search
warrants and the individual privacy interest affected by noknock entries.

If a search warrant is executed in a specific place stated in the

warrant and there is a specific crime related to the object
specifically described with the warrant, And when the police
get there with nothing and sees absolutely nothing. Can you
say that the warrant is void because it is not issued based on
probable cause? Of course not. Coz that would mean that
most warrants issued can be voided because of that reason.
Naclean up na cguro yan. So what is the important thing is
that the judge issued the warrant after complying with the
requirements of the Rule. If nothing is found then try to look
for another way to find what it is that you are looking for, But
you cannot render the warrant null and void. (applaud to Zara
)

How long? You already announced yourself as the police. How

long must you wait before you break open the door? As to
how long an officer implementing a search warrant must wait
before breaking open any door cannot be distilled into a
constitutional stopwatch. Each case has to be decided on a
case-to-case basis requiring an examination of all the
circumstances. Syempre pag drugs yan, 1second ah wala then
break na. It really depends on the situation.

23

than not there is evidence that a crime has been committed

and it was committed by the accused. Probable cause only
concerns of a probability and not absolute certainty and even
moral certainty. What evidence is required is not much an
application of the standard of proof necessary for judgment
after trial. For as long as the procedural and substantive
requirements are complied with, the court is bound to
recognize that a search warrant must be issued. The Court in
this case cited Sections 4, 5 and 6 of Rule 126. And because it
was found in this case that Judge has complied with the
procedural and substantive requirements of Sections 4,5 and
6, the Court is thus bound with his finding. The Court also
said in this case that the determination of probable cause for
the issuance of a search warrant is a duty that rests solely
upon the trial court judge. The determination of probable
cause for the issuance of a search warrant rests upon the
sound discretion of a (trial) judge.

Page

Lets go to section 5. This is a repetition. what is the Duty of

the Judge. If you see this rule this is so different from Rule
112 on how to, what are the steps in issuing warrant of
arrest.

Under Section 6 Issuance and form of search warrant. If the

judge is satisfied of facts upon which the application is based
or that there is probable cause to believe that they exist, he
shall issue the warrant, which must be substantially in the
form prescribed by these Rules.

Now we go to Section 7, it is just like warrant of arrest. If the

arresting officer cannot enter the premises he has the right to
break down the door, yes, same with Section 7.

So sections 4,5, 6 are the requisites for the issuance of a valid

(search) warrant. You see how different they are from the
requirements, requisites for issuance of search warrant. Lets
go to

Section 7. Right to break door or window to effect search. The

officer, if refused admittance to the place of directed search
after giving notice of his purpose and authority, may break
open any outer or inner door or window of a house or any
part of a house or anything therein to execute the warrant to
liberate himself or any person lawfully aiding him when
unlawfully detained therein.

Tan v Sy Tiong Gue

Facts: After posing searching questions and asking to
determine the existence of probable cause, Judge Gonzales
issued 2 search warrants. In the conduct of the search in one
of those two places, evidences were seized. However in the
conduct of the search in the other, no evidence was seized.
This prompted the accused Sy Tiong Gue to move to quash
the search warrants.
Issue: WON a negative result in the conduct of search will
mean that there is no probable cause in the issuance of the
search warrant and would thus be a ground for the quashal of
the search warrants.
Ruling: NO. The determination of probable cause for the
issuance of search warrant would only require that more likely

So this is similar to our provision in warrant of arrest, you

open, you break the door then when not allowed and refused
admittance then you can break the door or window to liberate
yourself. In the case of People v Huang Zhen Hua (September
29, 2004) Can you just break down the door without
announcing yourself, without giving notice that you are a
person of authority. This is a no knock entry. Why is a no
knock entry justify? [1] In order to justify a "no-knock" entry,
the police must have a reasonable suspicion that knocking
and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it would
inhibit the effective investigation of the crime by, for example,
allowing the destruction of evidence. If it is a drug den then

What constitutes no-knock? What constitutes breaking?

includes the lifting of a latch, if you open a door and you are
not admitted that is already considered breaking, turning a
door knob, unlocking a chain or hasp, removing a prop to or
pushing open a closed door of entrance to the house, even a
closed screen door. even if its a screen door and you open it
and push it, you are not admitted, that is already considered
breaking.

Lets go to section 8. Search of house, room, or premises to

be made in presence of two witnesses. No search of a
house, room, or any other premises shall be made except in
the presence of the lawful occupant thereof, or any member of
his family or in the absence of the latter, two witnesses of
sufficient age and discretion residing in the same locality.
So we have a valid search warrant but the search itself is not
valid because section 8 requires that the search is conducted
in the presence of the lawful occupant. What is a lawful
occupant? It could be the owner, it could be the lessee, it
could be the caretaker. It must be somebody occupying.
Pwede cguro the boarder or any member of his family.
Somebody must be there to watch the search. You cannot just
search the house, pasukan mo yan and you search, no way
because in the absence of the lawful occupant or any member
of his family, the searching party must get two witnesses of
sufficient age and discretion residing in the same locality. Get
the barangay captain, get the barangay police, get the
neighbour, whatever, get the highschool or gradeschool
principal of that particular barangay, Get those people to
witness the search otherwise sayang lang yung effort mo. The
search warrant, you went through a lot to get it and then you
(Sections 4,5,6 requisites) Pagdating doon palpak because
section 8 was not complied with. And take note in the case of
People v Del Castillo, it is not enough that the occupant is
sitting there in the sofa watching tv when the police went up
from room to room. Dapat kasama sya. He should accompany
the police to every room that is being searched. If he says
sige kayo lang jan, No. The searching party must insist, go
with us and witness our search.

Facts: Search warrant was issued in order to search the

residence of Amadeo and Connie Tira. In this case, when the
police officers together with barangay kagawad Conwi effected
the search, when they approached the residence, ErnestoTira,
the father of Amadeo Tira was at the porch, they presented
the warrant and asked to enter the premises. So thereafter
upon entering the house, together with kagawad conwi and
ernesto, they saw Amadeo and Connie Tira inside the house.
Amadeo was recently awaken and he was in the first room of
the house which was subject of the search warrant. After the
search was conducted, the searching officer asked Barangay
Kagawad Conwi, Amadeo and Ernesto Tira to sign the
certification of the said search warrant and seized items. In
this case, Amadeo and Connie Tira alleged that the said room
where the items were illegally seized was merely rented to
one Cris Tira, his nephew together with his common law wife.
They alleged that the search was illegally or invalidly done
because the lawful occupant was Cris Tira because he was the
one renting the room.
Issue: WON the search in one room of the Tira residence was
validly done in accordance with Section 8 of Rule 126 of
Revised Rules on Criminal Procedure.
Ruling: The search was validly done. The room was not
actually rented based on the evidence and the owner of the
house is actually Amadeo Tira and being the lawful occupant.
Being the owner of the house, he also had the control of the
said room where items were seized. In this case, there is a
valid compliance with Section 8 of rule 126.
And even if we say that Cris TIra is the lawful occupant of that
room in the house, what does the rule say. OR any member of
his family. Pareho naman silang mga TIra so they are
members of the same family. Besides the provision does not
say, lawful occupant of a specific room unless its a boarding
house. But this is a family house. It says here the lawful
occupant of a house, room or premises. Room if it is parang
dormitory pero this is a family house so who is the lawful
occupant eh di the owner. And by the way, if it is a search
warrant, you dont have to put the name of the owner in the
search warrant. Say room 501 of Landco, Office of Atty XYZ,
pagdating mo dun di pala office ni Atty xyz, office pala ni dr
abc. Pwede bang sabihin ni dr abc na the search is not valid
because it is the wrong owner or wrong occupant. No. It is
valid because what is required is the specific place. you dont
have to put the name of the person there. if dr abc is the
lawful occupant then sya na yung witness. you dont have to
look for atty xyz.
Sony v Bright Future
Facts: This involves search warrant issued by RTC Manila
against Bright Future on the basis of a complaint filed by Sony

24

Peole v Tira

Computers for copyright and trademark infringement. The

search was conducted on April 2005 and thereafter, Bright
Future contended that the search and seizure conducted was
illegal because they used a bolt cutter to be able to enter the
area, also there was a violation of section rule 126 as regards
the two-witness rule. They also contended that Sony
Computers has no right in participating in the search and
seizure.

Page

Lets go to

Issue: WON there was a violation of Section 7

Facts: Sometime in Augist 1992, LTO and Special Mission

Group armed with a search warrant raided the residence of
Rosario Panuncio, a jeepney operator. During the raid, The
operatives seized several LTO documents and after that
Rosario Panuncio together with 5 other people: the barangay
chairman, Manalo, Velasco and 2 employees of Panuncio
signed the certificate of orderly search. Now Panuncio alleged
that she was not at home when the search was made and she
was only forced to sign the certificate of orderly search and
the search warrant together with the receipt.

Ruling: There was no violation because the use of the bolt

cutter was reasonable underlying the circumstances. The
search team when they conducted the search and seizure
operations asked for permission from the security guard. Also,
they presented a copy of the search warrant which proved
that they had the authority to search the premises and yet
there is an unreasonable refusal on the part of the security
guard to allow them access to enter the premises.

Issue: WON there is violation of Section8 of rule 126, and

WON the search was validly conducted.

Issue: WON there was a violation of Section 8

Yes, so if the lawful occupant is not around, you can call the
brgy people to witness the search. Besides, she signed
whatever meaning she was around, so she has to proved that
she was not around when the search was conducted.

Ruling: There was a violation because Section 8 because it

provides that the search must be conducted in the presence
of the lawful occupant thereof, or any member of his family or
in the absence of the latter, two witnesses of sufficient age
and discretion residing in the same locality. Sc ruled that the
Security guards cannot be considered as lawful occupants of
the premises, they are also not members of the lawful
occupants family, and the security guards are not residents of
the same locality. Hence, what the search party should have
done in this case was to wait for the barangay officials to
arrive in the area before they have conducted the search and
seizure. And based on the record of the case, it was very clear
that when the barangay officials arrived, they were already
conducting the search and rescue operations. Hence, it was
not valid.
So the security guards are not considered as lawful
occupants. They dont live there. They dont occupy the
premises. They are just there to guard the premises but they
live somewhere else. So they dont fall under those people
allowed to witness the search under Section8. What about the
complainant, can they participate? Yes. Labrador v Isip, a
private complainant or a private corporation at that may
appear and file pleadings in order to maintain the validity of
the search warrant issued by the court . Also, to insure the
admissibility of the property seized during the search and
seizure, in anticipation of the criminal case that will be filed.
Yes, there is no prohibition. You can go, you can accompany
the search. There is no prohibition in the rule that the private
complainant cannot. Even then its not in the rule, you think
the policeman will put up a search without the private
complainant driving them. etc And the private complainant
has the right to insure that the search is validly made. Theres
no prohibition.
Panuncio v People

Ruling: Search was validly conducted. Under Section 8 (cite

provision) Even assuming that Panuncio was not at her house
during the search, the presence of the brgy chairman,
manalo, velasco and two employees of panuncio are sufficient
witnesses as stated in section 8 of rule 126.

lets go to Section 9, when can the search be made?Di ba in

arrest warrant, pwede naman ay any day or at any time of the
day or night.
Section 9.Time of making search. The warrant must direct
that it be served in the day time, unless the affidavit asserts
that the property is on the person or in the place ordered to
be searched, in which case a direction may be inserted that it
be served at any time of the day or night.
So, there are times when the search is done not in a house or
bodega or in an office but the person himself, well if that is
the case that the person has to be searched because the
incidents of the crime are on him, then name the person and
name the place where he can be found. Be specific, then what
if he is found somewhere else but he is the one specified in
the warrant, well, its fine. What the section is thus saying, as
much as possible, serve the warrant during the day time but
of course there are exceptions unless the affidavit asserts that
the property is on the person or in the place ordered to be
searched. How long is the validity of a search warrant?
Section 10.
Validity of search warrant. A search
warrant shall be valid for ten (10) days from its date.
Thereafter it shall be void.
From these provisions you can already cite how many
distinctions between the arrest warrant and a search warrant.
Have not thought about that? The warrant of arrest is forever
until it is executed but the search warrant is only for 10 days.
After that it should be void. It cannot be renewed. You have to
apply again.

arrested. How can he attain temporary liberty? This is the

answer - Rule 114.

25

Maam: What are the grounds for quashing a warrant? Where

do you look for the grounds?

i.
ii.

Page

May a search warrant be served twice in its lifetime? Of

course like if you are given 10 days and you go to the place
and you have not finished, you cannot say, Boss balikan
nalang naming bukas. You think you can find something there
tomorrow? Of course not. But technically, under principle, you
can use the warrant again as long as you are not finished with
your search. As long as it is within the 10 day period.

If it is not signed or issued by a judge, you can file a

motion to quash;
If it contains an order to search for real property; etc.

Section 1. Bail defined. Bail is the security given

for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his
appearance before any court as required under the
conditions hereinafter specified. Bail may be given
in the form of corporate surety, property bond, cash
deposit, or recognizance. (1a)

August 10, 2015

SEC vs. Mendoza
Garaygay vs People
Section 14 of Rule 126 is clear. Questions concerning both 1)
the issuance of the search warrant and 2) the suppression of
evidence seized under it are matters that can be raised only
with the issuing court if, as in the present case, no criminal
action has in the meantime been filed in court.

Garaygay filed a motion to quash in the RTC of Lapu Lapu city

where the criminal case was filed. However, RTC and CA
dismissed the motion on the ground that the motion to quash
a search warrant should be filed with the issuing court.

In order to acquire temporary liberty, the accused can be

released if he puts up bail.

Who puts up the bail?

xxxx
Which court should resolve the motion to quash search
warrant in a case where the court that issued it is not the
court with which the case is filed as a consequence of the
service of the warrant?

He, himself, if he has the money; or it could be a bondsman,

or a friend who can lend property..
When warrant is issued, do you have to put the name of the
owner of the house or the president of the office or the owner
of the parcel of land? NO. The only requirement is that you
have a specific object to be searched and seized related to a
specific crime in a specific location. You do not have to know
the name of the owner of the place or the name of the tenant.

It can be filed in either court - the issuing court or where the

criminal case is pending. This remedy is alternative. The court
which takes first cognizance of the case results to the
exclusion of the other. Here, when the Lapu Lapu RTC judge
decided upon the motion to quash the warrant, it excluded the
RTC of Manila which is the issuing court.

To guarantee this persons appearance before the court.

To comply with the administration of justice to the
convenience of the person accused, but not yet proven guilty.
To relieve the accused of the imprisonment, and the
state, of the burden of keeping him pending trial.

Who can file a motion to quash?

In Custody of the Law

As long as youre affected by the item that is being

presented in evidence.

August 10,2015

Skechers vs Inter Pacific

(Maam: The court where the case is pending will resolve the
issue, even if the motion is filed with the issuing court.)

So what is the purpose of the bail?

You are already detained, then you put up bail;

Or, maybe you are not yet detained but there is already
a warrant of arrest issued against you. At this instance, you
can submit yourself into the custody of the law.

RULE 114 - BAIL

Pedaranga vs People

WON the motion to quash search warrant already issued

should be granted on the ground that there is no probable
cause. SC ruled that the motion to quash may be granted
since the power to issue a search warrant is exclusively
vested in the trial court judge. Inherent to that power is the
power to quash a warrant already issued.

So what happens? The accused has been arrested by virtue of

a valid warrant of arrest, or he was lawfully arrested without a
warrant, and the inquest was already conducted or is being
conducted.

There is what we call the Theory of Constructive Custody.

Comendador vs De Villa
Now, what can he do? He is already detained. He was

xxxx

Who decides what type of bail to post? It is the person who is

applying for bail who will decide what kind of bail to post. It is
not for the judge nor the prosecutor. Not for anyone else.

Extradition Proceedings are sui generis and that the quantum

of evidence needed to grant bail is clear and convincing
evidence. There was proof here that Munoz was not in flight
risk.

Lets say the case was filed in the MTC, and then bail was
granted. So, the accused is out on bail during the MTC
proceedings. What if he was convicted in the MTC and he
appeals to the RTC? Can his bail continue? YES. Based on the
same bail bond, YES. Only until the promulgation of
judgment by the RTC.

26

(2a)

Page

Does the Right to Bail apply to military personnel under

court martial? NO. Otherwise, they may resume their
heinous activity.

An extradition proceeding is an administrative case but it is

like a criminal proceeding wherein the liberty of the extraditee
is taken from him; and the point of extradition proceedings is
to make the extraditee liable for the offenses he committed.

xxxx

What is the only time that the bail will not be enforced?
When it is cancelled. It shall lose its effectivity whether or
not judgment is rendered by the RTC.

Can the right to bail be waived? YES.

There is express (I am not going to apply) or implied (you
dont raise the issue at the earliest opportune time).

The present jurisprudence dictates that bail is allowed during

extradition proceedings.
What are the instances where the accused has to appear?
i.
ii.

Government vs Purganan

Section 2. Conditions of the bail; requirements.

All kinds of bail are subject to the following
conditions:

In extradition cases, the person to be extradited CANNOT

apply for bail.

xxxx

HK Government vs Olalia

Munoz was charged with violation of Hong Kong laws. Since

Munoz was in the Philippines, the DOJ in Hong Kong requested
the DOJ of the Philippines to give a provisional arrest to
Munoz. This was conducted by the NBI; Munoz was arrested.
Earlier, the government of HongKong filed a petition for
extradition; Munoz at the same time filed for bail. The
government of Hong Kong challenged this, arguing that bail is
not available in extradition proceedings. Issue here is WON
the extraditee can be granted with bail. The Supreme Court
here granted bail. The ruling in Government vs Purganan is
abandoned.

(a) The undertaking shall be effective upon

approval, and unless cancelled, shall remain in
force at all stages of the case until promulgation of
the judgment of the Regional Trial Court,
irrespective of whether the case was originally filed
in or appealed to it;

iii.

During arraignment - he has to plead guilty or not guilty

When he needs to be identified - usually during pretrials (There are times when the accused has to be present all
the time for identification)
Promulgation of Judgment

Requisites for Trial in Absentia

1.

The accused fails to appear without justifiable cause

despite due notice.
(Maam: Basta that is in your Consti.)

(b) The accused shall appear before the proper

court whenever required by the court of these
Rules;

Remember, it is the responsibility of the bondsman to

surrender the accused for execution. He is no longer allowed
temporary liberty once convicted.

(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

The approval of the bail will contain all the conditions. The
accused can read what he should do when he is out on bail.

(d) The bondsman shall surrender the accused to

the court for execution of the final judgment.
The original papers shall state the full name and
address of the accused, the amount of the
undertaking and the conditions herein required.
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.

Section 3. No release or transfer except on court

order or bail. No person under detention by legal
process shall be released or transferred except
upon order of the court or when he is admitted to
bail. (3a)

August 11, 2015

27
Page

So those detained, can they be released by some governor?

NO. Only the court can allow his release or transfer. And of
course, when he is admitted to bail, he can be released.

When can a person apply for bail?

One can apply for bail if it is a matter of right. We are talking
about a situation here where a person is being tried before
the MTC, or the RTC.

changed the nature of the offense from nonbailable 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.

Orbe vs Digandang
Any case under the jurisdiction of the MTC is bailable - crimes
with imposable penalty of not more than 6 years.
There are only two ways under Section 3 to transfer or
release a person. Other reasons are not admissible.
Ambil vs SB

Mayor Francisco was accused of murder, thus he became a

detention prisoner. Then governor Ambil ordered the warden
to transfer to custody of Francisco to his residence. This was
done without any court order.

What if the MTC already convicts the accused? Bail is still

available. (After conviction, pending appeal). Meaning, the
case is being appealed. All cases from the MTC go to the RTC.

So, if it is just after conviction, what becomes of the accused?

He becomes a convict. Can he apply for bail? NO. It has to be
pending appeal - that he appealed his case to the RTC.

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
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;

SC ruled that the transfer of custody which was ordered by

Ambil was invalid because this is violative of Section 3, Rule
114. The power to order release or transfer is vested with the
court.

If there is a particular law that says that a government official

can transfer a detainee from one detention center to another
place, thats fine because our substantive laws prevail over
procedural laws.

Section 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 recognize as prescribed by law 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 of an
offense not punishable by death, reclusion
perpetua, or life imprisonment. (4a)

What about RTC cases?

Before conviction - it is a matter of right, provided that the
imposable penalty for the offense is not RP, LI, or DEATH

(d) That the circumstances of his case indicate the

probability of flight if released on bail; or

What if the penalty is capital? It is still a matter of right,

provided that the evidence of guilt is not strong.

(e) That there is undue risk that he may commit

another crime during the pendency of the appeal.

What if is is already in the Court of Appeals? You look at

Section 5.

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)

Bail is a matter of discretion - It means that the court may or

may not grant bail if it is shown that the accused is not one of
those mentioned in the circumstances from (a) to (e).
Section 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

Bail is only available if there are still appeals.

Before conviction, if the evidence of guilt is strong, the bail

should be denied.

After conviction of RTC, pending appeal. And the crime is

punishable by Prision Mayor to Reclusion Temporal, it will be
denied if the circumstances in Section 5 are present.

Lets go here between conviction of the RTC and appeal before

the CA. Upon conviction by the RTC, there is a 15-day period
to file a notice of appeal before the CA. So, the accused who
was convicted by the RTC must act upon the appeal first, then
he can apply for bail. So, he can apply for bail in the RTC
where he was convicted, provided that the records of the case
have not yet been transmitted to the CA.

If the decision of the RTC convicting the accused, changed the

nature of the offense from non-baliable to bailabe.. What is
the situation here? The original charge was, kunyare, murder.
Thats a non bailable offense and it turns out that the
evidence of guilt was strong.

So before conviction, no bail siya.

28
Page

If the evidence of guilt is not strong, it is a matter of right.

his liberty. Because diba under Section 2, the bail is only

effective until judgement of RTC. But the court actually can
allow continuation of the use of bail provided there is court
approval and with consent of the bondsman.

After conviction from RTC with imposable penalty of RP, LI, or

DEATH, why is it that bail should be denied? Because if one is
convicted, then the evidence of guilt is strong. That is why
there is automatic denial.

Do we have capital offenses? Yes. Because we have offenses

with penalty of death.
San Miguel vs Judge Maceda

The penalty of the offense here is Prision Correccional. A bail

bond was imposed The prosecutor recommended the
cancellation of the recommended bail on the ground that
there was reasonable belief that San Miguel was considering
escape. Judge Maceda granted the prosecutors motion to
cancel bail. Bail was therefore cancelled.

WON the order issued by Judge Maceda. Yes. What the latter
should have done instead was to increase the bail bond if
there was possibility of escape.

But when he was convicted by the RTC, he was only convicted

of homicide. The application for bail can only be filed and
resolved by the appellate court.

Lets say the RTC denied the bail. What will the accused do?
He can file a motion before the CA or SB, questioning the
denial of the RTC. The CA or SB may review or reverse the
RTC.

What if the RTC granted the bail? Who is going to complain?

The private offended party can go to the CA or SB,
questioning the granting of the bail.

What is the effect of a mitigating circumstance that will

change the penalty?

People vs IAC

The criterion to determine whether the offense charged is

capital, is the penalty provided by law regardless of the
attendant circumstances.

Bravo vs Borja
xxxx

What do you mean that the evidence of guilt is strong?

(Section 8)

The prosecution has to prove in a hearing; the prosecution

has the burden of proof.

OCA vs Judge Lorenzo

If the court grants the application for bail, and we are still in
the situation where the bail was filed after conviction in the
RTC; it is not a matter of discretion. Should the court grant
the application, the accused may be allowed to stay on
provisional liberty based on the original bail filed. The gist is,
he must apply again, and the court will allow him to continue

Section 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)

It is the burden of the prosecution to prove that the evidence

of guilt is strong so that bail will be denied. But it is the
obligation of the judge of the court to allow the prosecution to
prove.

Where it has been established without objection tha accused

is a minor, it follows that, if conviveted, he woul be given the
penalty next lower than that prescribed by law.

Section 7. Capital offense of 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)

Section 8. Burden of proof in bail application. At

29

accused can only be convicted of homicide. So the offense

here was changed from murder to homicide. Are we talking of
Sec. 5, the prosecution is saying bail is only a discretion, etc.
No. Because there was no judgment yet by the RTC. When the
court denied the demurrer, the court is saying: accused, you
present your own evidence. So, the RTC did not convict or
acquit him yet. So, the wording of Section 4: before
conviction by the RTC of an offense.. So he would not be
convicted but the offense was changed by the RTC from
murder to homicide and therefore bail is a matter of right.

Page

the hearing of an application for bail filed by a

person who is in custody for the commission of an
offense punishable by death, reclusion perpetua, or
life imprisonment, the prosecution has the burden
of showing that evidence of guilt is strong. The
evidence presented during the bail hearing shall be
considered automatically reproduced at the trial,
but upon motion of either party, the court may
recall any witness for additional examination unless
the latter is dead, outside the Philippines, or
otherwise unable to testify. (8a)

Chua vs. CA
Rufina Chua charged Chiok in the crime of estafa. After trial,
the court set date for promulgation of decision but Chiok and
his counsel failed to appear despite notice. Trial court reset
the date. They failed to appear again. Finally, Chiok was
convicted of estafa as promulgated by the court. On the same
day, Chua filed a motion to cancel the bail of Chiok alleging
that the latter has the possibility to flee or commit another
crime. A hearing was set for the motion of cancellation of
bail. Trial court cancelled the bail of Chiok, but the latter
appealed to CA. But instead of filing petition for review, what
he filed was a separate civil action for certiorari.

The only discretionary part of the court is to determine

whether or not the prosecution was able to prove that the
evidence of guilt is strong. If the court determines that the
prosecution was not able to prove it, then the Court has to
grant bail as a matter of right.
August 13, 2015
People vs. Plaza
Plaza was charged of murder before RTC. After prosecution
rested its case, Plaza filed a demurrer of evidence alleging
that the prosecution was only able to provide evidences to
prove guilt beyond reasonable doubt for the crime of homicide
and not of murder as charged.

Issues:
1.
2.

Issue: WON Plaza is entitled to bail

Held: Yes. Sec. 4, Rule 114 states that any person under the
custody before the conviction in the RTC for a crime not
punishable by reclusion perpetua, death or life imprisonment
shall be admitted to bail as a matter of right. The prosecution
contended here as well that Sec 5 is applicable in this case
but SC said it is not. Sec. 5 is only applicable when the
accused is already convicted. In this case, Section 4 is
applicable in the accused because the evidence adduced is
only for homicide. Then, Plaza is entitled to bail as a matter of
right.
Suarez: In this case no, the charge was murder. If you look
at the provision in Section 4, the imposable penalty for the
crime charged After the presentation of evidence of the
prosecution, the accused was given the opportunity to file a
demurrer. A demurrer is a kind of motion to dismiss on the
ground of insufficiency of evidence. If the accused feels that
the prosecution failed to prove guilt beyond reasonable doubt,
the accused can file a demurrer of evidence. If this is granted
by the court, it is tantamount to an acquittal. Ma-di-dismiss.
Here, the accused can invoke double jeopardy. However, the
demurrer in this case was denied but the court specifically
stated in the resolution denying the demurrer that the

WON Chiok filed the proper remedy

WON the trial court was correct in cancelling the bail
Held:

1.

2.

NO. Chiok availed of the wrong remedy. The last paragraph of

Sec. 5 of Rule 114 provides that the remedy he should have
availed of was a petition for review. Instead he filed this
certiorari before the CA on a regular proceeding
YES. SC cited Sec. 5 (3) Rule 114, providing that if the
penalty imposed by the trial court is imprisonment exceeding
six (6) years and the instances enumerated in the said
paragraph are present, then it is correct for the trial court to
cancel the bail. In this case, Sec. 5 (d) and (e) were present
and the penalty filed to Chiok was upto 20 years. When he
also failed to appear twice for the promulgation of decision,
these instances indicate that Chiok not only violated the
conditions of his bail but also that he is a flight risk.

of 10 to 12 years. There is no presence of those

circumstances under Sec. 5. But since there was a probability
of flight, bail is no longer discretionary. Bail should be denied.
Therefore, the RTC was correct in cancelling the bail.
Second, if the accused whose bail was cancelled like Chiok
would like to question the ruling of the RTC, what should he
do? According the Sec. 5, last paragraph, 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 In here, there was the word,
motion. It may be a motion for whatever but not for review. It
is always petition for review, theres no such thing as motion
for review. A petition for review is an appeal. So if Chiok
wants to question the RTCs cancellation of his bail, he must
file a motion with the appellate court.
Leviste vs. CA (very important case)
Leviste was charged of murder but only convicted of a lesser
crime of homicide. He was sentenced to imprisonment of 6
years and 1 day to 12 years and 1 day. He appealed his case
to CA. And pending appeal, he applied for admission to bail
but the same was denied. Petitioner now questions as grave
abuse of discretion the denial of his application for bail,
considering that none of the conditions justifying denial of bail
under the third paragraph of Section 5, Rule 114 of the Rules
of Court was present. Petitioners theory is that, where the
penalty imposed by the trial court is more than six years but
not more than 20 years and the circumstances mentioned in
the third paragraph of Section 5 are absent, bail must be
granted to an appellant pending appeal.
Issue: does the discretionary nature of the grant of bail
pending appeal mean that bail should automatically be
granted absent any of the circumstances mentioned in the
third paragraph of Section 5, Rule 114 of the Rules of Court?

Suarez: So is bail here discretionary or should it be denied?

Answer: It should be denied.

Held: No. The third paragraph of Section 5, Rule 114 applies

to two scenarios where the penalty imposed on the appellant
applying for bail is imprisonment exceeding six years. The first
scenario deals with the circumstances enumerated in the said
paragraph (namely, recidivism, quasi-recidivism, etc.). The
second scenario contemplates the existence of at least one of
the said circumstances.

So here no, take note, there was already a conviction. Chiok

was convicted of estafa with 12 years to 20 years penalty.
And then there was evidence that there is a probability that
he would flee. So, apply Sec. 5. Bail is discretionary if after
conviction before RTC of a crime punishable by imprisonment

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

Thus, a finding that none of the said circumstances is present

will not automatically result in the grant of bail. Such finding
will simply authorize the court to use the less stringent sound
discretion approach.
Suarez: This is after conviction by the RTC, 12 to 20 years
penalty. What is the first thing that should be done? There
must be a hearing for the prosecution to show WON those
circumstances under Sec. 5 exist? So if none is proven,
according to Leviste, dapat he should be granted bail. But the
SC said NO. That is the time when the court will exercise its
discretion. If it is not proven that any of those circumstances
exist, that is the time when it becomes discretionary. So the
court has the option whether to grant or to deny but granting
of bail is not a matter of right. And the denial of bail cannot
be imposed on the court. The court can decide either way.
But in the second situation, if it is proven that any of the
circumstances of Sec. 5 is present, then there is no more
choice. There is no more discretion on the part of the court. It
has to deny. Its very simple but still a subject of confusion.
Some lawyers think that bail is a matter of right. But bail is a
matter of right only under Sec. 4. Once there is conviction by
the RTC pending appeal, bail IS NOT A MATTER OF RIGHT. Bail
is only a matter of right if there is conviction by the RTC if the
case came from the MTC. But if it is an RTC case, then no.

Dipatuan vs. Judge Mangotara

Criminal case for murder was filed against Abdul and
Dipatuan. Judge Mangotara found reasonable doubt and
sentenced them for reclusion perpetua. The judge likewise
increased the bail bond of both from 75k to 200k. a complaint
was filed against Judge Mangotara for gross ignorance of the
law and abuse of authority for not cancelling the bail
Issue: WON Judge M committed an error in not cancelling the
bail

30

Held: Yes. It is expressly stated under Sec. 5 Rule 114,

offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. In the
present case, Judge M should have cancelled bail as Abdul
and Dipatuan were already convicted and sentenced of
reclusion perpetua imprisonment which warranted the denial
to admission to bail

Page

deny bail. 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. So, the presence of any one of the circumstances
would justify the revocation or denial of the application of bail.

Suarez: Bail should have been denied here. What does it say
in Sec. 7? After conviction by the RTC pending appeal of an
offense punishable by reclusion perpetua or life imprisonment,
automatic denial. So Judge Mangotara had no business
increasing the bail bond. The accused here had no right to bail
anymore.
People v. Hu
Hu was the General Manager of Extra Excel International
Philippines, Inc., who was charged of qualified theft. The
prosecutor file the information in court and commanded that
bail be set at 40k. but the trial court denied stating that since
the penalty for the offense charged is reclusion perpetua, Hu
is not entitled to be given bail. So Hu contends that DOJ
Circular No. 74 which provides that qualified theft should be
applied. Although it is not binding to the court, it represents
the_____ of the Sec. of Justice and Circular No. 74 was issued
after the Court promulgated its decision in People v.
Hernando.
Issue: WON qualified theft is a bailable offense as gleaned
from DOJ Department Circular No. 74
Held: NO. Both Sec. 7 of Rule 114 and the Constitution
provides that when a person is charged of an offense
punishable by rec. pertpetua, etc. he shall be denied bail WON
the prosecution recommends bail under DOJ Cir. No. 74. But
when he has been brought before the court, he filed a petition
for bail. If the court finds that the evidence of guilt against
him is strong, the court should deny bail. But if not, then he
shall be released on provisional liberty and the amount will be
set in tandem with DOJ Cir. No. 74
Suarez: Yes, it does not mean just because there is this
Circular, the accused is automatically entitled to bail. There
must be this hearing to prove that evidence of guilt is strong.
If it is not strong, then you follow the circular for the amount
of bail bond.

Valerio vs. CA
Information for parricide was filed against the victims wife,
Milagros E. Valerio. Milagros filed an application for bail
claiming that the evidence of guilt against her was not
strong. RTC granted Milagros application for bail. Herein
petitioners, Laarni N. Valerio, sister of the victim, and the
People of the Philippines, elevated the case to the Court of
Appeals ascribing grave abuse of discretion to the RTC judge
for granting Milagros bail.
Issue: WON Milagros is entitled to bail
Held: No. Bail is not a matter of right in cases where the
person is charged with a capital offense or an offense
punishable by reclusion perpetua or life imprisonment. Article
114, Section 7 of the Revised Rules of Criminal Procedure,
states, No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment,
shall be admitted to bail when the evidence of guilt is strong,
regardless of the stage of the criminal action.
In this case, the trial court had disregarded the glaring fact
that the killer himself has confessed to the crime and has
implicated Milagros as the mastermind. When taken in
conjunction with the other evidence on record, these facts
show very strongly that Milagros may have participated as
principal by inducement in the murder of JunValerio. Thus,
bail should be denied.
Suarez: Yes. This is an illustration of that phrase, whether or
not the evidence of guilt is strong. So here she was charged
of parricide with the penalty of rec. perpetua to death. But the
court granted bail upon application ignoring the fact that the
hitman himself admitted that Milagros is the mastermind.
When you conduct a bail hearing, you dont have to prove the
innocence of the accused. You just have to indicate or show
proof, that the evidence of guilt is strong. So that is enough!
Even if the hitman was lying, there was already an indication
that perhaps this woman planned to kill her husband. This is
enough to state the evidence of guilt is strong and bail should
be denied.

Issue: WON the judge is right for granting the bail without
conducting a hearing
Held: No. Sec. 7 Rule 114 applies. In this case, Atty Gacal
upon learning the approval of the bail, filed a Very Urgent
Motion For Reconsideration And/Or To Cancel Bailbond But
this was denied by Judge Infante.
In that light, the failure of Judge Infante to conduct a hearing
prior to the grant of bail in capital offenses was inexcusable
and reflected gross ignorance of the law and the rules as well
as a cavalier disregard of its requirement. He well knew that
the determination of whether or not the evidence of guilt is
strong was a matter of judicial discretion, and that the
discretion lay not in the determination of whether or not a
hearing should be held, but in the appreciation and evaluation
of the weight of the Prosecutions evidence of guilt against the
accused. His fault was made worse by his granting bail
despite the absence of a petition for bail from the accused.
Suarez: (Empasizing the basic) If the crime is punishable by
rec perpetua to death, bail is a matter of right or it should be
denied. There is no discretion as to whether to grant the bail
or deny it. During the hearing, the prosecution must prove
that the evidence of guilt is strong. If it is not proven, then
bail must be granted as a matter of right. If it is proven, then
bail is denied. Bail is not discretionary when the penalty is rec
perpetua to death! Bail is discretionary ONLY under Sec. 5.
Now maybe during the hearing the court exercises a bit of
discretion in deciding WON the evidence of guilt is strong. But
that discretion ends there. Once the court has decided, ah
the evidence of guilt is strong, it has no longer any
discretion. It has to what? Deny bail.
In this case, when the prosecutor recommended bail, the
judge immediately granted it. So the private prosecutor, the
lawyer of the offended party, filed a motion. The purpose of
the motion is to determine WON the evidence of guilt is
strong. But the prosecutor did not appear on the first hearing
date. When he was ordered to file a Comment, another date
was set for the prosecution to prove that the evidence of guilt

31

A certain Ancheta was charged of murder. Office of the

Provincial Prosecutor, acting through Assistant Provincial
Prosecutor Alfredo Barcelona, Jr., accordingly filed in the RTC
an information for murder but with a recommendation for bail
in the amount ofP400,000.00. Without conducting any
hearing, Judge Infante approved the bail. Private prosecutor
Atty. Gacal stated that Judge Infante and the public
prosecutor were both guilty of violating the Anti-Graft and
Corrupt Practices Act for giving undue advantage to Ancheta
by allowing him bail without his filing a petition for bail and
without a hearing being first conducted.

is strong. Again, he did not appear. So the judge denied the

motion of the private prosecutor. What does that show you?
The accused did not even apply for bail because automatically,
it was recommended by the prosecutor. When the issuance of
the bail bond was set for hearing, the prosecutor did not
appear. The judge should have already suspected that
somethings fishy here. So can the judge forego just because
the prosecutor did not appear? No. SC held that the judge has
to force the prosecutor to prove that the evidence of guilt is
strong.

Page

Gacal v. Judge Infante

It says here: Hearing of the application for bail is absolutely

indispensable before a judge can properly determine whether
the prosecutions evidence is weak or strong. It becomes,
therefore, a ministerial duty of a judge to conduct hearing the
moment an application for bail is filed if the accused is
charged with capital offense or an offense punishable by
reclusion perpetua or life imprisonment Verily, respondent
judge erred when he issued an order granting the application
for bail filed by the accused based merely on the order issued
by the Fiscal recommending bail of P400,000.00
Now, the other question that I asked, what if there was no
application of bail by the accused? Is bail hearing would still
be required?
According to the judge here, bail hearing was not necessary
because the accused did not file an application for bail; and
because the public prosecutor had recommended bail.
According to the SC, even where there is no petition for bail, a
hearing should still be held. This hearing is separate and
distinct from the initial hearing to determine the existence of
probable cause, in which the trial judge ascertains whether or
not there is sufficient ground to engender a well-founded
belief that a crime has been committed and that the accused
is probably guilty of the crime. The Prosecution must be given
a chance to show the strength of its evidence; otherwise, a
violation of due process occurs.
The fact that the public prosecutor recommended bail for
Ancheta did not warrant dispensing with the hearing.

So is the SC here saying that all cases where the imposable

penalty is rec perpetua, automatic may hearing? Of course
not! But here, the prosecution kasi recommended. So its
kinda suspicious. Because there were times that the accused
does not want to post bail.
Here the judge should conduct the hearing even if the
accused did not apply for bail as the public prosecutor
recommended bail. Lalo na the private prosecutor filed a
motion to conduct a hearing.
Because under Sec. 8, At the hearing of an application for
bail filed by a person who is in custody So there is only a
hearing when there is application. Otherwise, there will be no
more space in the court. Normally, pag ang penalty rec

perpetua to death, the prosecutor will not recommend bail. It

is the accused. Then there will be a hearing. But in this case,
iba.
Section 8
Lets continue with Sec. 8. We already looked at the first part.
the prosecution has the burden of showing that evidence of
guilt is strong. During the bail hearing, the prosecution will
submit evidence. Now, what if the case goes to trial. Does the
prosecution have to repeatedly present the same evidence
that it presented during the bail hearing? Sec 8 says No. The
evidence presented during the bail hearing shall be considered
automatically reproduced at the trial (so, hindi na kailangan
ulitin), but upon motion of either party, the court may recall
any witness for additional examination unless the latter is
dead, outside the Philippines, or otherwise unable to testify.
The second part of Sec 8 is applicable to trials not to bail
hearing. Hearing is mandatory if there is an application for
bail. Absent such hearing, the order granting bail is void for
having been issued with grave abuse of discretion. Even if the
petition for bail has the prosecutors conformity. Thats what
SC said in Narciso vs. Romana-Cruz.
As already mentioned earlier, what is discretionary on the part
of the court in the hearing, under Sec. 8 is only the
determination of WON the evidence of guilt is strong. But
discretion is only up to there.
In Basco vs. Rapatalo, the following are the rules outlining the
duties of the judge in case an application for bail is filed:
1. In all cases whether bail is a matter of right or discretion,
notify the prosecutor of the hearing of the application for bail
or require him to submit his recommendation (Section 18,
Rule 114 of the Revised Rules of Criminal Procedure);
2. Where bail is a matter of discretion, conduct a hearing of
the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt
of the accused is strong for the purpose of enabling the court
to exercise its sound discretion (Section 7 and 8, id.);
3. Decide whether the guilt of the accused is strong based on
the summary of evidence of the prosecution;

In the present case, the records show that Judge Clapis set
the first bail hearing on 29 March 2010 yet the Petition For
Bail was filed only on 8 April 2010. Furthermore, the 12, 13
and 14 April 2010 bail hearings reveal that the prosecution
was not given the opportunity to be heard in court. Clearly,
Judge Clapis failed to observe the proper procedure in
granting bail.

Page

32

4. If the guilt of the accused is not strong, discharge the

accused upon the approval of the bail bond (Section 19, id.);
otherwise the petition should be denied.
So sometimes, the prosecutor would say ay hindi na judge.
Wag na, evidence of guilt is not strong. Eto nalang
recommendation ko. The judge should not agree to that. He
must force the prosecutor to present evidence. Can the
private prosecutor appear in court to oppose the bail
application even without the authority of the public
prosecutor?

Suarez: Granting bail in cases which has penalty of rec

perpetua to death is very risky because these involve heinous
crimes. Therefore judges should always assure that the
prosecution is given its day in court. But in this case, it was
the defense who was given the opportunity.

In the case of Goodman vs. dela Victoria, the SC said yes.

During the bail hearing the public prosecutor and private
prosecutor may not be on the same side. Because the public
pros may recommend bail. Thats what also the SC said in
People vs. Cano. The private complainant has standing to
question the granting of bail to the accused on certiorari
without the approval of the Solicitor General.

Lets go the minor provisions:

Here there was a pending criminal case for murder against

the suspect who allegedly gunned down Gacads brother.
Gacad alleged that Judge Clapis employed several schemes to
dismiss her case. One pertinent act it the conduct of hearing
of petition for bail. The judge set the hearing where in fact
there was not yet an application for bail and Gacad was not
notified. He also set a series of hearings. And in these
hearings, Gacad was not represented by counsel and her
counsel filed a motion to withdraw and she was only
represented on the last day of heart. But they were not able
to adduce evidence. But immediately after the defense
completed presenting its evidence in support of its bail
application, the petition for bail was submitted for resolution.
The prosecution was not given an opportunity to present
evidence to prove that the guilt of the accused is strong.
Judge granted the bail.
Issue: WON the hearings were conducted in accordance with
the Rules on Criminal Procedure
Held: NO. It was violative of Sec. 8, Rule 114. Section 8
presupposes 2 things. (1) an application for bail was filed, and
(2) the judge notified the prosecutor and conducted a bail
hearing for the prosecution to adduce evidence to prove the
guilt of the accused.

Now, property bond [under Sec. 11]. It may be the property

of the accused or he could borrow from a relative or a friend.
So what is the procedure.
For example: So we have here a title. The accused shall cause
the annotation of the lien of the certificate of title on file. If
the land is registered, go to the ROD and have it stamped the
annotation that this particular title that this particular
property is being used as a property bond.
The tax declaration of the property should also be annotated.
Go to the assessors office and have the annotation that it is
subject to prop bond.
After that, the accused shall submit to the court his
compliance, etc. read Sec. 11

Section 9
Sec. 9. How much should the bail be? Normally, this is
recommended by the prosecutor. They have their own
guidelines, circulars issued by the DOJ. But Sec 9 also gives
some guidelines.

Remember the cases that we took up? Just get the approval
of the government counsel whether the pub prosecutor or the
SG.

Gacad vs. Judge Clapis

Section 11

Section 9. 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;

So if an accused is an indigent lititgant, he cannot give a bail
of 1M or 2M. But if its Jinggoy Estrada, probably, kaya nya
(g) Probability of the accused appearing at the trial;

Section 12
Sec. 12 is related to Sec. 11. Who can be a bonds man?
Under Sec. 12 (a), it must be real property, hindi kotse kundi
house and lot. May be condominium. In Sec. 12 (b), lets say
the amount is approved, the bond is 2M, but the property is
only worth 1M, kulang yan. The accused has to get another
title from another friend for the 1M. Now he has two
bondsmen.
In the last paragraph, you cannot be a bondsman if you are
undertaking 1M pero ang worth mo is 500k. It has to be more
than the amount.

Section 13

For example Lucio Tan tapos the bail bond is only 5k. Wala
syang pakialam ma-cancel ang bail bond thats just 5k. So it
should also be taken in to consideration.

What else does property bondsman has to do? Answer under

Sec. 13. The judge can call this people.

Section 10

Section 14

Now on different bail bonds. We have the Corporate Surety

[under Sec. 10]. If you want to take up a corporate surety,
you must get the surety bond from a domestic or foreign
corporation (the rest andyan na sa Sec 10).

Sec. 14. Where do you deposit your cash bond? In the rules,
sa nearest BIR, etc. but the procedure in the court is that you
deposit it to them, then they will deposit it to the bank.

A surety bond must be issued by a corporation. Kaya nga

corporate surety. Hindi pwedeng tao, a natural person. a
surety bond must be jointly subscribed. What is subscribed?
Signed. Signed by the accused and an officer of that
corporation.

[Note: Ang questions ni Maam diri na part, naa tanan sa iya

book, page 212 on Cash Bond as Bail.]
On Lachica vs. Tormis, the judge cannot personally accept the
cash bond of the accused. Where should you deposit? It is
provided under Sec. 14.

(d)

So we have 4 kinds of bail bond. Surety, cash, property and

this last kind of bail bond, the recognizance. There is nothing
to put up, nothing to put to court as a security. It is just a
commitment of another person or the accused himself. He will
vow for himself of that of a responsible person.

(e)

Definition of recognizance on page 214, Suarez book.

Recognizance is not a fourth option. Kunyari tatawad ang
defense counsel, Your honor, pwede 500k na lang instead na
1M. Sasabihin ng judge, ok. Payag si Fiscal. Pero sasabihin ng
accused, pwede on recognizance? Hindi.
It is not a fourth option. There are only 3 options.
Recognizance will only be granted if allowed by law or the
rules.
What are the instances where recognizance is allowed?
Enumerated in Espiritu vs Jovellanos:
Under Rule 114, 15 of the Rules of Court, the release on
recognizance of any person under detention may be ordered
only by a court and only in the following cases:
(a)

(b)

(c)

when the offense charged is for violation of an ordinance, a

light felony, or a criminal offense, the imposable penalty for
which does not exceed 6 months imprisonment and/or P2,000
fine, under the circumstances provided in R.A. No. 6036;
so kung murder, sa tingin, mo you can ask for recognizance,
or homicide ang case mo? Light felony lang. O arresto mayor
ang penalty
where a person has been in custody for a period equal to or
more than the minimum of the imposable principal penalty,
without application of the Indeterminate Sentence Law or any
modifying circumstance, in which case the court, in its
discretion, may allow his release on his own recognizance;
lets say the penalty is rec temporal. What is the minimum?
12 years. Lets say the accused has already been in custody
for 14 years hindi pa tapos ang kaso nya, the court, in its
discretion, may allow his release on his own recognizance.
Because the person has been in custody for a period equal to
or more than the minimum of the imposable principal
penalty. Pwede na syang magsabi, Your honor please release
me on my own recognizance. I have already served more
than the minimum
where the accused has applied for probation, pending
resolution of the case but no bail was filed or the accused is
incapable of filing one; and
Under your criminal law, there were instances where the
accused can apply for probation while the case is pending. so
if you apply for probation, and you are detained_____. Kasi
there were only to ways of releasing a person. First on
release by virtue of bail. But if you apply for probation, you

33

Section 15

pay applying for bail and be asked for release on your own on
recognizance.
in case of a youthful offender held for physical and mental
examination, trial, or appeal, if he is unable to furnish bail and
under the circumstances envisaged in P.D. No. 603, as
amended (Art. 191)
Under RA 7610 Sec. 25 (d): Section 25. Rights of Children
Arrested for Reasons Related to Armed Conflict. Any
child who has been arrested for reasons related to armed
conflict, either as combatant, courier, guide or spy is entitled
to the following rights;
(d) Release of the child on recognizance within twenty-four
(24) hours to the custody of the Department of Social Welfare
and Development or any responsible member of the
community as determined by the court.
Same with PD 603. Who will recommend? DSWD.

Page

August 17, 2015

Tabao v. Judge Barataman

Tabao filed a criminal case for abandonment of minor against
her husband, which has a penalty for imprisonment of arresto
mayor (less than 6 months). Judge Barataman granted the
bail by recognizance filed by the father of the accused. When
the judge granted the motion, accused was still at large.
Prosecution filed a motion to cancel the bail on the ground
that the husband is a CPA and he can afford to post a cash
bond. Judge denied contending that the rule on recognizance
does not discriminate whether the accused is rich or poor
Issue: WON bail or recognizance is available on husband
Tabao
Held: No. under Sec. 2 of RA 6036 that the person charged
"shall be required to sign in the presence of two witnesses of
good standing in the community a sworn statement binding
himself, pending final decision of his case, to report to the
Clerk of Court Recognizance was also filed by the father and
not the accused himself. Respondent judge does not deny that
the accused was at large when the motion for bail on
recognizance was filed and subsequently granted. Bail is the
security given for the release of a person in custody of the
law Section 15, Rule 114 of the Revised Rules of Criminal
Procedure provides that the court may release a person in
custody on his own recognizance or that of a responsible
person. It is a basic principle that bail is intended to obtain
provisional liberty and cannot be granted before custody of an
accused has been acquired by the judicial authorities by his
arrest or voluntary surrender. It is self-evident that a court
cannot grant provisional liberty to one who is actually in the
enjoyment of his liberty for it would be incongruous to give
freedom to one who is free. Thus, we have held that it is
premature to file a motion for bail for someone whose liberty
has yet to be curtailed.
Suarez: Bail can only be granted when the person is in
custody of the law. The father was the one who filed bail. He
was never taken custody by the court. Second, even though

abandonment of minor is covered by RA 6036 considering that

the penalty is not higher than 6 months, Section 1 does not
stop there. Section 1 of R.A. No. 6036 provides that "any
provision of law to the contrary notwithstanding, bail shall not
be required of a person charged with violation of a criminal
offense the prescribed penalty for which is not higher than six
months imprisonment.. where said person has established
to the satisfaction of the court or any other appropriate
authority hearing his case that he is unable to post the
required cash or bail bond In other words, even if youre
accused of a crime where the penalty is less than 6 months,
you have to prove to the court in an appropriate hearing on
the matter that you are UNABLE to post bail. Wala kang pera
ba, wala kang property ba. So yun lang. It is not automatic. It
only applies to light offenses. Not those less grave, grave
offenses. Section 2 of RA 6036 also provides that the accused
has to sign and you have to swear that you are going to
appear before the court when required and that you cannot
afford to post bail. So, the last part of this provision says,
where a person is charged of an offense falling under RA 6036
and the requirements of the law have been complied with, the
judge may order the release of the person on recognizance
instead of requiring a hearing.

Atty. Cabrera v. Judge Zerna

Judge Zerna ordered the immediate release of 2 accused on
recognizance without the required hearing for the release an
accused on bail and failing to follow the procedure laid down
under Sec. 191 of the Child and Youth Welfare Code. He
merely relied on the birth cert. submitted by the accused
Issue: WON the release on recognizance is valid
Held: NO. like any application for bail, a motion to be
released on recognizance has the objective of sparing an
accused from imprisonment until his conviction and yet secure
his appearance at the trial of a pending criminal case.
Jurisprudence dictates that a hearing is required in granting
bail whether it is a matter of right or discretion and the notice
of hearing is required to be given to the prosecutor or fiscal,
or at least he must be asked on his recommendation. To do
away with the requisite hearing is to dispense with this timetested safeguard against arbitrariness.[9] Perforce, respondent
judge should have given the prosecution the opportunity to be
heard or at least be allowed to comment or submit its
opposition on the application for bail by recognizance.
It was also noted that when accused applied for bail by
recognizance, both of them made reference, among others, to
the applicability of the Child and Youth Welfare Code (P.D.
603), Section 191, which provides:
Article 191. x x x The court may, in its discretion upon
recommendation of the Department of Social Welfare and

Ensconced in the aforementioned provision of law is the

indispensable requirement that before a trial court may
release a youthful offender on recognizance to the custody of
his parents, the recommendation from the DSWD or other
agency or agencies authorized by the Court must be
obtained. But the judge failed to fulfil this requirement.
Suarez: Now it is very clear in Sec. 15, you have to base it
on the law. What law allows recognizance? Now under PD 603
Sec. 191, there is a procedure to grant bail on recognizance
for a youthful offender. You look at the requirements, same as
RA 6036. It is not automatic. There are requirements. So it
really depends on the law that allows recognizance. And you
must follow the requirements before anyone can be released
on recognizance.

34

penalty is destierro which is not imprisonment. Then he

should be released after 30 days of preventive imprisonment.
So thats the instance where bail is not required

Page

Development or other agency or agencies authorized by the

Court, release a youthful offender on recognizance, to the
custody of his parents or other suitable person who shall be
responsible for his appearance whenever required. x x x.

And we already discussed the minimum diba. Where he

served a period equal to or more than the minimum, he shall
be released on a reduced bail or on his own recognizance, at
the discretion of the court
And under Summary Rule, we will later learn that cases under
summary rule no arrest, no need for bail
Sec. 9 of Rule 112 also provides that if the judge is satisfied
that there is no necessity for placing the accused under
custody, he may issue summons instead of a warrant of
arrest.
So these are the instances were bail is not required. Meaning
you dont have to put up money, property or surety

Section 17
Section 16
Suarez: So there are times when a person is accused, an
information is filed against him, then he is arrested, he has to
post bail. But if a law, or a particular Rule says no need for
bail, the accused can be released without bail, then so be it.
Like RA 6036, putting up a bail bond is not required. If you
comply with the requirements, you can be released on
recognizance. No need to put up bail. And under Rule 114 Sec
16this accused we talked about earlier charged with
homicide. Penalty is rec temporal, the minimum is 12 years
and maximum is 20 years. What if he has already been in jail
for 22 years, hindi pa tapos kanyang trial. Na-serve na nya
yung kanyang maximum penalty. What does Sec. 16 say, a
period equal to or more than the possible maximum
imprisonment prescribe for the offense charged, he shall be
released immediately. He has already served his sentence.
Heto without prejudice to the continuation of the trial or the
proceedings on appeal. The case can go on pero sya released
na kasi nga served na ang sentence.
Here, [in this part] If the maximum penalty to which the
accused may be sentenced is destierro Oh, destierro lang.
kahit na sabihin mo 1 day lang sya andun sa kulungan, eh the

Now lets go to the procedure, where do you apply for bail?

Normally, a person applies for bail is already in the custody of
the court. He is already detained or he surrenders in court.
The case is already pending, and information has already
been filed before the court. According to Sec. 17, Bail in the
amount fixed may be filed with the court where the case is
pending. If there is already a pending case, dun ka mag-apply
ng bail.
What if the judge where the case is pending is absent or
unavailable? What do you do, if you dont apply for bail you
can be arrested. You can go to any RTC or MTC judge. Eh
kung sa Davao, you go to the neighboring sala. Kunyari nakaraffle yung case mo sa Branch 16 tapos wala si Judge.
Kapitbahay nyan Branch 10, you go there.
Kunyari lahat ng RTC judge wala, nag-attend ng seminar, you
can go to the MTC judge of Davao. Next, if the accused is
arrested in a province, city, or municipality other than where
the case is pending Kunyari yung case mo pending sa
Branch 16 sa Davao City. The case is homicide. Pero yung
accused was arrested in Mati. According to Sec 17, bail may
also be filed with any regional trial court of said place He can
file bail with the Judge of Mati in its RTC. He does not have to
come here to Davao to apply for bail. What if theres no RTC

judge available in Mati? Then he can go to the MTC in Mati.

Unlike if the case is here in Davao and you are here, you can
go to any Judge, RTC or MTC. But if he was arrested
somewhere else, then he must go first to the RTC then to the
MTC if the former is not available. THAT IS IF BAIL IS A
MATTER OF RIGHT.
Now, what if bail is a matter of discretion? Pwede ba sya
magfile doon sa Mati if the case is pending here in Davao? No,
look at Sec. 17 (b).
When bail is a matter of right, the only thing that they talk
about during the hearing a mini-hearing, where the judge will
ask, what is your recommended bail? 100k. tatawad pa, 50k
na lang. Judge asks, any objections fiscal? None daw. Tapos.
Granted. If bail is a matter of right.
But if bail is a matter of discretion, meron pa yang
presentation of the circumstances under Rule 114 Sec. 5.
Andyan ba, present o absent? And all those things. May
hearing yan and you have to look at the records of the case.
And sa recognizance din pareha. You cannot file that to
another court even if you filed on time. You have to apply
here, where the case is pending as presentation of evidence is
required. In here, something has to be proven, hindi lang
yung how much, patawad, tapos. That only applies where bail
is a matter of right where the only issue is the amount of the
bail bond.
Last part, Sec. 17 (c), this is about valid warrantless arrest.
Not yet charged di ba. Inquest. He can apply for bail where he
was detained.

Section 18
So, Sec. 18 is a continuation of Sec. 8. What is Sec 8?
Hearing. You have to undergo hearing to determine this and
that. WON the evidence of guilt is strong. So, the court must
give reasonable notice of the hearing to the prosecutor, to
prepare the evidence.
Now, what if bail is a matter of right? As already mentioned,
there is a little hearing. What if theres no prosecutor in the
court? Hindi pwede yan, kailangan may prosecutor.
Sometimes yung Judge when someone applies for bail tapos
absent yung prosecutor nya, the court will just borrow a
prosecutor from another sala.

Ok, lets go to the situation first in Sec 17 (a). If the accused

applies for bail in the court where the case is pending, its
very simple. Judge will approve the bail, and the court will
release him. The accused can only be discharged upon
approval of the bail by the court. Hindi pwede na dito na court
ka mag-apply ng bail tapos yung kabilang sala ang magapprove. Apply here, the judge will approve. Tapos, the
accused will put up the bail bond then get the receipt and the
court will issue a release order.
What if the accused was arrested in Mati then theres a
pending case here? He can apply there diba. Lets say, the
judge of Mati approved the bail, he shall forward it, together
with the order of release and other supporting papers, to the
court where the case is pending. Can he approve? Yes, a
matter of right man ito. So the prosecutor in Mati puts the
bail bond at 500k, tatawad yung accused, 250k, approved!
Bayad sya dun. Doon sa Mati. Because he cannot be released
without paying.
The judge must also forward to the court where the case is
pending, the release and other supporting papers. Pagdating
sa Davao Judge, huh?! 250k lang ang bail? Ang yamanyaman nyan. Taasan dapat ang bail. Otherwise, hindi yan aappear. Change it to 500k. Pwede yan. Sec 19: the court,
may for a good reason require a different one to be filed.
Ipapatawag yung accused ipapataas yung bond to 250k. The
accused has to pay the additional as the Davao court has the
authority. Kasi the papers are in the court where the case is
pending. The circumstances of the case are known by this
court. Yung sa Mati, warrant of arrest lang ang nandun.

Lim vs. Dumlao

Complainant Purita Lim filed two criminal cases for carnapping
and theft with the Regional Trial Court of Santiago City,
Isabela, Branch 35, against a certain Herman A. Medina. On
May 8, 2003, Medina was apprehended and detained at the
Bureau of Jail Management and Penology, Santiago City Jail,
by virtue of a Warrant of Arrest issued by then Presiding
Judge Fe Albano Madrid of Branch 35.

35
Page

Section 19

On May 9, 2003, respondent judge issued three separate

orders for the release of Medina on the ground that he had
posted bail with his court. Complainant alleged that
respondent judge frequently approves bail bonds for cases
filed in other courts and outside the territorial jurisdiction of
his court. He also issues search warrants for implementation
outside of his courts jurisdiction. In view of these instances,
complainant requested for an investigation into the activities
of respondent judge. Office of the Court Administrator found
that respondent judge has been charged in six (6)
administrative cases, including the instant case
Issue: WON the grant of bail by Judge Dumlao was
valid

the application and order the accused to go to the court where

the case is pending. Because this person was not arrested in
San Mateo. And even if he was arrested there, he cannot go
directly to the MTC, RTC muna sya diba. And there is even no
showing that the judge in Santiago was not available. Bakit
sya napadpad doon sa San Mateo? Kasi kaibigan nya yung
judge doon. Hindi pwede, as we have our rules.

Virginia Savella v. Judge Ines

Held: No. SC cited Section 17, Rule 114 of the Rules of

Criminal Procedure. It is not disputed that the criminal cases
filed by complainant against Herman Medina were pending
before the Regional Trial Court of Santiago City, Isabela,
Branch 35. In fact, the warrant of arrest was issued by Judge
Fe Albano Madrid, presiding judge of the said court. The order
of release therefore, on account of the posting of the bail,
should have been issued by that court, or in the absence or
unavailability of Judge Madrid, by another branch of an RTC in
Santiago City and NOT through Judge Cesar M. Dumlao of the
Municipal Trial Court of San Mateo. In this case, however,
there is no proof that Judge Madrid was absent or unavailable
at the time of the posting of the bail bond. In fact,
complainant Lim avers that on the day respondent judge
ordered the release of Medina, Judge Madrid and all the
judges of the RTC of Santiago City, Isabela were at their
respective posts.

The complaint was filed in MTCC Vigan then the warrant of

arrest was issued. Upon posting of a P12,000.00 bail bond, an
Order of provisional release in favour of the accused was
issued by Judge Ines who was the Presiding Judge of the
Municipal Trial Court of Sinait. Respondent judge Ines narrates
that on Holy Tuesday, 13 April 2006, the accused, together
with her daughter, dropped by her house, voluntarily
surrendered to her, and posted bail. Respondent called her
clerk to prepare the corresponding receipt for the cash
bond. However, on account of the Holy Week celebration and
the heavy workload in her court, she forgot to transmit the
bail bond papers to MTCC-Vigan until she was reminded by
her Clerk of when the latter was ordered by Judge of MTCCVigan to immediately forward the bail bond papers of the
accused.

It is elementary that a municipal trial court judge has no

authority to grant bail to an accused arrested outside of his
territorial jurisdiction. The requirements of Section 17(a), Rule
114 as quoted above must be complied with before a judge
may grant bail.

Held: Judge Ines violated Sec 17 Rule 114 because there was
no showing of the unavailability of Judge Ante at that
time. Following the said rule, respondent judge clearly erred
in entertaining the bail application despite knowledge of
the pendency of the falsification case before the MTCC
of Vigan.

Espaol and Suluen v. Mupas: a judge who approves

applications for bail of accused whose cases were not only
pending in other courts but who were, likewise, arrested and
detained outside his territorial jurisdiction is guilty of gross
ignorance of the law

Suarez: The case was filed in RTC Santiago. The accused filed
bail in MTC San Mateo which is another city or municipality of
the same province. The judge of MTC should right away deny

Issue: WON the order of provisional release was valid.

Assuming arguendo that respondent judge rightfully granted

bail to accused, her failure to transmit the order of release
and other supporting papers to the court where the case is
pending constitutes another violation of the rules, particularly
Section 19 of Rule 114. Respondent judge should have
forwarded the records pertaining to the bail bond immediately
after she received the same.
Suarez: Under Sec. 17, accused should go to any of the
Judge in Vigan. Why is it that you cannot municipality hop?
Because of the second portion, the application may only be
filed in the court where the case is pending, whether on
preliminary investigation, trial, or on appeal. You can only go

Metro Manila. Upon investigation, it was found that Judge

Tamang had approved the bail bonds without any showing of
the unavailability of all the RTC Judges in Pasig, considering
that the accused persons posting the bail bonds were charged
in criminal cases pending before the RTC in Pasig and were
detained in the Pasig City Jail.
The list of approved bail bonds by Judge Tamang show 34
involved accused detained in Pasig City, seven in Taguig
City, six in San Juan, and one in Pateros. The remaining three
cases involved accused who voluntarily surrendered to Judge
Tamang in the San Juan MeTC. However, all of the criminal
cases were pending in the Pasig RTC.

Police officers Ronald C. Perocho and Santiago B. Lamanilao,

Jr., acting as escorts of Leonardo Luzon Melgazo, the accused,
went to the City Prosecutors Office, Surigao City, to attend the
inquest proceedings. Later, at around 8 oclock in the evening,
Pantilo (the brother of the homicide victim) was informed by
Perocho that Melgazo had been released from detention.
Melgazo was temporarily released upon the order of Judge
Canoy after he posted bail in the amount of 30k.

Judge Simbulan v. Judge Bartolome

Judge Tamang contends that under Section 17(a), Rule

114, the accused who were detained and who voluntarily
surrendered in San Juan could file their applications for bail in
San Juan; that the accused detained in Pateros could do the
same; and that the bail applications of those detained in
Taguig City were legally approved, because she was then the
Pairing Judge of the MeTC in Taguig City (Branch 74)

In his defense, Judge Canoy invokes the constitutional right of

the accused to bail and Section 17(c), Rule 114 of the Revised
Rules of Criminal Procedure, which does not require that a
person be charged in court before he or she may apply for
bail. To his mind, there was already a constructive bail given
that only the papers were needed to formalize it.

Criminal Case was originally raffled to the RTC, Branch

41, San Fernando, Pampanga, where Judge Divina Luz P.
Aquino-Simbulan presides. The accused Mercado voluntarily
surrendered before the MTC of Sta. Maria, Bulacan and posted
her bail bond, which was duly approved by respondent Judge
Bartolome and ordered the release of the accused. This
prompted Judge Simbulan to issue an Order directing the
Clerk of Court of the MTC, to transmit to the RTC the bond
which the former court approved.
Issue: WON the approval of the bond was made properly
Held: No. it was violative of Sec. 17 Rule 114. In the instant
case, the accused Rosalina Mercado was not arrested. That
being the case, she should have filed her bail bond with the
court where her case was pending, i.e., the Regional Trial
Court, Branch 41, San Fernando City, Pampanga. In the
absence of the judge thereof, it could be done at another
branch of the same court within the province of Pampanga or
City of San Fernando. Instead, accused Mercado filed her
bond in the Municipal Trial Court of Sta. Maria, Bulacan, where
respondent Judge presides, who approved the same and
ordered her release from custody. Hence, it was improper for
Judge Bartolome to approve said bailbond
Suarez: Sec 17 (a) only applies when you are arrested in the
court other than the court where the case is pending. Meaning
wala kang choice ba, na-aresto ka kasi doon eh. Pero if there
is already a pending case before a particular court, hindi ka
pwedeng magbentot-bentot dito ako mag-surrender, I will
surrender over there kasi mabait yung judge. That would be
prone to abuse. Where should the accused surrender? Doon
mismo where the case was filed, in San Fernando, Pampanga.
Why would he end up in Sta. Maria, Bulacan. And the Judge of
the latter did not forward the papers to the court where the
case is pending.

Re: Anonymous Letter

An anonymous Concerned Filipino Citizen sent to then Chief
Justice Hilario G. Davide, Jr. requesting the investigation of
Judge Marilou D. Runes-Tamang, Presiding Judge of MeTC in
Pateros and Acting Presiding Judge of the MeTC in San Juan,

Page

36

and file to another municipality or city if you are arrested

there. But if the case is pending in that particular municipality,
dun ka maghanap ng judge. Unless, thats the only court in
that municipality [tapos wala yung judge]. Then you go to
another municipality within the province. But if there is no
showing that there is no other MTC or RTC in that particular
municipality, you cannot hop. The second part of Sec. 17, you
can only file bond to another municipality if you are arrested
there.

Issue: WON the approved bail bonds are valid

Held: As a judge then on detail in San Juan, Judge Tamang
was correct in approving the applications for bail of the
accused who had voluntarily surrendered and been detained
in San Juan, Pateros, and Taguig City, because Section 7(a),
Rule 114, granted her the authority to approve applications
for bail of accused detained within her territorial jurisdiction,
in the event of the unavailability of any RTC Judge in the
area. It is worth noting that at the time of the subject bail
applications, there was still no RTC Judge stationed in San
Juan and Pateros.
But to those accused detained in Pasig, the accused should
have applied for bail bond there as their case was pending
there and that they were also detained in the same area.
Suarez: To simplify, in this case maraming accused, where all
their cases were pending in Pasig. Some were detained in
Pateros, in Taguig, in San Juan and in Pasig. Itong si Judge
Tamang, approved all of their bail bonds. With respect to
Pateros, Taguig and San Juan, she had the authority to
approve the bail bond. But to Pasig, wala (see explanation
above)
August 18, 2015
Pantilo v. Judge Canoy

Pantilo learned that no Information had yet been filed in Court

that would serve as the basis for the approval of the bail and
that no written Order of Release had been issued but only a
verbal order directing the police officers to release Melgazo.

Issue: WON the provisional release of Melgazo is valid

Held: NO. Melgazo here has the right to bail as the charge
against him, Reckless Imprudence Resulting in Homicide, is a
non-capital offense. However, the problem lies on
the manner of Melgazos release from detention. In the case
at bar, Melgazo did not file any application or petition for the
grant of bail with the Surigao City RTC, Branch 29.Despite the
absence of any written application, respondent judge verbally
granted bail to Melgazo. This is a clear deviation from the
procedure laid down in Sec. 17 of Rule 114.
As regards the insistence of Judge Canoy that such may be
considered as constructive bail, there is no such species of
bail under the Rules.
Suarez: What should the Judge have done? Lets say he
applied for bail.
Answer: If Melgazo applied for bail, even if it is his
constitutuional right to bail, a little hearing should be
conducted to determine the amount of bail
Suarez: What should judge require from the accused after
granting bail?
Answer: In addition to a written application for bail, Rule 114
of the Rules prescribes other requirements for the release of
the accused: SEC. 14. Deposit of cash as bail and SEC.
2. Conditions of the bail; requirements
In the case at bar, Melgazo or any person acting in his behalf
did not deposit the amount of bail recommended by
Prosecutor with the nearest collector of internal revenue or
provincial, city or municipal treasurer. In clear departure from
Sec. 14 of Rule 114, Judge Canoy instead verbally ordered
Clerk of Court to accept the cash deposit as bail, to earmark

even in cases where there is no petition for bail, a hearing

should still be held.

Conquilla v. Judge Bernardo

Worse, respondent judge did not require Melgazo to sign a

written undertaking containing the conditions of the bail under
Sec. 2, Rule 114 to be complied with by Melgazo. Immediately
upon receipt of the cash deposit of PhP 30,000 from Melgazo,
Judge Canoy ordered the police escorts to release Melgazo
without any written order of release.

In this case, the judge knowingly disregarded the rules.

Complainant Conquilla alleged that a criminal complaint for

direct assault was filed against her before the MTC.
Respondent judge held the complainant for trial for the crime
of direct assault. Respondent judge then issued a warrant of
arrest with the bail fixed at P12,000. Upon motion of
complainant, respondent judge issued an order reducing the
bail for complainants provisional liberty to P6,000. Conquilla
posted cash bail of P6,000 for her provisional liberty.

In sum, there was no written application for bail, no certificate

of deposit from the BIR collector or provincial, city or
municipal treasurer, no written undertaking signed by
Melgazo, and no written release order.
Suarez: Obviously the accused here is a friend of the judge
because the accused never applied that he would be released
on bail and there was no cert. of deposit, no written
undertaking containing the conditions of the bail. Hindi yan
pwede, ok goodbye you can go home, after the accused paid
the bail. No. there are conditions that he accused has to know
before he is released. And that is the time he is informed of
the conditions. So no release order din. Ang dami, the judge
did not follow several provisions in Rule 114.

Torrevillas v. Judge Navidad

Provincial Prosecutor Manuel Torrevillas, Jr. brought to the
attention of then Chief Justice Davide the inappropriate
actuations of Judge Roberto A. Navidad alleging Judge
Navidad released the accused under the custody several
criminal cases despite the fact that they were all facing
charges for murder and homicide. He granted bail to the
several accused without conducting hearing.
Issue: WON Judge Navidad violated provisions in Rules of
Court
Held: Yes. Jurisprudence is replete with decisions on the
procedural necessity of a hearing, whether summary or
otherwise, relative to the grant of bail, especially in cases
involving offenses punishable by death, reclusion perpetua, or
life imprisonment, whether bail is a matter of discretion.
Under the present Rules, a hearing is mandatory in granting
bail whether it is a matter of right or discretion.
It must be stressed that the grant or the denial of bail, in
cases where bail is a matter of discretion, hinges on the issue
of whether or not the evidence of guilt of the accused is
strong, and the determination of whether or not the evidence
is strong is a matter of judicial discretion which remains with
the judge. In order for the latter to properly exercise his
discretion, he must first conduct a hearing to determine
whether the evidence, he must first conduct a hearing to
determine whether the evidence of guilt is strong. In fact,

Page

37

an official receipt for the cash deposit, and to date it the

following day.

Suarez: But he claims there was a hearing. Answer: Yes. But

whether bail is a matter of right or discretion, the prosecutor
should be given reasonable notice of hearing, or at least his
recommendation on the matter must be sought. This task was
ignored by the judge.
Suarez: the statements of the judge here are self-serving.
The judges must follow Sec. 18. Inform the prosecutor. But
there was no proof on that. It should also be a written order,
the notice of hearing. The allegation of the hearing must not
have been true because everything that happens in court is
recorded by the stenographer. Sabi ni judge, eh nakalimutan
ng stenographer. Imposible. Nothing can go on there without
the stenographer writing everything down. The record speaks
for itself and the transcript of the stenographic notes is wholly
bereft of any reference to the oral petition for bail.
Can you go for oral petition for bail? Yes! You go to court with
your lawyer, do it orally. But in the hearing for bail, whatever
you say is written down by the stenographer. And since this is
a rec perpetua case, the judge must issue the following order:
inform prosecutor that there would be hearing and to compel
to present evidence. That particular oral petition during a
hearing, is not the hearing that is required. There must be a
separated hearing because the prosecutor must be notified
first and should be given opportunity and time to gather his
evidence.
Section 20
The amount of bail is normally recommended by the
prosecutor. The judge will ask what is the prosecutors
recommendation. The accused, will normally ask for discount
or reduction. And if it is granted by the judge, is that it? Is it
fixed because it was already approved by the judge? Under
Sec 20, the amount when fixed can still be adjusted
depending on good cause
What if the accused is known to ______? The court can
increase the amount of bail. When increased, the accused
may be committed to custody if he does not give bail in the
increased amount within a reasonable period. Preso ka.
There are times when the court does not think it necessary to
impose bail like in light offenses. But at any subsequent stage
of the proceedings and whenever a strong showing of guilt,
the court might change its mind and impose bail. If the
accused fails to pay the bail bond, he may be arrested and
committed to custody

She accuses respondent judge for usurping the power of the

prosecutor, who was not even given the chance to comment
on complainants Motion to Reduce Bail. Respondent judge
alleges he did not usurp the power of the prosecutor when he
reduced the bail considering that under Section 20 of Rule
114, the court may increase or decrease the bail upon good
cause.
Issue: WON the reduction of bail is void
Held: The reduction of the amount of bail is void for want of
jurisdiction. While Rule 114 of the Rules of Court allows a
judge to grant bail in bailable offenses and to increase or
decrease bail, it assumes that the judge has jurisdiction over
the case. In this case, respondent judge conducted the
preliminary investigation without authority and issued the
warrant of arrest. Thus, these acts are void for want of
jurisdiction. The reduction of bail is also void because in the
first place, respondent judge had no jurisdiction over the case
itself.

Suarez: The judge did not acquire jurisdiction over the what?
We have jurisdiction over the person, the subject matter
Answer: The person of the accused. How do you acquire
jurisdiction? Either when the accused voluntarily surrendered
or when he was lawfully arrested.
Suarez: This is another case that illustrates the chaos created
by the fact that judges are allowed to conduct PI before.
Imagine ha, him, the judge will conduct the PI. And the he
will be the one to be the presiding judge over the same case.
Definitely, he would issue the arrest warrant and he would
grant bail. Diba parang hes almighty.
In this case, the judge conducted PI when they were no
longer allowed to do so. The PI is therefore void. And the fact
that the case was already in his sala, was also void because PI
is required in this particular case. Therefore, every act that he
did, the granting of bail, the issuance of arrest, all those acts
were in excess of his jurisdiction. He had absolutely no

appearance by the accused is cause for the judge to

summarily declare the bond as forfeited. Second, the
bondsmen, after the summary forfeiture of the bond, are
given 30 days within which to produce the principal and to
show cause why a judgment should not be rendered against
them for the amount of the bond. It is only after this 30-day
period, during which the bondsmen are afforded the
opportunity to be heard by the trial court, that the trial court
may render a judgment on the bond against the bondsmen.

instituted de oficio, the complaint should be filed by the

victim, parent, etc.

38

authority to do so. Thats why even though Rule 114 Sec. 20

allows a judge to reduce of increase amount of bail but has no
authority in the first place, he has no authority to
increase/decrease bail.

Page

Totentino vs. Judge Paqueo

This term of want of jurisdiction is a general term in the

sense that he acted in excess of jurisdiction. It is not WON
there was jurisdiction over the case BUT he acted in excess of
his jurisdiction.

An information was filed against Tecno(?) for violation of Ra

8282. The information stated that it was with the prior
approval of the regional State prosecutor. Tecno filed a motion
to quash on the ground that Tolentino, not being the
provincial or city prosecutor, has no authority to file the
information as provided in Rule 117, Section 3(d) of the Rules
of Court.

An order of forfeiture of the bail bond is conditional and

interlocutory, there being something more to be done such as
the production of the accused within 30 days. This process is
also called confiscation of bond. In People v. Dizon, we held
that an order of forfeiture is interlocutory and merely requires
appellant "to show cause why judgment should not be
rendered against it for the amount of the bond." Such order is
different from a judgment on the bond which is issued if the
accused was not produced within the 30-day period. The
judgment on the bond is the one that ultimately determines
the liability of the surety, and when it becomes final,
execution may issue at once. However, in this case, no such
judgment was ever issued and neither has an amount been
fixed for which the bondsmen may be held liable. The law was
not strictly observed and this violated respondents right to
procedural due process

Section 21
There is a condition for being released on bail and that is to
appear. What if the accused is required to appear and he did
not? Well, if he is his own bondsman, thats a problem but if
he has a bondsman like a surety bondsman, or property
bondsmen yung friend na hiniraman nya ng title. That friend
na akala nya hanggang pagpapahiram lang ng property sya,
he take responsibility for the appearance of the accused. The
bondsman has to produce the accused.
What is the effect of failure to appear? Bail is forfeited. Just
read Sec. 21
Reliance Surety vs. Amante, check p. 222, Suarez book.
Andre vs. Beltran, p. 223

Tolentino: he was authorized by virtue of an order issued by

the Regional State prosecutor.
RTC granted the motion to quash.
Won it was proper for the RTC to quash the information. Yes.
It is explicit under Rule 112 that there must be a prior
approval of the city or provincial prosecutor but in this case,
there was none. There was only the approval of the Regional
state Prosecutor who is not one of the persons who can
authorize the filing of the information.
Dont forget that you have to distinguish between authority to
investigate and authority to file.

Mendoza v. Alarma
Spouses Fernando and Fausta Alarma are the owners a parcel
of land
which was posted as a property bond for the
provisional liberty of a certain Joselito Mayo.

August 27, 2015 No Transcription

When the accused failed to appear in court as directed, the

trial court ordered his arrest and the confiscation of his bail
bond in favor of the government. It also directed the
bondsmen to produce within a period of 30 days the person of
the accused and to show cause why judgment should not be
entered against the bail bond. However, without a judgment
being rendered against the bondsmen, the trial court issued a
writ of execution against the land. The land was eventually
sold at public auction and petitioners Winston Mendoza and Fe
Miclat emerged as the highest bidders.

RULE 117

Issue: WON the Court followed the procedure in forfeiture of

the property bond
Held: No. The provision, Sec. 21 Rule 114 clearly provides for
the procedure to be followed before a bail bond may be
forfeited and a judgment on the bond rendered against the
surety. In Reliance Surety & Insurance Co., Inc. v. Amante,
Jr., we outlined the two occasions upon which the trial court
judge may rule adversely against the bondsmen in cases
when the accused fails to appear in court. First, the non-

WHO CAN INVESTIGATE

Investigating prosecutor. This is an SSS case and Tolentino
was given authority to investigate.

August 31, 2015

Therefore, there is a valid ground for a motion to quash.

Section 3. Grounds The accused may move to quash the
complaint or information on the following grounds:
a.
b.
c.
d.

Xxx
Xxxx
That the court trying the case has no jurisdiction over the
person of the accused.
That the officer who filed the information had no authority to
do so. xxxxxx

In other words, the person who filed the information should

be one who is authorized to conduct preliminary investigation.
If PI is not required, it is still the prosecutor who should file
the information. When we talk about crimes that cannot be

e.

That it does not conform substantially to the prescribed form.

We already showed you a sample of an information. There
must be a caption, Office of the Prosecutor, Department of
Justice, etc, etc. There must be a certification and the
certification is under oath. The information must be in the
prescribed form so if something is missing, it is a ground for a
motion to quash.

f.

That more than one offense is charged except when a single

punishment for various offenses is prescribed by law;
This is what we call a DUPLICITOUS information. Remember
Rule 110, section 13. An information must charge only 1
offense except those exceptions that we took up. This
information is quashable if there is a motion to quash.

WHO CA
The inve
his own.
This case
approval

g.

That the criminal action or liability has been extinguished;

There is no defect in the information. Rather, there is really no
more reason to file the information. Reasons:

1.
2.
3.
4.

h.

a.

b.
c.
d.
2.

Death of the accused;

Accused already served his sentence;
Prescription of the crime;
Prescription of the penalty;
If the action has prescribed, then there is no point in filing the
information.

These are amendments that are ordered by the court. These

are not the amendments that you file a motion for.
So, we have an information, then we have a motion to quash
attacking the information. Here comes the court issuing an
order for the prosecution to amend the information. The
motion to quash shall be granted if the prosecution fails to
make the amendment, or the complaint or information still
suffers from the dame defect.

That it contains averments which, if true, would constitute a

legal excuse or justification; and
There are times that by reading the information, one can
surmise that there is a legal excuse.
Examples:

1.
2.

Information says that the crime is homicide because at a

certain date, the accused stab the victim because the victim
tries to stab the accused first. Legal justification: Self-defense
Information charged X with homicide. It alleged that when he
committed the crime, he was insane. Legal justification:
exempting circumstance of insanity
Read: Landingan v. People (facts are a bit complicated;
privilege communication)

1.
2.

Lack of probable cause is not a defect in the information but

something that is determined by the prosecutor.
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.
DOUBLE JEOPARDY is a ground for a motion to quash.
SECTION 4
There are two situations here:

When shall he not be released?

1.
2.

If there is an order to file a new information;

Even if there is no order, if he is in custody for another
charge.
Gonzalez vs. Judge Salvador
Gonzalez filed a case for libel against Glendale (?). After
Glendale was arraigned, he filed a motion to quash the
information on the ground that the information failed to allege
that the crime was committed in Makati or that the article was
first published in Makati which is required in cases of libel.
May 29, 2004- The trial court granted the motion to quash.

This means that the court granted the motion to quash. Does
the case end there? No. The court may order that another
complaint or information be filed except those provided under
section 6. In other words, if the information is quashed, it can
either be amended (?) or it can be refiled.

Glendale: since the motion to amend the information was filed

26 days later or beyond the reglementary period of 15 days,
the order granting the motion to quash had already become
final and executory and the order to file a new information
was not contained in the order granting the motion to quash.

Exception:

Issue: was the RTC correct in allowing the amendment? No.

The criminal liability of the accused has already been

extinguished;
The ground for quashal is double jeopardy.

Section 5, there must be an order to file a new information.

In the case at bar, the motion to quash was already granted
without an order to file a new information. There was also no
order to amend the information.
In all events, the prosecution is not precluded from filing a
new information against Glendale as long has prescription has
not yet set in.

We have a situation where the accused files a motion to

quash. He is detained in jail. Then, the motion to quash is
granted. In the order granting the motion to quash, there is a
statement there that the prosecution should file another
information.

An amendment under Section 4 and 5 is not by a motion filed

by the accused it is BY AN ORDER OF THE COURT as a
reaction to a motion to quash.

Can the accused whose motion to quash is granted be

released? Only if the court does not order the filing of a new
information. Unless he is also in custody for another charge.

If there is no order to amend the information, what should

Gonzalez have done? What does Section 5 say? He should
have filed a new information. When? Within the prescription
period for filing the action.

When shall he be released?

1.

The court issues an order to file a new information but no new

information was filed by the prosecutor within the time
specified

26 days after receiving the order- Gonzalez filed a motion to

amend the information. RTC granted the motion to amend

If the order is made, the accused, if in custody, shall not be

discharged unless admitted to bail.

file a petition for review with the secretary of Justice; or

If the information has already been filed in court, and if has
already been arraigned thus, he can no longer file a motion
for review, he can file a MOTION FOR REINVESTIGATION

2.

SECTION 5

These are the only 2 grounds that will bar the refiling of the
information.

Is no probable cause a ground for quashal? No. if the accused

feels that there is no probable cause to hold him for trial, he
should:
1.
2.

The motion to quash is based on an alleged defect of the

information
Ex. Not in accordance with the prescribed form. Form used
was for an affidavit-complaint. There is no need to quash the
information. The court shall (not may) order that an
amendment be made.
It was not signed by the proper officer
No approval by the head of the office
Duplicitous information
The ground for quashal is that the facts charged do not
constitute an offense. (Section 3a, Rule 117)

39

1.

Page

What is the effect of not filing a motion to quash when the

information charges more than 1 offense? We will see later on
that the accused can be convicted of as many offense as
those that are charged in the information.

If there is no order made by the court to file another

information

Before the reglementary period, he can file a Motion for

Reconsideration with Motion to Accept Amended Information.
If the court grants it, then dismissal would not push through.
After 15 days (reglementary period), the only solution is to
file a new case/ information.

Dabalos v. RTC
Dabalos was charged of violation of RA 9262. In the
information, it was alleged that the offense was committed
during the relationship of Dabalos and the victim. Upon
arrest, Dabalos filed a Motion for Judicial determination of
probable cause with Motion to Quash contending that the
offense was committed after his relationship with the victim.
In RA 9262, it is essential that there is a relationship between
the victim and the accused.

2.
a.
3.
a.
b.

The accused has been convicted

If he has been convicted, he can no longer be charged with
the same offense. If he was already convicted for homicide,
he can no longer be charged with the homicide offense. Of if
for murder, with the murder offense.
The accused has been acquitted
If the accused has been acquitted of murder offense, he can
no longer be charged with the homicide offense (homicide is
necessarily included in the crime of murder)
The case is dismissed
WITH HIS EXPRESS CONSENT.
WITHOUT HIS EXPRESS CONSENT

40

1.
a.

Page

Did the filing of the original information suspend the running

of the period (prescription)? If the information was not valid
or was quashed, then prescription might set in.

What defect is found in the information? Section 3a of Rule

117- That the facts charged do not constitute an offense.
SECTION 6
General rule: the order sustaining the motion to quash shall
not be a bar to another prosecution to another offense.
The prosecution can file another information as long as
prescription has not yet set in.

The first part of Section 7 talks about double jeopardy for the
same offense. Requisites:
1.
a.
i.
ii.
b.
c.
i.
2.
a.
i.

Exception:
1.
2.

Section 3g- the criminal liability of the accused has been

extinguished;
Section 3i Double jeopardy

ii.
iii.

If the trial court has no jurisdiction over the offense, it will be

forced to quash the information. However, the prosecution can
file the case in the court having jurisdiction over the case.
Dean Inigo: the grounds for a motion to quash, if its granted,
do not really result to a total victory for the accused. As a
matter of fact, there are cases where it is not advisable to file
a Motion to Quash.
SECTION 7
DOUBLE JEOPARDY. THE PERIL in which the person is put
when he is regularly charged with a crime in a tribunal
properly organized and competent to try him
3 situations:

When there is grave abuse of discretion on the part of

the court ordering the dismissal

c.

the case against him was dismissed or terminated without his

express consent
the case was terminated not on the merits- no evidence and
witnesses presented, Demurrer
If the case was dismissed because the motion to quash filed
by the accused was granted, the prosecutor can file another
information because the termination was with his express
consent. He cannot invoke double jeopardy.
General Rule: When the dismissal of the case is without
the consent of the accused he can later on invoke his
right against double jeopardy.
Instances when the dismissal is with the express consent
of the Accused wherein he CANNOT invoke double jeopardy:
Provisional dismissal
Dismissal is without prejudice
Done on Motion of the accused Ex. Motion to Quash
When the accused agrees to the dismissal
When the accused files a Motion for Reconsideration
Jurisprudence:
Silence does not mean consent (People v. Ilagan)
The accused filed a motion for reinvestigation (People vs.
Vergara)

i.
ii.

iii.
iv.

WoN the RTC was correct in denying the Motion to Quash. Yes.
Under Section 4, Rule 117 of the RRoCP, if the defect in the
amendment can be cured by an amendment, the court shall
order the amendment. The RTC was correct in ordering the
amendment of the information and denying the motion to
quash.

2)

b.
i.

ii.
1)

The first jeopardy must have been validly attached.

There must be a valid complaint or information.
Valid Duplicitous information (take note)
Invalid those filed by the wrong officer, it does not follow
the prescribed form
It was filed before a court of competent jurisdiction.
The accused has been arraigned and has pleaded.
If he has already been arraigned and pleaded not guilty, then
the first jeopardy was validly attached
The second jeopardy must have been validly
terminated.
The accused has been convicted- decision finding the accused
guilty of the crime charged against him.
After 15 days from the promulgation of judgment, the
decision becomes final. If he appeals within the 15-day
period, the conviction is not yet final. The case will go on with
the appellate court
Until such time that there is a final conviction, that is the only
time that the first jeopardy was terminated because of
conviction
Lets say the accused was already convicted. What if the
penalty imposed by the court is wrong, can the prosecution
appeal? No. because by appealing, you are questioning again
the same offense after the first jeopardy has been validly
terminated.
The accused has been acquitted
When the accused is acquitted, the judgment of ACQUITTAL
IMMEDIATELY BECOMES FINAL. If the prosecution appeals the
acquittal, then the accused can invoke double jeopardy
because they are questioning the same offense that has
already been terminated
General Rule: The acquittal of the accused will put him
in double jeopardy.
Exceptions:
When the State is deprived of due process there are
anomalies in the procedure - Landmark Case: Galman vs.
Sandiganbayan

1)
2)
3)
4)
5)
1)
2)

v.

1)
2)

3)

1)
2)

General Rule: If the dismissal is made with his express

consent, he cannot invoke his right to double jeopardy .
Exception:
When the dismissal is grounded on the right to speedy trial
When the dismissal is based on insufficient evidence
(DEMURRER- a motion to dismiss filed by the accused on the
ground that the prosecutions evidence is weak and
insufficient to convict him done after the presentation of
evidence by the prosecution)
Where the dismissal is made by virtue of the accused
becoming a State witness
Exceptions to the Exception:
When the State is deprived of due process
When there is grave abuse of discretion on the part of
the court ordering the dismissal

vi.
Effect of consent to dismissal: the accused is deemed to
have waived his right against double jeopardy

3.

the second case is for the same offense, or an offense

that is necessarily included in or necessarily includes
the first offense
The second part of Section 7 talks about conviction.
Remember, the 3rd requisite is that the 2nd case must be for
the same offense.
So, if the accused is charged with homicide, he cannot be
charged with murder. If he is charged with murder, he cannot

a.
i.

b.
i.

c.

i.

ii.

The graver offense developed due to supervening facts

arising from the same act or omission constituting the
former charge.
People vs. Tehankee Supervening Event Doctrine was
thoroughly explained. Mr. Tehankee shot this girl. He was
charged with frustrated murder because the girl did not die
right away. Then, he was convicted for frustrated murder.
After he was convicted, the victim died. The grabber offense
which is murder developed due to supervening facts arising
from the same act or omission constituting the former charge.
The same gunshot which caused the frustrated murder caused
the murder because of supervening events (the death of the
victim)
The facts constituting the graver offense became
known or were discovered only after a plea was
entered in the former complaint or information
This is not a supervening event but a NEWLY DISCOVERED
FACT- it is there but it was only discovered after he entered
his plea. Ex: the qualifying circumstances of murder were only
discovered after he was convicted of homicide
The plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party except as provided in Section 1(f) of
Rule 116.
During the arraignment the accused can enter into a plea
bargain but only in the presence of the offended party and
with his consent unless the offended party did not appear
despite being duly notified. In such case, only the prosecutors
consent is required
Situation: during the plea bargain, the accused who was
charged with murder plead guilty to homicide which the
offended party did not give his consent. Despite the offended
partys objection, the judged convicted the accused for
homicide. The offended party filed a new complaint for
murder. Can the accused invoke his right against double

41

jeopardy? No, because the plea bargain was made without the
consent of the offended party
In any of the foregoing cases, where the accused satisfies or
serves in whole or in part the judgment, he shall be credited
with the same in the event of conviction for the graver
offense.

Page

be charged with homicide. Despite that rule, it states here

that there will be no double jeopardy if he is convicted and he
is charged again for an offense which necessarily includes the
offense charged in the former complaint or information if:

So if he served for the lesser offense, that will be credited.

Benares v. Lim
An information was filed against Benares by Lim charging him
of Estafa. The prosecution was given 15 days to present its
evidence but the prosecution failed to do so. Thus, Benares,
filed a Motion for the dismissal of the case due to Lack of
Evidence. Despite the notice given to him, Lim failed to attend
the hearing. The MTC extended the period for him to present
his evidence but still, Lim failed to present the same. Hence,
the case was dismissed due to the failure of the prosecution
to prosecute the case.
Lim filed a motion for reconsideration of the dismissal with
motion to admit the exhibits. Benares invoked his right
against double jeopardy.
Ruling: Benares cannot invoke his right against double
jeopardy. As provided under Section 7, Rule 117 of the RRoCP,
there are 4 elements for double jeopardy to attach:
1. upon a valid complaint or information or a valid indictment;
2. The case was tried in a court of competent jurisdiction;
3. the accused has been arraigned and pleaded to the charge
against him;

5. he is prosecuted anew for the offense charged, for any

attempt to commit the same or the frustration thereof, or any
offense which necessarily includes or is necessarily included in
the offense charged in the former complaint or information.
As regards the fourth element, there was no conviction or
acquittal. There was only dismissal of the case. However, the
dismissal of the case was with Benares express consent
because he filed a motion to dismiss.
He filed a motion to dismiss praying that the case be
dismissed for lack of evidence and the court granted it. Thus,
the dismissal was with his express consent. Therefore, he
cannot invoke double jeopardy.
Tan v. People. The same. The dismissal was made with the
express consent of the accused.
Tan v. People
Informations were filed against Tan with the RTC. Tan moved
for the dismissal of the case invoking his right to speedy trial.
The judge granted the same.
Tan is not placed in Double jeopardy. Although it may be true
that the dismissal of the case was with Tans consent,
however, it was grounded on the violation of his right to
speedy trial. Therefore, he should be placed in double
jeopardy. However, this case is different. The judge ordered
the dismissal without basis. Hence, it was issued with grave
abuse of discretion resulting to lack or excess of jurisdiction.
Therefore, the order of dismissal was null and void and Tan
could not be placed in double jeopardy.
This is the exception to the exception.
September 1, 2015

4.there has been an acquittal or conviction or that the case

has been terminated or dismissed without his express
consent;

No Transcription =(