Proposed Revision on the Rules of Criminal Procedure Feb 5 (1)

8/11/2019 Proposed Revision on the Rules of Criminal Procedure Feb 5 (1)

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

BY JUDGE MARLO B. CAMPANILLA

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SECTION 1, RULE 110:

SECTION 1. Institution of criminal actions.Criminal actions shall beinstituted as follows: (a) For offenses where a preliminary investigation isrequired pursuant to section 1 of Rule 112, by filing the complaint with the

proper officer for the purpose of conducting the requisite preliminaryinvestigation. (b) For all other offenses, by filing the complaint or informationdirectly with the Municipal Trial Courts and Municipal Circuit Trial Courts, orthe complaint with the office of the prosecutor. In Manila and other charteredcities, the complaint shall be filed with the office of the prosecutor unlessotherwise provided in their charters.

The institution of the criminal action shall interrupt the running of the

period of prescription of the offense charged unless otherwise provided inspecial laws.

PROPOSED REVISION:

SECTION 1. Institution of criminal actions.Criminal actions shall beinstituted as follows: (a) For offenses where a preliminary investigation isrequired pursuant to section 1 of Rule 112, by filing the complaint with theproper officer for the purpose of conducting the requisite preliminary

investigation. (b) For all other offenses, by filing the complaint or informationdirectly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or

the complaint with the office of the prosecutor. In Manila and other charteredcities, the complaint shall be filed with the office of the prosecutor unlessotherwise provided in their charters.

The institution of the criminal action shall interrupt the running of theperiod of prescription of the offense punishable under special law or felonycharged unless otherwise provided by law.

EXPLANATORYNOTE:

Interruption of prescription of felony and offense - The last

paragraph of Section 1, Rule 110 of the Rules of Criminal Procedure containstwo parts. The first part The institution of the criminal action shall interrupt therunning of the period of prescription of the offense charged is an adoption of the

principle in Francisco vs. Court of Appeals, 122 SCRA 538, which provides thatthe filling of the complaint with the fiscals office or court interrupts the periodof prescription of the offense charged. The second part unless otherwiseprovided in special laws is anadoption of the ruling in Zaldivia vs. Reyes, 211

SCRA 538, which provides an exception to the general rule, and that is,prescriptive period of crime punishable under special laws and municipalordinance shall only be interrupted upon filing of complaint or information incourt.

However, the Zaldivia rule has been abandoned by the Supreme Court inSEC vs. Interport Resources Corporation, G.R. No. 135808, October 6, 2008, En

Banc, Panaguiton vs. Department of Justice, G.R. No. 167571, November 25,2008 and People vs. Pangilinan, G.R. No. 152662, June 13, 2012, under which

cases filing of complaint in the fiscal office, or complaint or information in courtinterrupts the prescriptive period of crime, whether it is punishable under the

Revised Penal Code or special laws.


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The first part of the proposed revision The institution of the criminalaction shall interrupt the running of the period of prescription of the offense

punishable under special law or felony charged reflects the latestjurisprudence that eliminates the distinction between felony under the Revised

Penal Code and offense under a special law in terms of interruption of

prescription. The last part unless otherwise provided by law is a recognitionof the power of Congress to provide through legislation a special rule oninterruption of prescription.

SECTION 3, RULE 110

SEC. 3. Complaint defined.A complaint is a sworn written statementcharging a person with an offense, subscribed by the offended party, any peaceofficer, or other public officer charged with the enforcement of the law violated.

PROPOSED REVISED VERSION:

SEC. 3. Complaint defined.A complaint is a sworn written statementcharging a person with an offense, subscribed by the offended party, any peaceofficer, or other public officer charged with the enforcement of the lawviolated and filed with the court.

EXPLANATORY NOTE

Complaint filed with the court -There are two kinds of complaint, towit: complaint filed with the court and one filed with the office of the fiscal.Complaint filed with the fiscal prior to judicial action may be filed by any

person (Salazar vs. People, G.R. No. 149472, October 15, 2002). AccordingJustice Florenz Regalado, the complaint (which must be subscribed by theoffended party, any peace officer, or other public officer charged with theenforcement of the law violated) referred to in Rule 110 contemplates one filedin court to commence a criminal action in those cases where a complaint of theoffended party is required by law (such as Section 5, Rule 110 on institution of

action involving private crimes, or Section 7, Rule 112 on institution of criminalaction in the absence of inquest prosecutor).

The proposed revision will clearly show that the rule on subscription of

complaint by offended party or peace officer does not apply to complaint to be

filed with the fiscal for preliminary investigation.

SECTION 14, RULE 110

SEC. 14. Amendment or substitution.A complaint or information may beamended, in form or in substance, without leave of court, at any time before

the accused enters his plea. After the plea and during the trial, a formalamendment may only be made with leave of court and when it can be donewithout causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of

the offense charged in or excludes any accused from the complaint orinformation, can be made only upon motion by the prosecutor, with notice tothe offended party and with leave of court. The court shall state its reasons inresolving the motion and copies of its order shall be furnished all parties,especially the offended party.


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If it appears at any time before judgment that a mistake has been madein charging the proper offense, the court shall dismiss the original complaint or

information upon the filing of a new one charging the proper offense inaccordance with section 19, Rule 119, provided the accused shall not be placed

in double jeopardy. The court may require the witnesses to give bail for their

appearance at the trial. (14a)


SEC. 19. When mistake has been made in charging the proper offense.When it becomes manifest at any time before judgment that a mistake hasbeen made in charging the proper offense and the accused cannot be convictedof the offense charged or any other offense necessarily included therein, theaccused shall not be discharged if there appears good cause to detain him. Insuch case, the court shall commit the accused to answer for the proper offense

and dismiss the original case upon the filing of the proper information. (11a)

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

SEC. 14. Amendment or substitutionA complaint or information may beamended, in form or in substance, without leave of court, at any time beforethe accused enters his plea. After the plea and during the trial, a formalamendment may only be made with leave of court and when it can be donewithout causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of

the offense charged in or excludes any accused from the complaint orinformation, can be made only upon motion by the prosecutor, with notice tothe offended party and with leave of court. The court shall state its reasons inresolving the motion and copies of its order shall be furnished all parties,especially the offended party.

When it appears at any stage but before judgment that a mistake hasbeen made in charging the proper offense and the accused cannot be convictedof the offense charged or any other offense necessarily included therein, thecourt shall dismiss the original complaint or information upon the filing of anew one charging the proper offense. But when such mistake becomes

manifest during trial, the court may motu proprio direct the filing of theappropriate charge, and dismiss the case upon filing thereof. In such case, theaccused shall not be discharged if there appears good cause to detain him andthe court may require the witnesses to give bail for their appearance at thetrial.

If the offense to be charged in the new information or complaint iscognizable by the Regional Trial Court, re-investigation shall be conductedbefore substitution shall be allowed.

EXPLANATORY NOTES

There are two provisions in the Rules of Criminal Procedure that governsubstitution of information or complaint; one is the third paragraph of Section14, Rule 110, while the other is Section 19, Rule 119.

1. Distinctions between Rule 110 and Rule 119 - Under Rule 110 andRule 119, whena mistake has been made in charging the proper offense, the


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court shall dismiss the original information or complaint upon the filing of anew one charging the proper offense.

a. Different offenses - Under Rule 119, substitution is proper where

the accused cannot be convicted of the offense charged or any other offense

necessarily included therein. In sum, substitution requires the offense to becharged in the new information or complaint is different from and is notnecessarily included in the offense charged in the original one. Although Rule110 is silent on this matter; the Supreme Court En Banc ruled in Teehankee

vs. Madayag, G.R. No. 103102, March 6, 1992 that substitution (under Rule110) requires or presupposes that the new information involves adifferent offense which does not include or is not necessarily included in theoriginal charge, hence the accused cannot claim double jeopardy.

b. Double jeopardy - Rule 110 expressly requires that substitution mustnot place the accused in double jeopardy. While Rule 119 is silent on this

matter, the filing of new information or complaint after the dismissal of theoriginal one shall not place the accused in double jeopardy because the offensecharged in the former is different from or is not necessarily included in theoffense charged in the latter (People vs. Madayag).

c. Stage when substitution is allowed - In Rule 110, mistake incharging the proper offense appears at any time before judgment; while in Rule119 such mistake becomes manifest also at any time before judgment.However, since Rule 119 governs the trial stage of a case, the permissible stage

for effecting that substitution must be during the trial. On the other hand, Rule110 contemplates a longer time span to make substitution, and that is, at any

stage before judgment, which includes the period from the filing of theinformation up to and before trial (See: Galvez vs. CA, G.R. No. 114046 October24, 1994).

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

Rule 119 is the rule specifically governing the trial stagewhere evidence is necessarily being presented, hence the trial court

is now in a better position to conclude that manifestly the accusedcannot be convicted of the offense charged or of one that itnecessarily includes. It would primarily be the function of the courtto motu proprio order the dismissal of the case and direct the filing ofthe appropriate information. We do not discount the possibility of

either the prosecution or the defense initiating such dismissal andsubstitution at that stage, although, from a realistic point of view,that would be a rare situation. This provision, therefore, is moredirectly and principally directed to the trial court to invest it with therequisite authority to direct by itself the dismissal and refiling of the

informations therein contemplated.

"Rule 110, on the other hand, provides the proceduralgovernance for the prosecution of offenses. Section 14 thereof,quoted infra, provides in its second paragraph the procedure andrequisites for the substitution of a defective information by thecorrect one. Although, just like Section 11 of Rule 119 thepermissible stage for effecting that substitution is "at any time before


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judgment," unlike the latter situation it is sufficient that "it appears .. . that a mistake has been made in charging the proper offense, . . .

." The situation under said Section 14 contemplates a longer timespan, inclusive of the period from the filing of the information up to

and before trial. Since no evidence has been presented at that stage,

the error would appear or be discoverable from a review of therecords of the preliminary investigation. Of course, that fact may beperceived by the trial judge himself but, again, realistically it will bethe prosecutor who can initially determine the same. That is whysuch error need not be manifest or evident, nor is it required thatsuch nuances as offenses includible in the offense charged be takeninto account. It necessarily follows, therefore, that the prosecutor canand should institute remedial measures for the dismissal of theoriginal information and the refiling of the correct one, otherwise hewould be recreant to his duties."

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

3. Adoption of Galvez ruling - Under the proposed revision,substitution is proper when mistake in charging the proper offense appears atany stage of the case. As observed in Galvez case, this is usually discovered bythe fiscal. In this situation, the public prosecutor can move for the dismissal of

the information upon filing of the proper one. But during the trial, suchmistake may become manifest upon presentation of evidence. With this

manifest mistake, the court may order substitution on its own initiative. Theproposed revision is an incorporation of the ruling in the Galvez case.

3. Offense charged is different from proper offense to be charged -Under the proposed revision, substitution is only proper when the offensecharged in the new information or complaint is different from or is notnecessarily included in the offense charged in the original. This adopts theprinciple in Tehankee case.

The phrase provided the accused shall not be placed in doublejeopardyin Rule 110 is not included in the proposed revision. Since the

offense charged in the new information or complaint is different from or is notnecessarily included in the offense charged in the original, the accused will notdefinitely be place in double jeopardy by the filing of new information orcomplaint. Hence, inserting the said phrase in the rule on substitution is just asurplusage.

4. Reinvestigation - Since substitution necessarily involves a substantialchange from the original charge, another preliminary investigation is entailed(Teehankee vs. Madayag, supra). The proposed revision incorporates this ruleby providing reinvestigation as a condition for substitution if the case is

cognizable by the Regional Trial Court. Reinvestigation is not needed if the caseis cognizable by the first level court since preliminary investigation is notrequired therein.

SECTION 15 (C) OF RULE 110

RULE 110


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Section 15.Place where action is to be instituted.

x x x

(c) Where an offense is committed on board a vessel in the course of its voyage,

the criminal action shall be instituted and tried in the court of the first port ofentry or of any municipality or territory where the vessel passed during suchvoyage, subject to the generally accepted principles of international law.

PROPOSED REVISION

Section 15.Place where action is to be instituted.

x x x

(c) Where an offense is committed on board a vessel in the course of its voyage,

the criminal action shall be instituted and tried in the court of the first port ofentry or of any municipality or territory where the vessel passed during suchvoyage.

EXPLANATORY NOTE

Rule on venue, not subject to international law - Section 15 (c), Rule110 of the Rules of Criminal Procedure provides a rule on venue involvingcrime committed in a vessel, which is subject to the generally acceptedprinciples of international law. The rule on venue is a domestic concern andthe international law cannot dictates to us which court of territorial jurisdiction

should take cognizance over a crime committed aboard a vessel.

That is why the proposed revision deletes the phrase subject to the

generally accepted principles of international law in the said provision. What issubject to international law is not the rule on venue but the territorial principleunder Article 2 of the Revised Penal Code. The rule on venue should not beconfused with the principle of territoriality. The principle of territorialityprovides that Philippines has jurisdiction over crime committed within its

territory subject to international law such as the Convention on the Law of theSea that recognizes the jurisdiction of the flag state over crimes committedboard a foreign merchant vessel travelling in the territorial water of the

Philippines. On the other hand, the rule of venue identifies the particular courtof territorial jurisdiction (such as Regional Trial Court of Manila, Regional TrialCourt of Cebu, etc.), which can take cognizance over a crime. The application of

rule of venue presupposes that the Philippines has jurisdiction over crime inaccordance with territoriality principle, extra-territoriality principle orinternational law.

SECTIONS 2, 6 AND 7, RULE 111

SEC. 2. When separate civil action is suspended.x x x

If the criminal action is filed after the said civil action has already beeninstituted, the latter shall be suspended in whatever stage it may be foundbefore judgment on the merits. The suspension shall last until final judgment

is rendered in the criminal action. Nevertheless, before judgment on the meritsis rendered in the civil action, the same may, upon motion of the offendedparty, be consolidated with the criminal action in the court trying the criminalaction. In case of consolidation, the evidence already adduced in the civil actionshall be deemed automatically reproduced in the criminal action without


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prejudice to the right of the prosecution to cross-examine the witnessespresented by the offended party in the criminal case and of the parties to

present additional evidence. The consolidated criminal and civil actions shallbe tried and decided jointly.

SEC. 6. Suspension by reason of prejudicial question.A petition for

suspension of the criminal action based upon the pendency of a prejudicialquestion in a civil action may be filed in the office of the prosecutor or the courtconducting the preliminary investigation. When the criminal action has beenfiled in court for trial, the petition to suspend shall be filed in the same

criminal action at any time before the prosecution rests.

SEC. 7. Elements of prejudicial question.Theelements of a prejudicialquestion are: (a) the previously instituted civil action involves an issue similaror intimately related to the issue raised in the subsequent criminal action, and(b) the resolution of such issue determines whether or not the criminal actionmay proceed.

PROPOSED REVISION

SEC. 2.Suspension of previously instituted civil action; consolidation.x x x

If the criminal action is filed after the civil action for the recovery of civilliability arising from the offense charged has already been instituted, the lattershall be suspended in whatever stage it may be found before judgment on themerits. The suspension shall last until final judgment is rendered in thecriminal action. Nevertheless, before judgment on the merits is rendered in the

civil action, the same may, upon motion of the offended party, be consolidatedwith the criminal action in the court trying the criminal action. In case of

consolidation, the evidence already adduced in the civil action shall be deemedautomatically reproduced in the criminal action without prejudice to the rightof the prosecution to cross-examine the witnesses presented by the offendedparty in the criminal case and of the parties to present additional evidence. Theconsolidated criminal and civil actions shall be tried and decided jointly.

SEC. 6. Suspension of subsequently instituted criminal action by reason ofprejudicial question.A petition for suspension of the criminal action basedupon the pendency of a prejudicial question in a civil action may be filed in theoffice of the prosecutor or the court conducting the preliminary investigation.When the criminal action has been filed in court for trial, the petition tosuspend shall be filed in the same criminal action at any time before the

prosecution rests.

SEC. 7. Elements of prejudicial question.Theelements of a prejudicialquestion are: (a) the previously instituted civil action involves an issue similaror intimately related to the issue raised in the subsequent criminal action, (b)the resolution of such issue determines whether or not the criminal action mayproceed, and (c) the previously instituted civil action does not involve theenforcement of civil liability arising from the crime charged in the criminal

action, and is not an independent civil action.

EXPLANATORY NOTE

A previously instituted civil action involving civil liability arising fromcrime shall be suspended upon the subsequent institution of criminal actionpursuant to the rule on preference of criminal action under second paragraphof Section 2, Rule 111. While an independent civil action, previously orsubsequently instituted, shall proceed independently of the criminal actionpursuant to Section 3 thereof. On the other hand, subsequent criminal actionshall be suspended if there is a previously instituted civil action involving


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prejudicial question pursuant to the rule on preference of civil action underSection 6 thereof.

However, some lawyers and law students cannot distinguish these threerules. According to them, the provisions in Rule 111 are the most complicated

rules in Criminal Procedure. The proposed revision attempts to make the rules

more comprehensible by describing the civil liability involved in the civil actionunder Section 2, and rephrasing the titles of Section 2 and 6, and revealing thescope of the concept of prejudicial question as defined in Section 7. Theproposal will make the rule on preference of civil action, preference of criminal

action and independency of civil action easily distinguishable from each other.

SECTION 4, RULE 111

SEC. 4. Effect of death on civil actions.Thedeath of the accused afterarraignment and during the pendency of the criminal action shall extinguish

the civil liability arising from the delict. However, the independent civil actioninstituted under section 3 of this Rule or which thereafter is instituted toenforce liability arising from other sources of obligation may be continuedagainst the estate or legal representative of the accused after propersubstitution or against said estate, as the case may be. The heirs of theaccused may be substituted for the deceased without requiring theappointment of an executor or administrator and the court may appoint aguardian ad litem for the minor heirs.

The court shall forthwith order said legal representative orrepresentatives to appear and be substituted within a period of thirty (30) days

from notice.

A final judgment entered in favor of the offended party shall be enforcedin the manner especially provided in these rules for prosecuting claims againstthe estate of the deceased.

If the accused dies before arraignment, the case shall be dismissedwithout prejudice to any civil action the offended party may file against theestate of the deceased, (n)

PROPOSED REVISED VERSION

SEC. 4. Effect of death on civil actions.Thedeath of the accused beforefinal judgment shall extinguish not only the criminal liability but also civilliability arising from the crime. Independent civil actions under Section 3 ofthis Rule and that involving civil liability arising from other sources ofobligation survive despite the death of the accused. Substitution of thedeceased accused shall be governed by Section 16, Rule 3 of the Rules ofCourt. A final judgment entered in favor of the offended party shall be enforcedin the manner especially provided in these rules for prosecuting claims againstthe estate of the deceased.

EXPLANATORY NOTE

1. Death of accused before or after judgment - Section 4, Rule 111 ofthe Rules of Criminal Procedure governs a situation where the accused diesbefore final judgment. However, this rule is divided into two parts; one whenthe accused dies before arraignment, and the other, when death occurs after.Accordingly, if the accused dies after arraignment, it shall extinguish the civil


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liability arising from the delict. But if the accused dies before arraignment, thecase shall be dismissed without prejudice to any civil action the offended party

may file against the estate of the deceased.

Making two rules on the basis of the occurrence of the death of the

accused before or after arraignment is not in accordance with Article 89 of theRevised Penal Code as interpreted by the Supreme Court in People vs. Bayotas,

G.R. No. 102007 September 2, 1994.

Under Article 89, criminal liability and pecuniary liability areextinguished when the death of the offender occurs before final judgment.Some opines that the terms pecuniary liability mentioned in Article 89 are notthe same as civil liability arising from crime. However, according to Justice

Regalado, death of accused prior to final judgment terminates the civil liabilitydirectly arising from and solely based on the offense committed. In Bayotas

case

and and other allied cases, the Supreme Court agreed with the opinion of

Justice Regalado. That is why these cases ruled that death of the accusedduring the pendency of appeal extinguishes civil liability arising from crime.What is therefore important is that the accused dies before the finality ofjudgment. If he dies after final judgment, civil liability arising from crime

survives. If he dies before final judgment, it extinguishes civil liability arisingfrom crime regardless of whether death occurs before or after arraignment.

The proposed revision removes the last paragraph of original provision,and replaces the phrase after arraignment and during the pendency of thecriminal action inthe first paragraph with before final judgment to disregardthe occurrence of death of accused before or after arraignment as a basis for

providing two separate rules. The phraseology in the proposed revision reflectsthe rule on extinguishment of civil liability and criminal liability by reason of

death of the accused before final judgment in Article 89 of the Revised PenalCode as interpreted by the Bayotascase.

2. Independent civil actions - Actions under Articles 32, 33, 34 and2176 of the Civil Code and that involving liability arising from law, quasi-delict,contract, or quasi-contract under Article 31 of the said Code are independentcivil actions. The rule on implied institution of civil action with the criminal

action under Section 1, Rule 111 and the consolidation of civil action andcriminal action under Sections 2 does not apply to independent civil actions.

Hence, the proceedings in a criminal action and an independent civil action arealways separate. Since the proceedings are separate, criminal action should begoverned by Rules of Criminal Procedure while independent civil actions shouldbe governed by the Rules of Civil Procedure. To provide uniformity andsimplicity of the rule, the proposed revision adopts the rules on substitutionunder Section 16, Rule 3 of the Rules of Court.

SECTION 1, RULE 112

SECTION 1. Preliminary investigation defined; when required.Preliminary investigation is an inquiry or proceeding to determine whetherthere is sufficient ground to engender a well-founded belief that a crime hasbeen committed and the respondent is probably guilty thereof, and should beheld for trial.

Except as provided in section 7 of this Rule, a preliminary investigationis required to be conducted before the filing of a complaint or information for


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an offense where the penalty prescribed by law is at least four (4) years, two (2)months and one (1) day without regard to the fine. (1a)


SECTION 1. Preliminary investigation defined; when required.Preliminary investigation is an inquiry or proceeding to determine whetherthere is sufficient ground to engender a well-founded belief that a crime has

been committed and the respondent is probably guilty thereof, and should beheld for trial.

Except as provided in section 7 of this Rule, a preliminary investigationis required to be conducted before the filing of a complaint or information foran offense cognizable by the Regional Trial Court. If the offense is cognizable bythe first level court, preliminary investigation is not required unless otherwise

provided by law.

EXPLANATORY NOTE

1. Preliminary investigation - The rule that only cases cognizable withthe Regional Trial Court are subject to preliminary investigation is highly beingconsidered by the Committee on Revision of Rules of Criminal Procedure.

2. Right to preliminary investigation under the law - Under theproposed revision, if the offense is cognizable by the first level court,preliminary investigation is not required unless otherwise provided by law. This

rule recognizes the right of the accused to a preliminary investigation over

minor offenses if the same is granted by existing law such as Section 38 of RANo. 409, the Revised Charter of City of Manila, which provides that the fiscal ofthe city shall cause to be investigated all charges of crimes, misdemeanors, andviolations of ordinances. In fact, the Office of the City Prosecutor of Manila ispresently conducting preliminary investigation and inquest proceeding overcrimes punishable by a penalty of 4 years and 2 month of imprisonment orless.

SECTION 6, RULE 112

SEC. 6. When warrant of arrest may issue.(a) By the Regional

Trial Court .Within ten (10) days from the filing of the complaint orinformation, the judge shall personally evaluate the resolution of theprosecutor and its supporting evidence. He may immediately dismiss the case ifthe evidence on record clearly fails to establish probable cause. If he findsprobable cause, he shall issue a warrant of arrest, or a commitment order if theaccused has already been arrested pursuant to a warrant issued by the judgewho conducted the preliminary investigation or when the complaint orinformation was filed pursuant to section 7 of this Rule. In case of doubt on theexistence of probable cause, the judge may order the prosecutor to presentadditional evidence within five(5) days from notice and the issue must beresolved by the court within thirty (30)days from the filing of the complaint orinformation.

(b) By the Municipal Trial Court.When required pursuant to the secondparagraph of section 1 of this Rule, the preliminary investigation of casesfalling under the original jurisdiction of the Metropolitan Trial Court, MunicipalTrial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Courtmay be conducted by either the judge or the prosecutor. When conducted by


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the prosecutor, the procedure for the issuance of a warrant of arrest by thejudge shall be governed by paragraph (a)of this section. When the investigation

is conducted by the judge himself, he shall follow the procedure provided insection 3 of this Rule. If his findings and recommendations are affirmed by the

provincial or city prosecutor, or by the Ombudsman or his deputy, and the

corresponding information is filed, he shall issue a warrant of arrest. However,without waiting for the conclusion of the investigation, the judge may issue awarrant of arrest if he finds after an examination in writing and under oath ofthe complainant and his witnesses in the form of searching questions andanswers, that a probable cause exists and that there is a necessity of placingthe respondent under immediate custody in order not to frustrate the ends ofjustice.

(c) When warrant of arrest not necessary.A warrant of arrest shall notissue if the accused is already under detention pursuant to a warrant issuedby the municipal trial court in accordance with paragraph (b) of this section, or

if the complaint or information was filed pursuant to section 7 of this Rule or isfor an offense penalized by fine only. The court shall then proceed in theexercise of its original jurisdiction. (6a)

PROPOSED REVISION

SEC. 6. When warrant of arrest may issue.(a) By the RegionalTrial Court .Within ten (10) days from the filing of the complaint orinformation, the judge of the Regional Trial Court shall personally evaluate theresolution of the prosecutor and its supporting evidence. He may immediatelydismiss the case if the evidence on record clearly fails to establish probable

cause. If he finds probable cause, he shall issue a warrant of arrest, or acommitment order if the accused has already been arrested and the complaintor information was filed after inquest proceeding pursuant to section 7 of thisRule. In case of doubt on the existence of probable cause, the judge may orderthe prosecutor to present additional evidence within five (5) days from noticeand the issue must be resolved by the court within thirty (30) days from thefiling of the complaint or information.

(b) By the first level court.The judge of the inferior court shall follow theprocedure for the issuance of a warrant of arrest under paragraph (a) of thissection. However, if the judge finds that the case is covered by the rules on

summary procedure, he shall not issue warrant of arrest, or shall issue anorder releasing the accused, who was lawfully arrested without a warrant.

(c) Offense punishable by fine only A warrant of arrest shall not issuefor an offense penalized by fine only. The court shall then proceed in theexercise of its original jurisdiction.

(d) Motion for judicial determination of probable cause Hearing or a denovo trial is not required in determining probable cause for the issuance ofwarrants of arrests or commitment order unless the court in the exercise ofsound discretion decides to conduct it. Despite the pendency of a motion for

judicial determination of probable cause by the accused, the court shall makesuch determination within the required period.

Motion for judicial determination of probable cause is prohibited when

the case is covered by the Rules on Summary Procedure or after the court hasissued a warrant of arrest or commitment order.


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(e) Bench warrant The judge of the first level court or Regional TrialCourt may issue a bench warrant of arrest for failure of the accused to appear

whenever required or for violation of the condition of bail. Despite waiver ofappearance, the presence of the accused is still required at the arraignment,

during trial whenever necessary for identification purpose, and at the

promulgation of judgment unless it is for a light offense.No bench warrant of arrest shall be issued to a mere witness for failure

to obey a subpoena duly served unless he is given opportunity to explain whyhe should not be cited in contempt of court.

EXPLANATORY NOTE

1. First level court cannot conduct preliminary investigation -Under Section 6, Rule 112 of the Rules of Civil Procedure, the judge of theRegional Trial Court shall issue commitment order upon finding of probablecause if the accused has already been arrested pursuant to a warrant issuedby the judge (of first level court) who conducted the preliminary investigation.This is obsolete since judges of the first level courts cannot anymore conductpreliminary investigation. A.M. No. 05-8-26-SC, which took effect on 3October2005, has removed the conduct of preliminary investigation fromjudges of the first level courts. That is why the proposed revision merelymaintains the duty of the judge to issue commitment order upon finding ofprobable cause if the accused is lawfully arrested and charged in court after aninquest proceeding.

Second paragraph of Section 6 governs the manner of issuing warrant ofarrest by the courts of first level if preliminary investigation is required. Therule is divided into two parts, the first of which is where preliminary

investigation is conducted by the judge while the other by the prosecutor.This rule is already obsolete since judges of the first level courts cannotanymore conduct preliminary investigation. Moreover, one of the objectives ofrevising the rules is to simply them. That is why it is being highly consideredthat cases should be subject to preliminary investigation where the penalty

prescribed for the crime involved is not more than six (6) years. With this rule,there is no need to distinguish preliminary investigation conducted by judge offirst level court or by the prosecutor for purposes of determining whatprocedure should be followed in issuing warrant of arrest.

2. Uniform procedure in issuing warrant of arrest - To provideuniformity in the rule, the procedures under the proposed revision to befollowed in issuing warrant of arrest by the Regional Trial Court or inferiorcourt should be the same except when the case is covered by the Rules on

Summary Procedure.

3. Rules on Summary Procedure - In cases covered by the Rules onSummary Procedure, the court is not allowed to issue warrant of arrest uponthe filing of information although it can issue a bench warrant if the accusedfails to appear in court when required to do so. Thus, an accused prior to

conviction will not be arrested or detained unless he fails to appear whenrequired by the court or the rules. However, if the accused is lawfully arrested,but he cannot afford to post bail, he will remain under detention despite thecase is covered by the Rules on Summary Procedure. This is unfair especially ifthe accused voluntarily surrenders in recognition of the authority of theapprehending officer. This would create an absurd situation where an accused,who refuses to recognize the police authorities by evading arrest, will be reward


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by not placing him under detention unless he will fail to appear wheneverrequired while one, who recognizes the authorities by voluntarily surrendering

to them, will be penalized by not releasing him until he posts bail in cash or onrecognizance.

Under the proposed revised version of the rules, the court upon findingsthat the case is covered by the Rules on Summary Procedure should order therelease of the accused, who was lawfully arrested. This rule will place theaccused, who was arrested, and one who is not, approximately on equalfootings.

4. Non-issuance of warrant of arrest Under the third paragraph ofSection 6, Rule 112, warrant of arrest shall not be issued if the accused is

already under detention pursuant to a warrant issued by the municipal trialcourt in accordance with paragraph (b) of this section. The warrantcontemplated under this rule is one issued by the judge after conducting

preliminary investigation. This is already obsolete since judge is not anymoreauthorized to conduct preliminary investigation.

Under the said provision, warrant of arrest shall not be issued if the

complaint or information was filed pursuant to section 7 of this Rule. What iscontemplated under this rule is a situation where the accused is lawfullyarrested and a complaint or information is filed after conducting inquestproceeding. This rule should be deleted since it is already covered by the rulesunder first and second paragraphs of Section 6, Rule 112, where the judge ofthe Regional Trial Court or first level court upon finding of probable cause shall

issue commitment order instead of warrant of arrest if the accused is lawfully

detained.

However, the proposed revision retains the non-issuance of warrant foroffense for which the penalty prescribed is fine only.

5. Motion for judicial determination of probable cause - Filing ofmotions for judicial determination of probable court, which is now beingavailed of by law practitioners to protect the interest of their clients, may be acause of delay of the disposition of cases if there are no rules that will regulatesit. The proposed revision rules seek to regulate it.

a. Trial de novo or hearing is not required - In Laviste vs. Alameda, G.R.No. 182677, August 03, 2010, it was held:

To move the court to conduct a judicial determination of

probable cause is a mere superfluity, for with or without suchmotion, the judge is duty-bound to personally evaluate the resolutionof the public prosecutor and the supporting evidence. In fact, thetask of the presiding judge when the Information is filed with thecourt is first and foremost to determine the existence or non-

existence of probable cause for the arrest of the accused.

The rules do not require cases to be set for hearing todetermine probable cause for the issuance of a warrant of arrest ofthe accused before any warrant may be issued. Petitioner thuscannot, as a matter of right, insist on a hearing for judicialdetermination of probable cause. Certainly, petitioner "cannotdetermine beforehand how cursory or exhaustive the [judge's]examination of the records should be [since t]he extent of the judge's


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examination depends on the exercise of his sound discretion as thecircumstances of the case require." In one case, the Court

emphatically stated:

The periods provided in the Revised Rules of Criminal

Procedure are mandatory, and as such, the judge must determinethe presence or absence of probable cause within such periods.

In People vs. Yadao, G.R. Nos. 162144-54, November 13, 2012, theSupreme Court ruled:

The general rule of course is that the judge is not required,when determining probable cause for the issuance of warrants ofarrests, to conduct a de novo hearing. The judge only needs topersonally review the initial determination of the prosecutor findinga probable cause to see if it is supported by substantial evidence.

But here, the prosecution conceded that their own witnessestried to explain in their new affidavits the inconsistent statementsthat they earlier submitted to the Office of the Ombudsman.Consequently, it was not unreasonable for JudgeYadao, for thepurpose of determining probable cause based on those affidavits, tohold a hearing and examine the inconsistent statements and relateddocuments that the witnesses themselves brought up and were part

of the records. Besides, she received no new evidence from therespondents.

Despite of the Laviste case and Yadao case, some practitioners are stillinsisting that a hearing or a trial de novo be conducted before the court shoulddetermine probable cause. The proposed revision adopts the ruling in Lavistecase that the 10-30 day period to determine probable cause is mandatory and

hearing or trial de novo is not required in determining probable cause and theruling in Yadao case finding that the holding of a hearing is notunreasonable.

b. Prohibited motion - If the case is covered by the Rules on SummaryProcedure, the judge of the first level court has no duty to determine probablecause for purpose of issuing warrant of arrest. Hence, a motion for judicial

determination of probable cause should be considered as a prohibited motion.Allowing this motion will defeat the purpose of the Rules on SummaryProcedure, and that is, the speedy disposition of case.

The issuance of a warrant of arrest presupposes the finding of probablecause. Hence, it is not proper to file motion for judicial determination ofprobable cause after the issuance of warrant of arrest since there is no need todetermine probable cause. Of course, the order finding probable cause andrequiring the issuance of warrant for being an interlocutory order is subject toa motion for reconsideration. Such motion is not covered by the prohibition.

If a motion for judicial determination of probable cause will be alloweddespite the issuance of warrant of arrest, and the same is denied, the accusedmay file a motion for reconsideration. This will delay the case. But if the filingof a motion for judicial determination of probable cause after the issuance ofwarrant is prohibited, although a motion for reconsideration of the orderfinding probable cause is allowed, the delay of the case is not so much sincethere is only one motion to be resolved by the court.


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6. Bench warrant of arrest - The Rules of Criminal Procedure fails toregulate issuance of bench warrant of arrest. Because of this, some

practitioners and prosecutors are moving for the issuance of warrant of arrestfor failure of accused to appear in court although there is a waiver of

appearance and his appearance is not necessary. In order to avoid the

indiscriminate issuance of bench warrants, the same should be subject toregulation and guidelines.

Settled is the rule that the presence of the accused is required andcannot be waived (a) at arraignment and plea, whether of innocence or ofguilt, (b) during trial whenever necessary for identification purposes, and (c) atthe promulgation of sentence, unless it is for a light offense, in which case theaccused may appear by counsel or representative (People vs. Lavides, G.R. No.129670, February 01, 2000). The issuance of the warrant of arrest for failure ofaccused to appear at the trial is unnecessary if there is a waiver of appearanceand there is no order specificallyrequiring him to appear for purpose of

identification (Bernardo vs. People, G.R. NO. 166980, April 03, 2007). Theproposed revision adopts this rule by specifying the circumstances where

bench warrant can be issued for failure of accused to appear wheneverrequired.

7. Opportunity to explain Failure of a mere witness to appear totestify is not a ground for citing him for direct contempt and for immediatelyissuing a bench warrant of arrest. However, there are still practitioners, whoare moving for the immediate issuance of warrant of arrest for failure of merewitness to appear in court. The proposed revision introduces the properprocedure to be followed to punish a disobedient witness, and that is, charginghim for indirect contempt of court (Section 3 [f], Rule 71 of the Rules of Court).

Hence, the witness should be given opportunity to explain why he should notbe cited in contempt of court (Section 4, Rule 71).

SECTION 7, RULE 112

SEC. 7. When accused lawfully arrested without warrant.When aperson is lawfully arrested without a warrant involving an offense whichrequires a preliminary investigation, the complaint or information may be filedby a prosecutor without need of such investigation provided an inquest hasbeen conducted in accordance with existing rules. In the absence orunavailability of an inquest prosecutor, the complaint may be filed by the

offended party or a peace officer directly with the proper court on the basis ofthe affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may askfor a preliminary investigation in accordance with this Rule, but he must sign awaiver of the provisions of Article 125 of the Revised Penal Code, as amended,in the presence of his counsel. Notwithstanding the waiver, he may apply forbail and the investigation must be terminated within fifteen (15) days from itsinception.

After the filing of the complaint or information in court without a

preliminary investigation, the accused may, within five (5) days from the timehe learns of its filing, ask for a preliminary investigation with the same right toadduce evidence in his defense as provided in this Rule.



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SEC. 7. When accused lawfully arrested without warrant.When aperson is lawfully arrested without a warrant involving an offense which

requires a preliminary investigation, the complaint or information may be filedby a prosecutor without need of such investigation provided an inquest has

been conducted in accordance with existing rules. In the absence or

unavailability of an inquest prosecutor, the complaint may be filed by theoffended party or a peace officer directly with the proper court on the basis ofthe affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may askfor a preliminary investigation in accordance with this Rule, but he must sign a

waiver of his right not to be detained beyond the period stated in Article 125 ofthe Revised Penal Code, as amended or other law. Notwithstanding the waiver,he may apply for bail and the investigation must be terminated within fifteen(15) days from execution of waiver. The suspect shall be released if theinvestigation is not terminated within the fifteen-day period.

Any waiver by a person arrested or detained under the provisions ofArticle 125 of the Revised Penal Code, or under custodial investigation, shall bein writing and signed by such person in the presence of his counsel; otherwisethe waiver shall be null and void and of no effect.

After the filing of the complaint or information in court without apreliminary investigation, the accused may, within five (5) days from the timehe learns of its filing, ask for a preliminary investigation with the same right toadduce evidence in his defense as provided in this Rule. Within the sameperiod, the private complainant with the conformity of the public prosecutor

may file motion for re-investigation to determine the necessity of amending theinformation or complaint to charge the accused with the proper crime.

When a person is lawfully arrested without a warrant involving anoffense which does not require a preliminary investigation, inquest is notrequired in filing of complaint or information in court, and a motion for

preliminary investigation after the filing thereof in court is prohibited.

EXPLANATORY NOTE

1. Waiver of right not to be detained beyond the period inThe phrase

a waiver of the provisions of Article125 of the Revised Penal Code, as amendedin the original version of Section 7, Rule 112 of the Rules of Criminal Procedureis replaced by the phrase a waiver of his right not to be detained beyond theperiod stated in Article 125 of the Revised Penal Code, as amended to make therule easily understandable.

2. Other law If person arrested is charged with or suspected ofterrorism or conspiracy to commit terrorism, and he arrest resulted from thesurveillance and examination of bank deposits of the terrorist suspect andAnti-Terrorism Council duly authorized in writing the officer in taking custodyof the terrorist suspect, the 12-18-36 hour period of allowable detention underArticle 125 of the Revised Penal Code is not applicable. What is applicable is 3-day period under Section 18 of RA No. 9372.

The proposed revision inserts the words other law in second paragraphof Section 7 to serve as a reminder that a law other than the Revised PenalCode may provide a different period within which the arrestee can be detainedprior to judicial delivery.


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2. Period of 15 day to resolve caseIf the person arrested executed avalid waiver, regular preliminary investigation instead of inquest proceeding

shall be conducted. He can be detained while the investigating prosecutor

conducts preliminary investigation. Since the suspect is under detention whilethe preliminary investigation is being conducted, the Section 7, Rule 112requires the immediate resolution of the case. Under the rules, the saidproceeding must be terminated within fifteen (15) days from its inception. Toprotect suspect, who is presumed innocent, against prolonged detention, theproposed revision requires his immediate release if the investigation is notterminated within the period. This is a message to the public prosecutor thatthe fifteen-day period to resolve preliminary investigation is mandatory.

3. Requirements of a waiver - Under Section 7, Rule 112, waiver ofprovision under Article 125 of the Penal Code must be made in the presence of

his counsel. However, RA No.7438, otherwise known as the CustodialInvestigation Law, provides as an additional requirement to make a waivervalid. Section 2 of this law states:

Section 2. x x x (e) Any waiver by a person arrested ordetained under the provisions of Article 125 of the Revised PenalCode, or under custodial investigation, shall be in writing andsigned by such person in the presence of his counsel; otherwise thewaiver shall be null and void and of no effect.

The proposed version adopts the requirements on such waiver under RA

No. 7438.

4. Right of private complainant to ask for re-investigation - InLaviste vs. Almeda, G.R. No. 182677, August 03, 2010, the Supreme Court

observes that once complaint or information is filed in court after inquest, theaccused is given opportunity to ask for a preliminary investigation within fivedays from the time he learns of its filing; however, the Rules of Court and theNew Rules on Inquest are silent, however, on whether the private complainantcould invoke a similar right to ask for a reinvestigation. Despite of such silence,the Court ruled that the private complainant, by counsel and with the

conformity of the public prosecutor, can file a motion for reinvestigation. In this

case, as a consequence of such reinvestigation, the information was amendedcharging the accused of murder instead of homicide.

The proposed version seeks to adopt the Laviste principle allowingprivate complainant to ask reinvestigation similar to the right given to theaccused, who was charged in court after being subjected to an inquest

proceeding.

5. Cases where preliminary investigation is not required - Section 7,Rule 112 fails to provide a regulation in case where the suspect is lawfullyarrested without a warrant involving an offense which does not require apreliminary investigation. Although it is a basic rule that inquest proceedingand motion for preliminary investigation under Section 7, Rule 112 are not

applicable if the crime of which the detainee was arrested does not requirepreliminary investigation, it would be better to expressly state this rule. This is

the basis of the last paragraph of the proposed revised version of Section 7,Rule112.


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PROPOSED INCORPORATION OF THE RULE ON HOLD-DEPARURE ORDER

RULE 112-AHOLD-DEPARTURE ORDER

Section 1. Issuing court - Hold-Departure Orders shall be issued only incriminal cases within the exclusive jurisdiction of the Regional Trial Courts.

Section 2. Furnishing copy of the order -The Regional Trial Courts issuing

the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA)

and the Bureau of Immigration (BI) of the Department of Justice with a copy

each of the Hold-Departure Order issued within twenty-four (24) hours from

the time of issuance and through the fastest available means of transmittal;

Section 3. Contents of hold-departure order - The Hold-Departure Order

shall contain the following information:

a. The complete name (including the middle name), the date and place of

birth and the place of last residence of the person against whom a Hold-

Departure Order has been issued or whose departure from the country has

been enjoined;

b. The complete title and the docket number of the case in which

the Hold-Departure Order was issued;

c. The specific nature of the case; and

d. The date of the Hold-Departure Order.

If available, a recent photograph of the person against whom a Hold-

Departure Order has been issued or whose departure from the country has

been enjoined should also be included.

Section 4. Effects of acquittal of accused or dismissal of case- Whenever

(a) the accused has been acquitted; (b) the case has been dismissed, the

judgment of acquittal or the order of dismissal shall include therein the

cancellation of the Hold-Departure Order issued. The courts concerned shallfurnish the Department of Foreign Affairs and the Bureau of Immigration with

a copy each of the judgment of acquittal promulgated or the order of dismissal

twenty-four (24) hours from the time of promulgation/issuance and through

the fastest available means of transmittal.

EXPLANATORY NOTE

As early as 1997, the Supreme Court issued Circular No. 39-

97 regulating the issuance of hold-departure order. Under this rule, only theRegional Trial Court can issue this order. However, despite this rule, several

judges of the first level courts are issuing hold-departure order in violation ofthe rule.

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


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245-MTC, December 05, 2001, RE: Hold-Departure Order issued by JudgeAgustin T. Sardido, MTC, Koronadal, South Cotobato in Criminal Case No.

19418; A.M. No. 99-12-192-MTC, January 26, 2000, Hold Departure Orderissued by Acting Judge Aniceto L. Madronio, Municipal Trial Court, Manaoag,

Pangasinan in Criminal Case No. 5275; A.M. No. 99-8-126-MTC, September

22, 1999, Issuance of Hold Departure Order of Judge Luisito T. Adaoag, MTC,Camiling, Tarlac; A.M. No. 00-1281-MTJ, September 14, 2000, RE: Hold-Departure Order dated August 9, 1999 issued by Judge Salvador B. Mendoza,MCTC, Poro-San Francisco-Tedela-Pilar, Poro, Cebu; A.M. No. 01-9-246-MCTC,October 09, 2001, RE: Hold Departure Order issued in Criminal Case No.2735, Office of the Court Adminstrator, Complainant vs. Judge Alipio M.Aragon, Acting Presiding Judge, Third Municipal Circuit Trial Court, Tumauini-Delfin Albano, Isabela, Respondent; A.M. No. 99-8-109-MCTC, August 25,1999, Hold Departure Order issued by Judge Eusebio M. Barot, MCTC, Branch2, Aparri, Calayay, Cagayan; A.M. No. 98-10-141-MTCC, November 18, 1998,

Re: Hold Departure Order dated April 13, 1998 issued by Judge Juan C.

Nartatez, Municipal Trial Court, Branch 3, Davao City; A.M. 99-9-141-MTCC,November 25, 1999; Hold Departure Order issued by Judge Felipe M. Abalos,MTCC-Branch 1, Dipolog City in Criminal Cases Nos. 15521 & 15522; A.M. No.MTJ-01-1351 (formerly OCA IPI No. 99-738-MTJ), January 27, 2004, Dr. John

M.W. Grieve vs. Judge Cornelio T. Jaca; A.M. No. RTJ-04-1885, OCA-IPI No.03-1687-RTJ, November 17, 2004, State Prosecutor Pablo Formaran III, Atty.Felino M. Ganal and Kanemitsu Yamaoka vs. Judge Marivic Trabajo-Daray,Regional Trial Court, Branch 36, General Santos City; A.M. No. RTJ-04-1850,July 14, 2004, Judge Lorinda T. Mupas vs. Judge Dolores L. Espaol, Regional

Trial Court, Branch 90, Dasmarias, Cavite; A.M. RTJ No. 03-1775, April 30,2003, Dr. Isagani A. Cruz vs. Judge Philbert I. Iturralde, Regional Trial Court,

Antipolo City, Branch 72; A.M. No. MTJ-01-1349, July 12, 2001, BernadetteMondejar vs. Judge Marino S. Buban, MTCC, Tacloban City Branch 1; A. M.No. RTJ-01-1635, September 17, 2002, Office of the Court Administrator vs.Judge Lucenito N. Tagle, Regional Trial Court, Branch 20, Imus, Cavite;

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

SECTIONS 7 AND 8, RULE 113

SEC. 7. Method of arrest by officer by virtue of warrant.When makingan arrest by virtue of a warrant, the officer shall inform the person to bearrested of the cause of the arrest and the fact that a warrant has been issued

for his arrest, except when he flees or forcibly resists before the officer hasopportunity to so inform him, or when the giving of such information will

imperil the arrest. The officer need not have the warrant in his possession atthe time of the arrest but after the arrest, if the person arrested so requires, thewarrant shall be shown to him as soon as practicable. (7a)

SEC. 8. Method of arrest by officer without warrant.When making an

arrest without a warrant, the officer shall inform the person to be arrested ofhis authority and the cause of the arrest, unless the latter is either engaged inthe commission of an offense, is pursued immediately after its commission, hasescaped, flees, or forcibly resists before the officer has opportunity to so informhim, or when the giving of such information will imperil the arrest. (8a)

PROPOSED REVISION


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SEC. 7. Method of arrest by officer by virtue of warrant.When makingan arrest by virtue of a warrant, the officer shall inform the person to be

arrested in a language known to and understood by him, of:(1) his rights toremain silent and to have competent and independent counsel, preferably of

his own choice; (2) his right to demand physical examination by an

independent and competent doctor of his own choice; and (3) the cause of thearrest and the fact that a warrant has been issued for his arrest, except whenhe flees or forcibly resists before the officer has opportunity to so inform him,or when the giving of such information will imperil the arrest. The officer need

not have the warrant in his possession at the time of the arrest but after thearrest, if the person arrested so requires, the warrant shall be shown to him assoon as practicable.

SEC. 8. Method of arrest by officer without warrant.When making anarrest without a warrant, the officer shall inform the person to be arrested in alanguage known to and understood by him of: (1) his rights to remain silent

and to have competent and independent counsel, preferably of his own choice;(2) his right to demand physical examination by an independent and competentdoctor of his own choice; and (3) his authority and the cause of the arrest,unless the latter is either engaged in the commission of an offense, is pursued

immediately after its commission, has escaped, flees, or forcibly resists beforethe officer has opportunity to so inform him, or when the giving of suchinformation will imperil the arrest. (8a)

EXPLANATORY NOTE

Under the 1973 and 1987 Constitutions, person under custodial

investigation has the right to be informed of his right to remain silent and tohave an independent counsel. This is an adoption of the ruling in the case ofMiranda vs. Arizaonarendered by US Supreme Court. Since this right is only

available to a person under custodial investigation, an arrestee is notimmediately entitled to it prior to police investigation or questioning

propounded to elicit incriminatory information from him. That is why underSections 7 and 8, Rule 113 of the Rules of Criminal Procedure, police officerhas no obligation to give Miranda warning to a person arrested. However, RA7438, otherwise known as Custodial Investigation Law, has expanded thescope of Miranda warning by imposing obligation to apprehending officer to give

such warning to a person arrested, even if he is not yet under custodial

investigation. Section 2 of RA No. 7439 provides:

"(b) Any public officer or employee, or anyone acting under hisorder or his place, who arrests, detains or investigates any personfor the commission of an offense shall inform the latter, in alanguage known to and understood by him, of his rights to remainsilent and to have competent and independent counsel, preferably ofhis own choice, who shall at all times be allowed to confer privatelywith the person arrested, detained or under custodial investigation.If such person cannot afford the services of his own counsel, hemust be provided with a competent and independent counsel by theinvestigating officer."

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

"Section 12.- Right to' Physical, Medical and Psychological

Examination. - Before and after interrogation, every person arrested,


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detained or under custodial investigation shall have the right to heinformed of his/her right to demand physical examination by an

independent and competent doctor of his/her own choice. If suchperson cannot afford the services of his/her own doctor, he/she

shall he provided by the State with a competent and independent

doctor to conduct physical examination. The State shall endeavor toprovide the victim with psychological evaluation if available underthe circumstances. If the person arrested is a female, she shall beattended to preferably by a female doctor. Furthermore, any personarrested, detained or under custodial investigation, includinghis/her immediate family, shall have the right to immediate accessto proper and adequate medical treatment. The physicalexamination and/or psychological evaluation of the victim shall becontained in a medical report, duly signed by the attendingphysician, which shall include in detail his/her medical history and

findings, and which shall he attached to the custodial investigation

report. Such report shall be considered a public document."

The proposed revision incorporates the mandate under RA No.7438 on the Mirandawarning and under RA No. 9745 on the right of the

person arrested to be informed of his right to demand physical examination.


SEC. 14. Right of attorney or relative to visit person arrested.Anymember of the Philippine Bar shall, at the request of the person arrested or of

another acting in his behalf, have the right to visit and confer privately withsuch person in the jail or any other place of custody at any hour of the day or

night. Subject to reasonable regulations, a relative of the person arrested canalso exercise the same right. (14a)

PROPOSED REVISION

SEC. 14. Right to visit person arrested.Any person arrested shall beallowed visits at any hour of the day or, in urgent cases, of the night by orconferences with any member of his immediate family, or any medical doctor orpriest or religious minister chosen by him or by any member of his immediate

family or by his counsel, or by any national non-governmental organizationduly accredited by the Commission on Human Rights of by any internationalnon-governmental organization duly accredited by the Office of the President.The person's "immediate family" shall include his or her spouse, fianc orfiance, parent or child, brother or sister, grandparent or grandchild, uncle oraunt, nephew or niece, and guardian or ward.

EXPLANATORY NOTE

The proposed revision is an implementation of the right to visit a personarrested under RA No. 7438, otherwise known as Custodial Investigation Law.

SECTION 2, RULE 114

SEC. 2. Conditions of the bail; requirements.All kinds of bail are subject

to the following conditions:


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(a) The undertaking shall be effective upon approval, and unlesscancelled, shall remain in form at all stages of the case until promulgation of

the judgment of the Regional Trial Court, irrespective of whether the case wasoriginally filed in or appealed to it;

(b) The accused shall appear before the proper court whenever requiredby the court or these Rules;

(c) The failure of the accused to appear at the trial without justificationand despite due notice shall be deemed a waiver of his right to be presentthereat. In such case, the trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for executionof the final execution.

The original papers shall state the full name and address of the accused,

the amount of the undertaking and the conditions required by this section.Photographs (passport size) taken within the last six (6) months showing theface, left and right profiles of the accused must be attached to the bail. (2a)

PROPOSED REVISION

SEC. 2. Conditions of the bail; requirements.All kinds of bail are subjectto the following conditions:

(a) The undertaking shall be effective upon approval, and unlesscancelled, shall remain in form at all stages of the case until promulgation of

the judgment of the Regional Trial Court, irrespective of whether the case wasoriginally filed in or appealed to it;

(b) The accused shall appear before the proper court whenever requiredby the court or these Rules;

(c) The failure of the accused to appear at the trial without justificationand despite due notice shall be deemed a waiver of his right to be presentthereat. In such case, the trial may proceed in absentia;

(d) The accused shall not transfer his residence without informing the

court. Neither shall he travel outside the country without permission from thecourt. The court may impose conditions for the travel of the accusedabroad; and

(e) The bondsman shall surrender the accused to the court for execution

of the final execution.

The court may impose other condition of bail if circumstances warrant it.

The original papers shall state the full name and address of the accused,the amount of the undertaking and the conditions required by this section.

Photographs (passportsize) taken within the last six (6) months showing theface, left and right profiles of the accused must be attached to the bail.

EXPLANATORY NOTE

There are occasions that the accused are waiving their right to appear atthe trial. Unless the rules or the court requires them to appear, the proceedings


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are being conducted without the presence of the accused because of suchwaiver. After a lengthy trial, the court may render a judgment of conviction only

to find out that the accused cannot anymore be located. The proposed revisionregarding restriction on the transfer of residence and travel abroad is intended

to secure that the accused is always within the reach of the court anytime his

appearance is needed. This rule is designed to detect at the early stage if theaccused is already hiding to evade criminal prosecution so that the court canimmediately tap the law enforcers to look for him.

The authority of the court to impose conditions for the travel of theaccused abroad under the proposed revision is in accordance with the cases ofMarcos vs. Sandiganbayan, G.R. Nos. 115132-34August 9, 1995, Manotoc vs.CA, G.R. No. L-62100, May 30, 1986 and Silverio vs.CA, G.R. No. 94284 April8, 1991 which have recognized the power of the court to restrict the right of theaccused to travel because of the condition imposed upon him when he postedbail, and that is to make himself available at all times whenever the court

requires his presence.

The power of the court to impose a condition not mentioned in the rulesis in accordance with the Almeda vs. Villaluz, G.R. No. L-31665 August 6, 1975,where it was stated:

As part of the power of the court over the person of theaccused and for the purpose of discouraging likely commission of

other crimes by a notorious defendant while on provisional liberty,

the latter could be required, as one of the conditions of his bail bond,

to report in person periodically to the court and make an accounting

of his movements.

SECTIONS 4 TO 7, RULE 114

SEC. 4. Bail, a matter of right; exception.All persons in custody shall beadmitted to bail as a matter of right, with sufficient sureties, or released onrecognizance as prescribed bylaw or this Rule (a) before or after conviction bythe Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court inCities, or Municipal Circuit Trial Court, and (b) before conviction by theRegional Trial Court ofan offense not punishable by death, reclusionperpetua, or life imprisonment. (4a)

SEC. 5. Bail, when discretionary.Upon conviction by the Regional TrialCourt of an offense not punishable by death, reclusion perpetua, or lifeimprisonment, admission to bail is discretionary. The application for bail maybe filed and acted upon by the trial court despite the filing of a notice of appeal,provided it has not transmitted the original record to the appellate court.However, if the decision of the trial court convicting the accused changed thenature of the offense from non-bailable to bailable, the application for bail canonly be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed tocontinue on provisional liberty during the pendency of the appeal under the

same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six(6) years, the accused shall be denied bail, or his bail shall be cancelled upon ashowing by the prosecution, with notice to the accused, of the following orother similar circumstances: (a) That he is a recidivist, quasi-recidivist, or


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habitual delinquent, or has committed the crime aggravated by thecircumstance of reiteration; (b) That he has previously escaped from legal

confinement, evaded sentence, or violated the conditions of his bail withoutvalid justification; (c) That he committed the offense while under probation,

parole, or conditional pardon; (d) That the circumstances of his case indicate

the probability of flight if released on bail; or (e) That there is undue risk thathe may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, reviewthe resolution of the Regional Trial Court after notice to the adverse party ineither case. (5a)

SEC. 6. Capital offense, defined.A capital offense is an offense which,

under the law existing at the time of its commission and of the application foradmission to bail, may be punished with death. (6a)

SEC. 7. Capital offense or an offense punishable by reclusion perpetua orlife imprisonment, not bailable.No person charged with a capital offense, oran offense punishable by reclusion perpetua or life imprisonment, shall beadmitted to bail when evidence of guilt is strong, regardless of the stage of thecriminal prosecution. (7a)

REVISED PROPOSED VERSION

SEC. 4. Bail, a matter of right. - All persons in custody shall be admittedto bail as a matter of right, with sufficient sureties, or released on recognizanceas prescribed by law or this Rule before or after conviction of a bailable offense

except as provided in Section 5 of this Rule. Bail is a matter of right even beforea person in custody is formally charged in court.

SEC. 5. Bail, a matter of discretion. - Upon conviction by the RegionalTrial Court of a bailable offense and the penalty imposed is imprisonmentexceeding six (6) years, admission to bail is discretionary. However, theaccused shall be denied bail, or his bail shall be cancelled upon a showing bythe prosecution, with notice to the accused, of the following or other similarcircumstances: (a) That he is a recidivist, quasi-recidivist, or habitualdelinquent, or has committed the crime aggravated by the circumstance ofreiteration; (b) That he has previously escaped from legal confinement, evaded

sentence, or violated the conditions of his bail without valid justification;(c) That he committed the offense while under probation, parole, or conditional

pardon; (d) That the circumstances of his case indicate the probability of flightif released on bail; or (e) That there is undue risk that he may commit anothercrime during the pendency of the appeal.

The application for bail may be filed and acted upon by the trial courtdespite the filing of a notice of appeal, provided it has not transmitted theoriginal record to the appellate court. However, if the decision of the trial court

convicting the accused changed the nature of the offense from non-bailable tobailable, the application for bail can only be filed with and resolved by theappellate court.

Should the court grant the application, the accused may be allowed tocontinue on provisional liberty during the pendency of the appeal under thesame bail subject to the consent of the bondsman.


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The appellate court may, motu proprio or on motion of any party, reviewthe resolution of the Regional Trial Court after notice to the adverse party in

either case.

SEC. 6. Non-bailable offense, defined.A non-bailable offense is an

offense where the penalty or a component thereof prescribed by the lawexisting at the time of its commission and of the application for admission tobail is death, reclusion perpetua or life imprisonment.

SEC. 7. Non-bailable offense.No person charged with a non-bailableoffense shall be admitted to bail when evidence of guilt is strong, regardless ofthe stage of the criminal prosecution.

When an accused is charged with a non-bailable offense and is out onbail and after trial is convicted by the trial court of the offense charged, hisbond shall be cancelled and the accused shall be placed in confinement

pending resolution of his appeal.

EXPLANATORY NOTE

1. Conviction of bailable offense by the court - Under Section 4, Rule114 of the Rules of Criminal Procedure, bail is a matter of right beforeconviction of bailable offense regardless of the court that renders it. Afterconviction,bail as matter of right or as a matter of discretion will depend onwhat court renders the conviction of the accused. If the conviction is renderedby the first level court, it is a matter of rightunder Section 4. If is rendered by

the Regional Trial Court, it is a matter of sound discretionunder first

paragraph of Section 5 or a matter of stringent discretion under the thirdparagraph thereof. In People vs. Laviste, G.R. No. 189122, March 17, 2010, itwas ruled:

In the first situation,bail is a matter of sound judicialdiscretion. This means that, if none of the circumstances mentionedin the third paragraph of Section 5, Rule 114 is present, theappellate court has the discretion to grant or deny bail. Anapplication for bail pending appeal may be denied even if the bail-negating circumstances in the third paragraph of Section 5, Rule 114

are absent. In other words, the appellate court's denial

of bail pending appeal where none of the said circumstances existsdoes not, by and of itself, constitute abuse of discretion.

On the other hand, in the second situation, the appellate court

exercises a more stringent discretion, that is, to carefully ascertainwhether any of the enumerated circumstances in fact exists. If it so

determines, it has no other option except to deny orrevoke bail pending appeal. Conversely, if the appellate courtgrants bail pending appeal, grave abuse of discretion will thereby

be committed.

2. Penalty of not exceeding 6 years imposed by Regional Trial Court- Bail is a matter of sound discretion if the conviction is made by the Regional

Trial Court even if the penalty is less than six (6) years of imprisonment (See:Remedial Law Compendium by Regalado). On the other hand, the rule on bailas matter of stringent discretion requires that the penalty imposed is morethan six (6) years of imprisonment.


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However, these rules may sometimes create an unfair situation. Forexample, if the accused is convicted by the Metropolitan Trial Court of

attempted homicide and sentenced him to suffer the penalty of 6 years ofprision correccional, bail is a matter of right. Under Section 4, bail is a matter

of right before or after conviction by the Metropolitan Trial Court. But if the

accused was incorrectly charged with frustrated homicide, and the RegionalTrial Court convicted him of attempted homicide and sentenced him to sufferthe penalty of 6 years of prision correccional, bail is a matter of sounddiscretion under Section 5. In sum, since the accused was convicted by theRegional Trial Court, bail is not a matter of right. In this situation, the accusedis made to suffer the consequence of the mistake committed by the publicprosecutor in charging him with frustrated homicide, which is cognizable bythe Regional Trial Court, instead of attempted homicide, which is cognizable bythe inferior court.

Under proposed revision, the rules on bail under Section 5, whether as a

matter of sound discretion or stringent discretion, applies to situation wherethe penalty imposed by the Regional Trial Court upon conviction of the accusedis an imprisonment exceeding six years. In other words, if the penalty imposedis less than 6 years of imprisonment, bail is a matter of right whether theconviction is rendered by the first level court or Regional Trial Court becausethe applicable rule is Section 4, which provides that bail is a matter of right

except in those cases provided in Section 5

3. No formal charge - In Ocampo vs. Bernabe, G.R. No. L-439, August20, 1946, the Supreme Court ruled that bail is a matter of right, whether theaccused is charged or not yet charged in court. The last sentence of the

proposed Section 4 adopts this ruling.

4. Non-bailable offense - Under the 1940 Rules of Criminal Procedure,capital offense is non-bailable while non-capital offense is bailable. That is why

it provided a definition of capital offense to simply the rules on bailable andnon-bailable offenses. The provisions on capital offenses are still found in thepresent Rules of Criminal Procedure. However, under the present proceduralset up, non-bailable offense is not limited to capital offense but it includesoffense punishable by reclusion perpetua or life imprisonment. To simplify the

rules on bailable and non-bailable offenses, the proposed revision replaces theprovisions on capital offense with those on non-bailable offense.

5. Death penalty - Under Section 6 of the proposed revised rules, non-

bailable offense includes an offense where the penalty prescribed by law isdeath penalty. Although RA 9346 prohibits the imposition of death penalty, itdid not alter the penalty for heinous crimes. It merely automatically reducesdeath penalty to reclusion perpetua or life imprisonment. Thus, for purposes ofdetermining the bailability or non-bailability of an offense, the penalt

Documents

Proposed Revision on the Rules of Criminal Procedure Feb 5 (1)