CRIMINAL PROCEDURE AND COURT TESTIMONY

Module 1B
Atty. Katherine P. Atienza

RULE 113: ARREST 3. Escapes or flees, or forcibly

resists before the officer has
Arrest is the taking of a person into custody in order that opportunity to so inform him, or
he may be bound to answer for the commission of an when the giving of such
offense. (Rule 113, Sec. 1) information will imperil the
arrest. (Rule 113, Sec. 8)
How Made: By a Private He shall inform the person to be
1. By an actual restraint of a person to be arrested; Person arrested of the intention to
2. the submission of the accused to the custody of arrest him and the cause of the
the person making the arrest. (Rule 113, Sec. arrest unless the latter is either:
2) voluntary surrender 1. Engaged in the commission
of an offense;
Lawful Arrests without a Warrant: 2. Is pursued immediately after
1. When, in his presence, the person to be its commission; or
arrested has committed, is actually committing, 3. Escapes or flees, or forcibly
or is attempting to commit an offense; resists before the officer has
2. When an offense has in fact just been opportunity to so inform him, or
committed, and he has probable cause to when the giving of such
believe based on his personal knowledge of the information will imperil the
facts and circumstances that the person to be arrest. (Rule 113, Sec. 9)
arrested has committed the crime;
3. When the person to be arrested is a prisoner Requisites of a Valid Warrant Arrest
who has escaped from a penal establishment 1. It shall be issued upon probable cause which
or a place where he is serving final judgment or must be personally determined by a judge after
temporarily confined while his case is pending, evaluating the resolution of the prosecutor and
or has escaped while being transferred from its supporting documents; and
one confinement to another. (Rule 113, Sec. 5) 2. The warrant must particularly describe the
4. Where a person who has been lawfully arrested person to be arrested in connection with a
escapes or is rescued. (Rule 113, Sec. 13) specific offense of crime. (Article III, Sec. 2)
5. When the bondsman arrests a prisoner out on
bail for the purpose of bringing him to the court; Procedure for the issuance of a warrant of arrest:
6. Where the accused attempts to leave the 1. Within 10 days from the filing of the complaint or
country without the permission of the court. information, the judge shall personally evaluate the
(Rule 114, Sec. 23) resolution of the prosecutor and its supporting evidence.
2. He may immediately dismiss the case if the evidence
Methods of Arrest: on record clearly fails to establish probable cause.
3. If he finds probable cause, he shall issue a warrant of
By an officer with The officer shall inform the arrest, or a commitment order when the complaint or
a Warrant person to be arrested of the information was filed pursuant to a lawful warrantless
cause of the arrest and the fact arrest.
that a warrant has been issued 4. If case of doubt on the existence of probable cause,
for his arrest except when he the judge may order the prosecutor to present additional
flees or forcible resists before evidence within 5 days from notice and the issue must
the officer has opportunity to so be resolved by the court within 30 days from the filing of
inform him, or when the giving of the complaint or information. (Rule 112, Sec. 5)
such information will imperil the
arrest. The officer need not have Probable Cause for Warrant of Arrest → for the
the warrant in his possession at purpose of the warrant of arrest, probable cause is
the time of the arrest, if the defined as such facts and circumstances which would
person arrested requires, the lead a reasonably discreet and prudent man to believe
warrant shall be shown to him that an offense has been committed by the person
as soon as practicable. (Rule sought to be arrested.
113, Sec. 7)
By an Officer The officer shall inform the Jurisprudence holds that an arrest without probable
without a Warrant person to be arrested of his cause is an unreasonable seizure of a person, and
authority and the cause of the violates the privacy of persons, which ought not to be
arrest unless the latter is either: intruded by the State. Hence, the existence of probable
1. Engaged in the commission cause is a vital element to the validity of a warrant of
of an offense; arrest.
2. Is pursued immediately after
its commission; or
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Atty. Katherine P. Atienza

arresting officer has reasonable belief that the person

Types of Probable Cause being arrested may be harmful or is capable of harming
Preliminary pertains to the facts and the arresting officer, then based on the best discretion
Investigation circumstances sufficient to of the arresting officer, forms of restraints such as the
support a well-founded belief that handcuffs may be applied accordingly.
a crime has been committed and
the accused is probably guilty Section 3. Duty of arresting officer. — It shall be the
thereof duty of the officer executing the warrant to arrest the
Issuance of Such facts and circumstances accused and to deliver him to the nearest police
Warrant of which would lead a reasonably station or jail without unnecessary delay. (3a)
Arrest discreet and prudent man to
believe that an offense has been Duties of an arresting officer:
committed by the person sought
to be arrested. 1. The person arrested, detained, invited or under
Warrantless a reasonable ground of suspicion custodial investigation must be informed in a
Arrest supported by circumstances language known to and understood by him of
sufficiently strong in themselves the reason for the arrest, and he must be shown
to warrant a cautious man’s belief the warrant of arrest if any, every other
that the person accused is guilty warnings information or communication must
of the offense with which he is be in a language known to and understood by
charged said person. Take note, however, that under the
Search Warrant such facts and circumstances last sentence of Section 7 of Rule 113, the
which would lead a reasonably officer need not have the warrant in his
discreet and prudent man to possession at the time of the arrest, but after
believe that an offense has been the arrest if the person arrested so requires the
committed and that the object warrant shall be shown to him as soon as
sought in the connection with the practicable. Under the first guideline, if the
offense are in the place sought to arresting officer has in his custody the warrant
be searched. of arrest then, when the arresting officer
explains to the person being arrested the
Voluntary surrender or voluntary submission into reason for his arrest, he can already show the
the custody of the person or persons tasked to effect the warrant of arrest. But if, for example, it is not in
arrest may be considered a mitigating circumstance if his custody as of the moment of the arrest then,
you refer back to your Revised Penal Code. Section 7 of Rule 113 will apply.
2. He must be warned that he has the right to
Section 2. Arrest; how made. — An arrest is made remain silent, and that any statement he makes
by an actual restraint of a person to be arrested, or may be used as evidence against him.
by his submission to the custody of the person 3. He must be informed that he has the right to be
making the arrest. assisted at all times and have the presence of
an independent and competent lawyer
No violence or unnecessary force shall be used in preferably of his own choice.
making an arrest. The person arrested shall not be 4. He must be informed that if he has no lawyer or
subject to a greater restraint than is necessary for his cannot afford the services of a lawyer, one will
detention. (2a) be provided for him, and that a lawyer may also
be engaged by any person in his behalf, or may
Unnecessary Violence: be appointed by the court upon petition of the
General Rule → no violence or unnecessary force shall person arrested, or one acting in his behalf.
be used in making an arrest and the person arrested 5. That whether or not the person arrested has a
shall not be subject to a greater restraint and is lawyer, he must be informed that no custodial
necessary for his detention. investigation in any form shall be conducted
except in the presence of his counsel, or after a
Exception → in some instances when the person to be valid waiver has been made. Take note that the
arrested, after going through the motions or the waiver of the right to be represented by counsel
procedures of the arrest, do not evade the arrest or is must be in writing and must be signed in the
willing to be taken into custody there is actually no presence of counsel.
necessity to handcuff the person being arrested. 6. The person arrested must be informed that at
any time he has a right to communicate or
Exception to the exception → if there is a violent confer by the most expedient means -
exchange or if the person being arrested is resisting or telephone, radio, letter or messenger - with his
is trying to evade, or that the police officer or the lawyer, either retained or appointed, any
member of his immediate family, or any medical
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Atty. Katherine P. Atienza

doctor, priest or minister chosen by him or by his failure to execute the warrant, he shall state the
anyone from his immediate family or by his reasons therefor. (4a)
counsel, or be visited by, or confer with duly
accredited national or international non There is no time period. A warrant of arrest is valid until
government organization. It shall be the the arrest is effected or until it is lifted. The head of the
responsibility of the officer to ensure that this is office to whom the warrant was delivered must cause it
accomplished. to be executed within 10 days from its receipt, and the
7. He must be informed that he has the right to officer to whom it is assigned for execution must make
waive any of the said rights provided it is made a report to the judge who issued it within 10 days from
voluntarily, knowingly, and intelligently and the expiration of the period. If he fails to execute if he
ensure that he understood the same. should state the reasons therefor.
8. In addition, if the person arrested waives his
right to a lawyer, he must be informed that it Section 5. Arrest without warrant; when lawful. — A
must be done in writing and in the presence of peace officer or a private person may, without a
counsel, otherwise, he must be warned that the warrant, arrest a person:
waiver is void even if he insists on his waiver (a) When, in his presence, the person to be arrested
and chooses to speak. has committed, is actually committing, or is
9. The person arrested must be informed that he attempting to commit an offense;
may indicate in any manner at any time or stage (b) When an offense has just been committed, and
of the process that he does not wish to be he has probable cause to believe based on personal
questioned with warning, that once he makes knowledge of facts or circumstances that the person
such indication that indication, the police may to be arrested has committed it; and
not interrogate him if the same had not yet (c) When the person to be arrested is a prisoner who
commenced, or the interrogation must cease if has escaped from a penal establishment or place
it has already begun. where he is serving final judgment or is temporarily
10. The person arrested must be informed that his confined while his case is pending, or has escaped
initial waiver of his right to remain silent, the while being transferred from one confinement to
right to counsel or any of his rights does not bar another.
him from invoking it at any time during the In cases falling under paragraph (a) and (b) above,
process, regardless of whether he may have the person arrested without a warrant shall be
answered some questions or volunteered some forthwith delivered to the nearest police station or jail
statements. and shall be proceeded against in accordance with
11. He must also be informed that any statement or section 7 of Rule 112. (5a)
evidence, as the case may be, obtained in
violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part, Warrantless arrest is a seizure of person without a
shall be inadmissible in evidence. warrant but based on probable cause that he has
committed a felony or has escaped from confinement.
Criminal liability for violating this provision →
“Art. 125, RPC: Delay in the delivery of detained Elements of Inflagrante Delicto:
persons to the proper judicial authorities.” – The 1) The person to be arrested must execute an overt act
penalties provided in the next preceding article shall be indicating that he has just committed, is actually
imposed upon the public officer or employee who shall committing, or is attempting to commit a crime; and
detain any person for some legal ground and shall fail 2) Such overt act is done in the presence or within the
to deliver such person to the proper judicial authorities view of the arresting officer or private person
within the period of: twelve (12) hours, for crimes or
offenses punishable by light penalties, or their ➔ It must be stressed that the presence not only
equivalent; eighteen (18) hours, for crimes or offenses requires that the arresting person sees the
punishable by correctional penalties, or their equivalent; offense, but also when he hears the disturbance
and thirty-six (36) hours, for crimes or offenses created thereby and proceeds at once to the
punishable by afflictive or capital penalties, or their scene.
equivalent.
CASE: People vs. Aminnudin (GR No. 74869, July
Section 4. Execution of warrant. — The head of the 06, 1988)
office to whom the warrant of arrest was delivered for
execution shall cause the warrant to be executed Facts: Idel Aminnudin was arrested after disembarking
within ten (10) days from its receipt. Within ten (10) from the M/V Wilcon 9 in Iloilo City. The PC officers who
days after the expiration of the period, the officer to were in fact waiting for him accosted him, inspected his
whom it was assigned for execution shall make a bag and finding what looked like marijuana leaves, took
report to the judge who issued the warrant. In case of him to their headquarters for investigation. The two
bundles of suspect articles were confiscated and tested
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by the NBI laboratory. They were verified to be 3 kilos

worth of marijuana leaves. An information for violation The constitutional presumption is that he is innocent,
of the Dangerous Drugs Act was filed against and he will be so declared even if his defense is weak
him. Accused-appellant was eventually convicted. as long as the prosecution is not strong enough to
convict him.
According to the prosecution, the PC officers had earlier
received a tip from one of their informers naming Without the evidence of the marijuana allegedly seized
accused-appellant and adding that he was on board from Aminnudin, the case of the prosecution must
said vessel, and was carrying marijuana. The PC waited fall. That evidence cannot be admitted. The marijuana
for him and approached him as he descended after the was seized illegally. It is the fruit of the poisonous
informer had pointed to him. tree. The search was not an incident of a lawful
arrest because there was no warrant of arrest and
Aminnudin disclaimed the marijuana. He alleged that he the warrantless arrest did not come under the
was arbitrarily arrested and immediately handcuffed. exceptions allowed by the Rules of Court. Hence,
His bag was confiscated without a search warrant. At the warrantless search was also illegal and the
the PC headquarters, he was manhandled to force him evidence obtained thereby was inadmissible.
to admit. He insisted he did not even know what
marijuana looked like and that his business was selling With the exclusion of the illegally seized marijuana as
watches and sometimes cigarettes. He also argued that evidence against the accused-appellant, his guilt has
the marijuana he was alleged to have been carrying was not been proved beyond reasonable doubt and he must
not properly identified and could have been any of therefore be discharged on the presumption that he is
several bundles kept in the stock room of the PC innocent.
headquarters.
CASE: PEOPLE VS. COLLADO
The trial court was unconvinced. Hence, this petition.
Facts:
Issue: PO2 Noble received information from a civilian
1. Whether or not the arrest was legal asset that spouses Marcelino and Myra were
engaged in selling shabu and that drug users,
Ruling:
It is admitted by the PC officers who testified for the including out-of-school youth, were using their
prosecution, that they had no warrant when they residence in 32 R. Hernandez St., San Joaquin,
arrested Aminnudin and seized the bag he was carrying. Pasig City, for their drug sessions. A buy-bust
Their only justification was the tip they had earlier operation team was thereafter formed. The asset
received from a reliable and regular informer who introduced PO2 Noble to Marcelino as a regular
reported to them that Aminnudin was arriving in Iloilo by buyer of shabu. Myra accepted the money.
boat with marijuana. Marcelino then took from his pocket a small metal
container from which he brought out a small plastic
There was no warrant of arrest or search warrant issued sachet containing white crystalline substance and
by a judge after personal determination by him of the
gave it to PO2 Noble.
existence of probable cause. The accused-appellant
was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the Meanwhile, SPO2 Cruz and another police officer
warrantless arrest allowed under Rule 113 of the Rules went inside the house of Marcelino and Myra,
of Court. Even expediency could not be invoked to where they found Apelo, Cipriano, Ranada,
dispense with the obtention of the warrant. The present Abache, Sumulong, Madarang and Latario
case presented no urgency to apply the ruling that gathered around a table littered with various drug
vessels and aircraft are subject to warrantless searches paraphernalia such as an improvised water pipe,
and seizures for violation of the customs law because strips of aluminum foil with traces of white
these vehicles may be quickly moved out of the locality substance, disposable lighters, and plastic
or jurisdiction before the warrant can be secured.
sachets. A strip of aluminum foil used for smoking
From the conflicting declarations of the PC witnesses, it marijuana was recovered from Ranada.
is clear that they had at least two days within which they RTC found Marcelino and Myra guilty of Secs. 5,
could have obtained a warrant to arrest and search 6, and 11 of RA 9165. Apelo, Cipriano, Ranada,
Aminnudin who was coming to Iloilo on the M/V Wilcon Abache, Sumulong, Madarang and Latario are
9. From the information they had received, they could guilty of Sec. 14 of RA 9165. CA affirmed the
have persuaded a judge that there was probable cause, decision with modification that Apelo, Abache,
indeed, to justify the issuance of a warrant. Yet they did Sumulong, and Madarang are accessories, not
nothing. No effort was made to comply with the law. The principals.
Bill of Rights was ignored altogether.
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charged originates in the mind of the accused, and

Issue: Was the arrest valid? law enforcement officials merely facilitate the
apprehension of the criminal by employing ruses
Ruling: The arrest of the appellants was an arrest and schemes; thus, the accused cannot justify his
in flagrante delicto made in pursuance of Sec. 5(a), or her conduct. In instigation, where law enforcers
Rule 113 of the Rules of Court. The arrest was act as co-principals, the accused will have to be
effected after Marcelino and Myra performed the acquitted. But entrapment cannot bar prosecution
overt act of selling to PO2 Noble the sachet of and conviction. As has been said, instigation is a
shabu and Ranada of having in his control and “trap for the unwary innocent,” while entrapment is
custody illegal drug paraphernalia. a “trap for the unwary criminal.”
As a general rule, a buy-bust operation,
As for the specimen, the failure of the police considered as a form of entrapment, is a valid
officers to inventory and photograph the means of arresting violators of Republic Act No.
confiscated items are not fatal to the prosecution's 9165. It is an effective way of apprehending law
cause, provided that the integrity and evidentiary offenders in the act of committing a crime. In a buy-
value of the seized substance were preserved, as bust operation, the idea to commit a crime
in this case. originates from the offender, without anybody
inducing or prodding him to commit the offense.
In Rañada’s case, he was actually caught having
custody and control of the confiscated drug Hot Pursuit Arrest:
paraphenalia intended for smoking, injecting, etc. A peace officer or private person may, without
into one's body. It was also indubitably shown that warrant, arrest a person when an offense has just
he failed to present authority to possess the been committed, and he has probable cause to
prohibited articles, much less, an explanation of his believe, based on personal knowledge of facts or
possession thereof. However, as regards the other circumstances that the person to be arrested has
accused who were seen in the company of committed it.
Rañada, the evidence of conspiracy against them
was insufficient. They were in close proximity to Two conditions
Rañada at the time and place of the incident. But 1) the person to be arrested must have just
mere presence at the scene of the crime does not committed an offense; and
imply conspiracy. The prosecution failed to show 2) the arresting peace officer or private person has
specific overt acts that would link these accused to probable cause to believe, based on personal
Ranada's possession of the said contrabands. knowledge of facts or circumstances that the
person to be arrested is the one who committed
Entrapment vs. Instigation: the offense.

A buy-bust operation has been recognized in this

jurisdiction as a legitimate form of entrapment of
the culprit. It is distinct from instigation, in that the
accused who is otherwise not predisposed to
commit the crime is enticed or lured or talked into
committing the crime. While entrapment is legal,
instigation is not.

Instigation is the means by which the accused is

lured into the commission of the offense charged
in order to prosecute him. On the other hand,
entrapment is the employment of such ways and
means for the purpose of trapping or capturing a
lawbreaker. Thus, in instigation, officers of the law
or their agents incite, induce, instigate or lure an
accused into committing an offense which he or
she would otherwise not commit and has no
intention of committing. But in entrapment, the
criminal intent or design to commit the offense
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Ruling: The SC held that although the policemen

who apprehended petitioner were not at the scene
of the hit and run, such fact did not affect the
propriety of the apprehension. It was in fact the
most prudent action Manarang could have taken
rather than collaring petitioner himself in as much
as policemen are better trained in performing an
arrest of suspects who, in this case is Robin
Padilla. Petitioner could have put up a degree of
resistance which an untrained civilian could not
contain without putting himself in danger. In that
case, there was a valid arrest in hot pursuit
because the witness to the hit and run informed the
police officers of the plate number of the car which
caused the hit and run, thus, the policemen called
went after the said vehicle. When the vehicle was
cornered, Robin Padilla alighted. Therefore, there
were crucial facts and circumstances that would
lead a prudent man to believe that the hit and run
was committed by person driving the vehicle who
is probably guilty of committing the crime.
CASE: PADILLA VS. CA
Arrest of Escaped Prisoners
Facts:
Petitioner Robin Padilla figured in a hit and run When the person to be arrested is a prisoner who
accident with a Mitsubishi Pajero. The incident was has
witnessed by Manarang, a member of a civic 1. escaped from a penal establishment or
group. Manarang rode this motorcycle and chased place where he is serving final judgment or
the petitioner. It was able to make out the plate is temporarily confined while his case is
number, PMA 777. He called the Viper through the pending, or
radio, which flashed the message to all units of 2. has escaped while being transferred from
PNP Angeles City. PNP mobile patrols responded one confinement to another
to the call and at Abacan Bridge Manarang found 3. An accused who files a fake bail bond is
mobile three with SPO 2 Borja and SPO 2 Miranda. considered not merely to have jumped bail
He informed them about the hit and run incident but for all intents and purposes, to have
and he returned to where he came from until he escaped from detention, thus, such
saw the vehicle that figured in the incident, and he accused may be rearrested without
followed it. Soon the vehicle was within sight of warrant.
SPO 2 Borja and Miranda of Mobile No. 3. They
rode their mobile car and cut into the path of the Revised Rule of Criminal Procedure
vehicle forcing it to stop. 1. An accused released on bail may be re-
arrested without a necessity of a warrant if
The police officer requested petitioner to alight the he attempts to depart from the Philippines
vehicle. When he alighted with his hands raised, a without permission of the court where the
gun tucked in the left of his waist was revealed. case is pending.
The gun was confiscated and his car was searched 2. For the purpose of surrendering the
for weapons which turned out to contain firearms accused the bondsman may arrest him, or
and ammunitions of assorted caliber. Petitioner upon written authority endorsed on a
insisted that his arrest was illegal, arguing that the certified copy of the undertaking, cause him
arresting officer were not at the scene of the hit and to be arrested by a police officer or any
run. other person of suitable age and discretion.
(Section 23 of rule 114)
Issue: Was the arrest valid? 3. 3) If a person lawfully arrested escapes or
is rescued, any person may immediately
pursue or take him without a warrant at any
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time and in any place within the Philippines

(Section 13 of Rule 113). Section 10. Officer may summon assistance. —
An officer making a lawful arrest may orally
Section 6. Time of making arrest. – An arrest summon as many persons as he deems
may be made on any day and at any time of the necessary to assist him in effecting the arrest.
day or night. Every person so summoned by an officer shall
assist him in effecting the arrest when he can
Section 7. Method of arrest by officer by virtue of render such assistance without detriment to
warrant. – When making an arrest by virtue of a himself.
warrant, the officer shall inform the person to be
arrested of the cause of the arrest and the fact
that a warrant has been issued for his arrest,
except when he flees or forcibly resists before
the officer has opportunity to so inform him, or
when the giving of such information will imperil
the arrest. The officer need not have the warrant
in his possession at the time of the arrest but
after the arrest, if the person arrested so
requires, the warrant shall be shown to him as
soon as practicable.

General Rule:
When making an arrest by virtue of a warrant, the
officer shall inform the person to be arrested of the
1) cause of the arrest and 2) the fact that a warrant
has been issued for his arrest

Exception:
1. When the accused flees or forcibly resist
before the officer has opportunity to inform In relation to Art 149 All persons who come to the
him aid of agents of authority and also all public
2. when the giving of such information will functionaries are entitled to be considered as
imperil the arrest Critical area siya nadakpan agents of authority. It being understood
nevertheless that in order that the person who
Sec. 8. Method of arrest by officer without comes to the aid of agents of authority may be
warrant. – When making an arrest without a considered as agents of authority, it is essential
warrant, the officer shall inform the person to be condition that they lend assistance by virtue of an
arrested of his authority and the cause of the order or request of such agent of authority.
arrest, unless the latter is either engaged in the Accordingly, these persons are given the
commission of an offense, is pursued protection of Article 149 of the Revised Penal Code
immediately after its commission, has escaped, wherein if attacked, the offender will be liable for
flees, or forcibly resists before the officer has indirect assault.
opportunity to so inform him, or when the giving
of such information will imperil the arrest. Section 11. Right of officer to break into building
or enclosure. — An officer, in order to make an
Section. 9. Method of arrest by private person. – arrest either by virtue of a warrant, or without a
When making an arrest, a private person shall warrant as provided in Section 5, may break into
inform the person to be arrested of the intention any building or enclosure where the person to be
to arrest him and the cause of the arrest, unless arrested is or is reasonably believed to be, if he
the latter is either engaged in the commission of is refused admittance thereto, after announcing
an offense, is pursued immediately after its his authority and purpose.
commission, or has escaped, flees, or forcibly
resists before the person making the arrest has Section 12. Right to break out from building or
opportunity to so inform him, or when the giving enclosure. — Whenever an officer has entered
of such information will imperil the arrest the building or enclosure in accordance with the

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preceding section, he may break out therefrom INQUEST PROCEEDINGS

when necessary to liberate himself.
Applies only in cases where the accused was
An officer can break into a building or enclosure if: lawfully arrested without warrant of arrest under
1) He has announced his authority to affect the Section 5 Rule 113 of the Revised Rules of
arrest Criminal Procedure. Where the records do not
2) He has announced his purpose in making the show that the accused was lawfully arrested, this
arrest rule does not apply.
3) He is refused admittance after the foregoing
announcements Under DOJ Circular No. 61, dated September 21
1993, the initial duty of the inquest officer is to
Section 13. Arrest after escape or rescue. – If a determine if the arrest of the detained person was
person lawfully arrested escaped or is rescued, made in accordance with the provisions of
any person may immediately pursue or if they paragraphs A and B of Section 5 of rule 113.
take him without a warrant at any time in any
place within the Philippines. 2017 Revised Manual for Prosecutors, Section
3.1.1. Concept — An inquest proceeding is an
The situation here is, this is no longer in flagrante informal and summary investigation conducted by
delicto arrest or hot pursuit arrest or arrest of an a public prosecutor in criminal cases involving
escapee already in jail. There's no need to apply persons arrested and detained without the benefit
for another warrant of arrest just to re-arrest that of a warrant of arrest issued by the court for the
person validly arrested. purpose of determining whether or not these
persons should remain under custody and
Section 14. Right of attorney or relative to visit correspondingly be charged in court.
person arrested. — Any member of the
Philippine Bar shall, at the request of the person General Rule: the inquest proceedings must be
arrested or of another acting in his behalf, have terminated within the period prescribed, which will
the right to visit and confer privately with such be counted from the time the arrest under the
person in the jail or any other place of custody at provisions of Article 125 of the Revised Penal
any hour of the day or night. Subject to Code
reasonable regulations, a relative of the person
arrested can also exercise the same right. Exception: When there is a waiver for the purpose
of preliminary investigation
Privilege from arrest:
1. Under Section 11, Article VI of the 1987 RULE 112: PRELIMINARY INVESTIGATION
constitution, a senator or a member of the
House of Representatives shall, in all
offenses punishable by not more than six Section 1. Preliminary investigation defined;
years imprisonment, be privileged from when required. — Preliminary investigation is an
arrest when the Congress is in session. inquiry or proceeding to determine whether
there is sufficient ground to engender a well-
➔ Does not apply 1) when not in session 2) founded belief that a crime has been committed
When the offense is punishable more than and the respondent is probably guilty thereof,
six years even if Congress is in session and should be held for trial. Except as provided
in section 7 of this Rule, a preliminary
2. Other exempt Sovereigns and other Chiefs investigation is required to be conducted before
of State, ambassadors, ministers the filing of a complaint or information for an
plenipotentiary, ministers resident in offense where the penalty prescribed by law is
charge of the affairs are immune from the at least four (4) years, two (2) months and one
criminal jurisdiction of the country of their (1) day without regard to the fine. (1a)
assignment and are therefore immune from
arrest. Nature:
➔ Executive in function
➔ Function belongs to the public prosecutor
➔ Substantive rights
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Atty. Katherine P. Atienza

➔ A personal right and can be waived

expressly or impliedly

Purposes of Preliminary Investigation:

1. To inquire concerning the commission of a
crime and the connection of the accused
with it, in order that he may be informed of
the nature and character of the crime
charged against him, and if there is
probable cause, for believing him guilty that
the state shall take the necessary steps to
bring him to trial;
2. B. To preserve the evidence and keep the
witnesses within the control of the state and
to determine the amount of bail if the
offense is bailable

“Probable cause” pertains to the facts and

circumstances sufficient to support a well-founded
belief that a crime has been committed and the
accused is probably guilty thereof.

RIGHT OF PRELIMINARY INVESTIGATION

1) Not a constitutional right 2) Waivable

FUNCTION OF PUBLIC PROSECUTOR What are the offenses requiring preliminary

1. The preliminary investigation by a public investigation?
prosecutor is not the stage to decide ➔ Under paragraph 2 of Section 1, except
whether there is evidence beyond when the accused was lawfully arrested
reasonable doubt of the guilt of the person without a warrant, a preliminary
charged. investigation is required to be conducted
2. The main function of the government before the filing of the complaint or
prosecutor during the preliminary information for an offense when the penalty
investigation is merely to determine the prescribed by law is at least 4 years, 2
existence of probable cause and to file the months and 1 day without regard to fine. a
corresponding information if he finds it to public prosecutor needs to look at the
be so. prescribed penalty, which is the penalty
3. if there is no probable cause, not enough indicated by the law for the crime and not
evidence to support the probability of guilt, the imposable penalty which refers to that
then it is the duty of an investigating penalty to be imposed on the accused after
prosecutor to dismiss the case to protect an considering the evidence and attendant
innocent from a hasty, expensive and modifying circumstances in the case.
useless criminal trial.
Preliminary investigation not required:
1. When the accused was lawfully arrested
without a warrant and he does not ask for a
preliminary investigation, this is called an
inquest case.
2. When the penalty prescribed for the
offense charged does not exceed 4 years 2
months (and 1 day?), the cases falling
under this category has been called as
direct filing cases.

Section 2. Officers authorized to conduct

preliminary investigations. — The following may
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Atty. Katherine P. Atienza

conduct preliminary investigations: (a) Provincial relied upon for his defense. The counter-
or City Prosecutors and their assistants; (b) affidavits shall be subscribed and sworn to and
Judges of the Municipal Trial Courts and certified as provided in paragraph (a) of this
Municipal Circuit Trial Courts; (c) National and section, with copies thereof furnished by him to
Regional State Prosecutors; and (d) Other the complainant. The respondent shall not be
officers as may be authorized by law. allowed to file a motion to dismiss in lieu of a
counter-affidavit.
Their authority to conduct preliminary
investigations shall include all crimes cognizable (d) If the respondent cannot be subpoenaed, or
by the proper court in their respective territorial if subpoenaed, does not submit counter-
jurisdictions. (2a) affidavits within the ten (10) day period, the
investigating officer shall resolve the complaint
Section 3. Procedure. — The preliminary based on the evidence presented by the
investigation shall be conducted in the following complainant.
manner:
(a) The complaint shall state the address of the (e) The investigating officer may set a hearing if
respondent and shall be accompanied by the there are facts and issues to be clarified from a
affidavits of the complainant and his witnesses, party or a witness. The parties can be present at
as well as other supporting documents to the hearing but without the right to examine or
establish probable cause. They shall be in such cross-examine. They may, however, submit to
number of copies as there are respondents, plus the investigating officer questions which may be
two (2) copies for the official file. The affidavits asked to the party or witness concerned. The
shall be subscribed and sworn to before any hearing shall be held within ten (10) days from
prosecutor or government official authorized to submission of the counter-affidavits and other
administer oath, or, in their absence or documents or from the expiration of the period
unavailability, before a notary public, each of for their submission. It shall be terminated within
who must certify that he personally examined five (5) days.
the affiants and that he is satisfied that they
voluntarily executed and understood their (f) Within ten (10) days after the investigation,
affidavits. the investigating officer shall determine whether
or not there is sufficient ground to hold the
(b) Within ten (10) days after the filing of the respondent for trial. (3a)
complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with
the investigation, or issue a subpoena to the SUMMARY
respondent attaching to it a copy of the ➔ The prosecutor may immediately dismiss
complaint and its supporting affidavits and the case, if the evidence on the record
documents. The respondent shall have the right clearly fails to establish probable cause; or
to examine the evidence submitted by the ➔ If he finds probable cause, he shall issue a
complainant which he may not have been warrant of arrest or a commitment order if
furnished and to copy them at his expense. If the the complaint or information was filed
evidence is voluminous, the complainant may be pursuant to Section 6 of Rule 112 (valid
required to specify those which he intends to warrantless arrest); or
present against the respondent, and these shall
be made available for examination or copying by
the respondent at his expense. Objects as ➔ If he doubts the existence of probable
evidence need not be furnished a party but shall cause, he may order the prosecutor to
be made available for examination, copying, or present additional evidence within five days
photographing at the expense of the requesting from notice
party.
(c) Within ten (10) days from receipt of the
subpoena with the complaint and supporting
affidavits and documents, the respondent shall
submit his counter-affidavit and that of his
witnesses and other supporting documents
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