2008-Revised-Manual-for-Prosecutors.doc

DEPARTMENT OF JUSTICE National Prosecution Service

MANUAL FOR PROSECUTORS

TABLE OF CONTENTS FOREWORD.....................................................................................................................................................6 ACKNOWLEDGEMENT....................................................................................................................................6 NOTE................................................................................................................................................................7 RULES ON PROCEDURE IN THE INVESTIGATION, PROSECUTION AND TRIAL OF CRIMINAL CASES..........................8 PART I. PROSECUTION OF OFFENSES.................................................................................................................8 SEC. 1 Criminal action......................................................................................................................................8 SEC. 2. How and where commenced...............................................................................................................8 SEC. 3. Complaint.............................................................................................................................................8 SEC. 4. Offended party, defined.......................................................................................................................8 SEC. 5. Information...........................................................................................................................................8 SEC. 6. Sufficiency of complaint or information................................................................................................8 SEC. 7. Other essential matters to be alleged in complaint or information......................................................8 SEC. 8. Additional contents of a complaint.......................................................................................................9 SEC. 9. Name of accused.................................................................................................................................9 SEC. 10. Designation of offense.......................................................................................................................9 SEC. 11. Cause of accusation..........................................................................................................................9 SEC. 13. Time of commission of offense..........................................................................................................9 SEC. 14. Title of complaint or information........................................................................................................9 SEC. 15. Contents of caption of an information...............................................................................................9 SEC. 16. List of prosecution witnesses..........................................................................................................10 SEC. 17. Number of offenses charged...........................................................................................................10 SEC. 18. Amendment of information or complaint..........................................................................................10 SEC. 19. Mistake inform and substance.........................................................................................................10 SEC. 20. How Period of Prescription Computed and Interrupted..................................................................10 PART II. INQUEST..........................................................................................................................................11 SEC. 1. Concept..............................................................................................................................................11 SEC. 2. Designation of In quest Officer. –......................................................................................................11 SEC. 3. Commencement and termination of inquest.-...................................................................................11 SEC. 4. Documents required in specific cases...............................................................................................11 SEC. 5. Incomplete documents......................................................................................................................13 SEC. 6. Presence of detained person............................................................................................................13 SEC. 7. Charges and counter-charges...........................................................................................................13 SEC. 8. Initial duty of Inquest Officer..............................................................................................................13 SEC. 9. where arrest not properly effected.....................................................................................................14 SEC. 10. where arrest properly effected.........................................................................................................14 SEC. 11. Inquest.............................................................................................................................................14 SEC. 12. Meaning of probable cause.............................................................................................................14 SEC. 13. Presence of probable cause............................................................................................................14 SEC. 14. Contents of Information...................................................................................................................14 SEC. 15. Absence of probable cause.............................................................................................................15 SEC. 16. Presence at crime scene.................................................................................................................15 SEC. 17. Sandiganbayan cases.....................................................................................................................15 SEC. 18. Recovered articles...........................................................................................................................15 SEC. 19. Release of recovered articles..........................................................................................................15 PART III. PRELIMINARY INVESTIGATION...................................................................................................16 SEC. 1. Concept of preliminary investigation.................................................................................................16 SEC. 2. Purpose of preliminary investigation.................................................................................................16 SEC. 3. Nature of preliminary investigation....................................................................................................16 Page 2 of 35

SEC. 4. Effect of amendment of information..................................................................................................16 SEC. 5. where right of preliminary investigation may he invoked..................................................................16 SEC. 6. Officers Authorized to Conduct Preliminary Investigation.................................................................17 SEC. 7. Commencement of Preliminary Investigation.-.................................................................................17 SEC. 8. Complaint...........................................................................................................................................17 SEC. 9. Supporting affidavits..........................................................................................................................17 SEC. 10. Number of copies of affidavits.........................................................................................................17 SEC. 11. Barangay certification......................................................................................................................18 SEC. 12. Lack of harangay certification..........................................................................................................18 SEC. 13. Initial/ action on the Complaint........................................................................................................18 SEC. 14. Dismissal of complaint....................................................................................................................18 SEC. 15. Personal service of documents by investigating prosecutor...........................................................18 SEC. 16. Service of subpoena in preliminary investigation............................................................................19 SEC. 17. Where Respondent cannot he subpoenaed...................................................................................19 SEC. 18. Counter-Affidavits............................................................................................................................19 SEC. 19. Motion for dismissal of bill of particulars.........................................................................................19 SEC. 20. Consolidation...................................................................................................................................20 SEC. 21. Extension of time.............................................................................................................................20 SEC. 22. Suspension of proceedings.............................................................................................................20 SEC. 23. Concept of prejudicial question.......................................................................................................20 SEC. 24. Elements of prejudicial question......................................................................................................20 SEC. 25. Issuance of orders of suspension of proceedings...........................................................................21 SEC. 26. Reply-affidavits and rejoinders........................................................................................................21 SEC. 27. Clanficatory questions.....................................................................................................................21 SEC. 28. Submission of case for resolution...................................................................................................21 SEC. 29. Lack of probable cause...................................................................................................................21 SEC. 30. Finding of probable cause...............................................................................................................21 SEC. 31. Reopening of investigation..............................................................................................................22 SEC. 32. Cases Transmitted by the Municipal Trial Judge............................................................................22 SEC. 33. Memoranda......................................................................................................................................22 SEC. 34. Period for resolving a case..............................................................................................................22 SEC. 35. Form of resolution and number of copies.-.....................................................................................22 SEC. 36. Contents of the resolution...............................................................................................................22 SEC. 37. Caption of resolution........................................................................................................................22 SEC. 38. Names of parties.............................................................................................................................22 SEC. 39. Case number...................................................................................................................................23 SEC. 40. Designation of offense charged.......................................................................................................23 SEC. 41. Contents of body of resolution.........................................................................................................23 SEC. 42. Parts of a resolution.........................................................................................................................23 SEC. 43. How recommended hail is written...................................................................................................23 SEC. 44. Recommended bail..........................................................................................................................23 SEC. 45. Parties to be furnished with a copy of the resolution......................................................................23 SEC. 46. Signature and initials of investigating prosecutor............................................................................24 SEC. 47. Records of the case.........................................................................................................................24 SEC. 48. Action of the Provincial or City Prosecutor or Chief State Prosecutor on resolution......................24 SEC. 49. Reversal by the Provincial or City Prosecutor or Chief State Prosecutor of resolution of investigating prosecutor..................................................................................................................................24 SEC. 50. Approval of pleading by head of prosecution office........................................................................24 SEC. 51. Motion for reinvestigation, where filed.............................................................................................24 SEC. 52. Confidentiality of resolutions...........................................................................................................24 SEC. 53. Information/Complaint.....................................................................................................................24 SEC. 54. Documents to be attached to information/complaint.......................................................................25 SEC. 55. Promulgation of resolution...............................................................................................................25 SEC. 56. Motion for reconsideration...............................................................................................................25 SEC. 57. Inhibition..........................................................................................................................................25 SEC. 58. Period to resolve cases under preliminary investigation.................................................................25

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PART IV. PETITION FOR REVIEW................................................................................................................26 SEC. 1. Subject of petition for review.............................................................................................................26 SEC. 2. Period to file petition..........................................................................................................................26 SEC. 3. Form and contents.............................................................................................................................26 SEC. 4. Cases not subject to review; exceptions...........................................................................................27 SEC. 5. Answer...............................................................................................................................................27 SEC. 6. Withdrawal of petition.-......................................................................................................................27 SEC. 7. Motion for reinvestigation..................................................................................................................27 SEC. 9. Motion for Reconsideration...............................................................................................................27 SEC. 10. Effect of filing of petition..................................................................................................................27 PART V. BAIL.................................................................................................................................................28 SEC. 1. Bail defined........................................................................................................................................28 SEC. 2. Nature of right to bad.........................................................................................................................28 SEC. 3. Non-bailable offense..........................................................................................................................28 SEC. 4 Criteria in recommending amount of bail..........................................................................................28 SEC. 5. Burden of proof in bail application.....................................................................................................28 SEC. 6. Recognizance....................................................................................................................................28 SEC. 7. Bail, when not required; reduced bail or recognizance.....................................................................28 SEC. 8. Notice of application for hail to prosecutor........................................................................................29 SEC. 9. Cancellation of hail bond...................................................................................................................29 SEC. 10. Arrest of accused out on hail...........................................................................................................29 SEC. 11. No had after final judgment, exception............................................................................................29 SEC. 12. Rules in computing the bail to be recommended............................................................................29 SEC. 13. Petition for bail in a continuous trial................................................................................................30 PART VI. ARREST..........................................................................................................................................30 SEC. 1. Definition of probable cause as a ground for an arrest or issuance of a warrant of arrest...............30 SEC. 2. Remedy if no warrant of arrest is issued by the investigating judge.................................................30 SEC. 3. Request for a copy of the return........................................................................................................30 PART VII. ARRAIGNMENT AND PLEA.........................................................................................................30 SEC. 1. Concept of arraignment....................................................................................................................30 SEC. 2. Duties of trial prosecutor....................................................................................................................30 SEC. 3. Effect of filing a petition for review.....................................................................................................30 SEC. 4. Concept of plea.................................................................................................................................31 PART VIII. PRE-TRIAL...................................................................................................................................31 SEC. 1. Concept of pre-trial............................................................................................................................31 SEC. 2. Duties of prosecutor before and after the pre-trial conference.........................................................31 SEC. 3. Subject matters ofpre-tn.al................................................................................................................31 SEC. 4. Plea of guilty to a lesser offense.......................................................................................................32 SEC. 5. when accused pleads guilty to a capital offense...............................................................................32 PART IX. TRIAL'.............................................................................................................................................32 SEC. 1. Definition of trial.................................................................................................................................32 SEC. 2. Concept of trial...................................................................................................................................32 SEC. 3. Expeditious prosecution of criminal cases filed with the courts........................................................32 SEC. 4. Order of presentation of witnesses....................................................................................................32 SEC. 5. Preparation of formal offer of exhibits...............................................................................................33 SEC. 6. Defense evidence..............................................................................................................................33 SEC. 7. Discharge of accused to he state witness.........................................................................................33 SEC. 8. Witness protection............................................................................................................................33 SEC. 9. Other persons who may avail of the Witness Protection Program...................................................34 SEC. 10. Motions for postponement of accused............................................................................................34 SEC. 11. Discontinuance of proceedings.......................................................................................................34 SEC. 12. Presentation of evidence.................................................................................................................34

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SEC. 13. Order of trial.....................................................................................................................................34 SEC. 14. Presentation of witnesses..............................................................................................................35 SEC. 15. Examination of witnesses for the prosecution...............................................................................35 SEC. 16. Cross-Examination of defense witnesses......................................................................................35 SEC. 17. Rebuttal evidence............................................................................................................................35

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FOREWORD There is a need maintain the level of competence of our prosecutors to enable them to creditably perform their delicate tasks of prosecuting the guilty and protecting the innocent. This Manual partly answers this need. A compilation of pertinent provisions of the Rules on Criminal Procedure, Department of Justice issuances and decisions of the Supreme Court, this work will be a useful teaching guide for those who ~~ire to be prosecutors and a handy reference book for the prosecutors in the field. We expect this Manual to be enriched and improved through use. ()~'3rcls this end any suggestions for its improvement will )C highly appreciated. Doubtless, this Manual will help elevate the quality of prosecutorial ~ and answer the clamor ~i; our people for fast and efficient justice.

TEOFISTO GUINGONA, JR Secretary

ACKNOWLEDGEMENT

This manual was put together by a Committee created by Secretary of Justice Teofisto T. Guingona, Jr. under Department of Justice Order No.153 dated 28 May 1996. The Body is headed by Assistant Chief State Prosecutor Francisco L. Santos and the following as members: then Assistant Chief State Prosecutor and now Chief State Prosecutor Jovencito R. Zuno, Assistant Chief State Prosecutors Nib C. Mariano and Apolinario G. Exevea, Regional State Prosecutor Claro A. Arellano, Quezon City Prosecutor Candido F. Rivera, Pasig City Prosecutor Antonio L. Liorente,Laguna Provincial Prosecutor George C. Dee and Rizal 2nd Assistant Provincial Fiscal Apolinario D. Brusel as, Jr. The Committee was assisted in its work by former Rizal Provincial Prosecutor Mauro M. Castro and Deputy Ombudsman for Luzon Jesus F. Guerrero both of whom contributed valuable and refined insights into the work of a prosecutor. In this regard, I wish to acknowledge the rote of Rizal Provincial Prosecutor Gregono A. Arizala and his team in putting the Manual in its final form and State Prosecutor II Teresita R. Domingo for taking pains in reading the manuscript.

RAMON J. LIWAG Undersecretary Chairman, Committee created under Department Order No.153, series of 1996

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NOTE THIS MANUAL IS DESIGNED TO BE REVISED AND UPDATED AS THE NEED ARISES. WHEN CHANGES OCCUR IN THE RELEVANT LAW, ISSUANCE OR JURISPRUDENCE ,THESE CHANGES WILL BE FORWARDED TO YOU IN THE FORM OF NEW LOOSE LEAF PAGES. FILE THESE NEW PAGES AS SOON AS POSSIBLE TO KEEP YOUR MANUAL CURRENT AND COMPLETE.

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RULES ON PROCEDURE IN THE INVESTIGATION, PROSECUTION AND TRIAL OF CRIMINAL CASES PART I. PROSECUTION OF OFFENSES SEC. 1 Criminal action. - A criminal action is one by which the state prosecutes a person for an act or omission punishable by law.1 SEC. 2. How and where commenced. - A criminal action is commenced by the filing of a complaint with the City/Provincial Prosecution Office or with the Municipal Trial Court or Municipal Circuit Trial Court. However, a criminal action for an offense committed within Metro Manila, may be commenced only by the filing of the complaint with the Prosecutor's Office. SEC. 3. Complaint. - A complaint is a sworn written statement charging a person with an offense and subscribed by the offended party, any peace officer or public officer charged with the enforcement of the law violated.2 To discourage the filing of harassment charges, the prosecutor shall warn the complainant that any false statement in the complaint may give rise to a finding of a prima facie case for perjury before the same office. SEC. 4. Offended party, defined. - The offended party is the person against whom or against whose property the crime was committed.3 SEC. 5. Information. - An information is the accusation in writing charging a person with an offense, subscribed by the prosecutor, and filed with the court. The information need not be placed under oath by the prosecutor signing the same. The prosecutor must, however, certify under oath that a) he has examined the complainant and his witnesses; b) there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; c) the accused was informed of the complaint and of the evidence submitted against him; and d) the accused was given an opportunity to submit controverting evidence. 4 SEC. 6. Sufficiency of complaint or information. - A complaint or information tshall be considered sufficient if it states a) b) c) d) e) f)

the name of the accused; the designation of the offense committed; the act or omission complained of; the name of the offended party; the approximate time of the commission of the offense; and the place where the offense was committed. 5

SEC. 7. Other essential matters to be alleged in complaint or information. -The following shall also be 1

Sec. 3 (b), Rule 1, 1997 Rules of Civil Procedure. Sec. 3, Rule 110, Rules on Criminal Procedure; Example of public officer charged with the enforcement of the law violated: Bureau of Customs officials for violation of the customs law; Bureau of Forest Development officials for violation of forestry laws; chief of police of a municipality for violation of a municipal ordinance which constitutes a criminal offense. The sworn complaint referred to usually refers to a complaint filed in court and not in the prosecutor's office. It is not necessary to file a sworn complaint with the prosecutor before the latter can conduct a preliminary investigation. A mere unsworn letter suffices to start an investigation, except if the offense charged is one which cannot be prosecuted de oficio or is private in nature i.e., where the law requires that it be started by a complaint sworn to by the offended party. In a case involving a private offense, the phrase "complaint filed by the offended party" as used in Section 5, Rule 110 should be given a liberal or loose interpretation, meaning a "charge, allegation, grievance or accusation" rather than a strict construction for often than not the offended party who files it is unschooled in law The purpose of the complaint in Section 5, Rule 110, is merely to initiate or commence the prosecution of the accused. Thus, the "Sinumpaang Salaysay" of the victim of a private offense is already deemed a complaint" required in the aforesaid Sec. 5. (People vs. Sangil, 208 SCRA 696 [1992]). 3 Sec. 12, par. 1, Rules on Criminal Procedure 4 Sec. 4, Rule 112, ibid. 5 Sec. 6, Rule 110, ibid. 2

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alleged in a complaint or information: a) b) c) d)

every essential element O{ the offense; the criminal intent of the accused and its relation to the act or omission complained of; all qualifying and generic aggravating circumstances which are integral pans of the offense; all matters that are essential to the constitution of the offense, such as the ownership and/or value of the property robbed or destroyed; the particular knowledge to establish culpable intent; or the particular intention that characterizes the offense; e) age of the minor accused, and whenever applicable, the fact that he acted with discernment; and f) age of the minor complainant, when age is material. SEC. 8. Additional contents of a complaint - In addition to the matters listed above, a complaint or information shall contain a certification that the recitals therein are true and correct and not in the nature of a countercharge to avoid conflict in the appreciation of the facts and evidence. SEC. 9. Name of accused. - The complaint or information shall state the name and surname of the accused, if known, or any appellation or nickname by which he -has been or is known. If his name is not known, the accused shall be mentioned under a fictitious name such as "John Doe' 1 or "Jane Doe." SEC. 10. Designation of offense. - To properly inform the accused of the nature and cause of the accusation against him, the complaint or information shall state, whenever possible, a) the designation given to the offense by the statute; b) the statement of the act or omission constituting the same, and if there is no such designation, reference shall be made to the section or subsection of the law punishing it. 6 SEC. 11. Cause of accusation. - The act or omission complained of as constituting the offense shall be stated in an ordinary and concise language without repetition. The statement need not use the terms of the statute defining the offense so long as a person of common understanding is able to know what offense was intended to be charged and to enable the court to pronounce proper judgment. 7 SEC. 12. Place of the commission of offense. - The complaint or information is sufficient if it states that the crime charged was committed or some of the ingredients thereof occurred at some place within the jurisdiction of the court, unless the particular place in which the crime was committed is an essential element of the crime e.g. in a prosecution for violation of the provision of the Election Code which punishes the carrying of a deadly weapon in a t'polling place ", or if it is necessary to identify the offense charged e.g., the domicile in the offense of "violation of domicile." 8 SEC. 13. Time of commission of offense. - The precise time of the commission of the offense shall be stated in the complaint or information if time is a material ingredient of the offense e.g. ,treason, infanticide. Otherwise, it is sufficient that it be alleged that the offense was committed at any time as near to the actual date at which the offense was committed. 9 SEC. 14. Title of complaint or information. - The title of the complaint or information shall be in the name of the "People of the Philippines" as Plaintiff against all persons who appear to be responsible for the offense involved.10 SEC. 15. Contents of caption of an information. - The caption of an information shall, in addition to the name of the Plaintiff, indicate the following: a) the complete names i.e., given name, maternal name, surname, and addresses, of all the accused. In 6

Sec. 8, ibid. Sec. 9, ibid. 8 Sec. 10, ibid. 9 9.Sec. 11, ibid. Sec. 2, ibid. 10 Sec. 2, ibid. 7

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the case of accused minors, their age shall be indicated in the caption; b) the case number; and c) the offense charged. The denomination of the offense and the specific law and provision violated shall be specified. SEC. 16. List of prosecution witnesses. - The information shall contain the complete names and addresses of all identified witnesses for the prosecution. In cases for violation of B. P. Blg. 22 and estafa cases, the list of witnesses shall include the complainant, the bank representative with specific reference to the check and account numbers involved and in the proper cases, the company auditor; and in physical injuries cases, the attending physician with specific reference to the medical report and date of the incident. SEC. 17. Number of offenses charged. - A complaint or information shall charge only one offense so as not to confuse the accused in his defense, except in those cases in which existing laws prescribe a single punishment for various offenses, e.g., complex crimes under Article 48 of the Revised Penal Code. 11 SEC. 18. Amendment of information or complaint. - An information or complaint may be amended before the accused pleads, after the accused has pleaded, and during the trial. Before plea, amendment of the information or complaint, in substance or form, is a matter of right. After plea and during trial, amendment may be made only with leave of court and only as to matters of form wherein the same can be done without prejudice to the rights of the accused. At any time before judgment, if there has been a mistake in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, 12 provided the accused would not be placed thereby in double jeopardy. The court may also require the witnesses to give bail for their appearance at the trial. 13 SEC. 19. Mistake inform and substance. - A mistake in form refers to clerical errors, matters which are not essential to the charge, and those which will not mislead or prejudice the accused as when a defense under the original information can be used after the amendment is made and any evidence that the accused may have would be equally applicable to the one form as in the other. A mistake in substance is any omission or misstatement which prevents an information from showing on its face that an offense has been committed, or from showing what offense is intended to be charged.14 SEC. 20. How Period of Prescription Computed and Interrupted. - For an offense penalized under the Revised Penal Code, the period of prescription commences to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted: a) by the filing of the complaint with the Office of the City/Provincial Prosecutor; 15 or wit the Office of the Ombudsman;16 or b) by the filing of the complaint or information with the court even if it is merely for purposes of preliminary examination or investigation, or even if the court where the complaint or information is filed cannot try the case on its merits.17 However, for an offense covered by the Rules on Summary Procedure, the period of prescription is interrupted only by the filing of the complaint or information in court. 18 The prescription of an offense filed before the Prosecutor or Ombudsman shall commence to run again when such Sec. 13, ibid; " Penalty for complex crimes. - When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period". (An. 48, Revised Penal Code). 12 "when mistake has teen made in charging the proper offense. - When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information." 13 Sec. 14, Rule 110, ibid. 14 42 C.J.S.,Sec. 240 at pp.1249-1250. 15 Sec. 1, par. 2, Rule 110, Rules on Criminal Procedure. 16 Llenes vs. Dicdican, 260 SCRA 207 (1996). 17 Ibid. 18 Ibid. 11

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proceedings terminate; while the prescription of an offense filed in court starts to run again when the proceedings terminate without the accused being convicted or acquitted or are unjustifiably stopped for any reason not imputable to the accused. 19 For violation of a special law or ordinance, the period of prescription shall commence to run from the day of the commission of the violation, and if the same is not known at the time, from the discovery and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted only by the filing of the complaint or information in court and shall begin to run again if the proceedings are dismissed for reasons not constituting double jeopardy. 20 For cases falling within the jurisdiction of the Katarungang Pambarangay, the period of prescription is likewise interrupted by the filing of the complaint with the punong barangay; but shall resume to run again upon receipt by the complainant of the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary; Provided, however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the punong barangay. 21 Prescription shall not run when the offender is absent from the country. 22

In cases where the imposable penalty is imprisonment and/or a fine, the greater penalty shall be the basis for the computation of prescription. PART II. INQUEST23 SECTION 1. Concept. - Inquest is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. SEC. 2. Designation of In quest Officer. – The City or Provincial Prosecutor shall designate the Prosecutors assigned to inquest duties and shall furnish the Philippine National Police (PNP) a list of their names and their schedule of assignments. If, however, there is only one Prosecutor in the area, all inquest eases shall be referred to him for appropriate action. Unless otherwise directed by the City or Provincial Prosecutor, those assigned to inquest duties shall discharge their functions during the hours of their designated assignments and only at the police stations/headquarters of the PNP in order to expedite and facilitate the disposition of inquest eases. SEC. 3. Commencement and termination of inquest.- The inquest proceedings shall be considered commenced upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which should include: a) b) c) d)

the affidavit of arrest; the investigation report; the statement of the complainant and witnesses; and other supporting evidence gathered by the police in the course of the latter's investigation of the criminal incident involving the arrested or detained person.

The Inquest Officer shall, as far as practicable, cause the affidavit of arrest and statements/affidavits of the complainant and the witnesses to be subscribed and sworn to before him by the arresting officer and the affiants. The inquest proceedings must be terminated within the period prescribed under the provisions of Article 125 of the Revised Penal Code, as amended. 24 SEC. 4. Documents required in specific cases. - The Inquest Officer shall, as far as practicable, require the submission/presentation of the documents listed below, to wit: Murder, Homicide and Parricide a) certified true/machine copy of the certificate of death of the victim; and An. 91 Revised Penal Code. Sec. 2, Act No.3326, as amended. 21 Sec. 40 par.,Local Govt. Code. 22 Art. 91, par. 2, Revised Penal Code. 23 Department of Justice Circular No.61 dated 21 December 1993. 24 12 Hours for light offenses; 18 hours for less grave offenses; and 36 hours for grave offenses. 19

20

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b) necropsy report and the certificate of post-mortem examination, if readily available. Frustrated or Attempted Homicide, Murder, Parricide and Physical Injuries a) medical certificate of the complaining witness showing the nature or extent of the injury; b) certification or statement as to duration of the treatment or medical attendance; and c) certificate or statement as to duration of incapacity for work. Violation of the Dangerous Drugs Law (R.A. No.6425, as amended) a) chemistry report or certificate of laboratory examination duly signed by the forensic chemist or other duly authorized officer. If the foregoing documents are not available, the Inquest Officer may temporarily rely on the field test results on the seized drug, as attested to by a PNP Narcotics Command operative or other competent person, in which event, the Inquest Officer shall direct the arresting officer to immediately forward the seized drug to the crime laboratory for expert testing and to submit to the prosecutor's office the final forensic chemistry report within five (5) days from the date of the inquest; b) machine copy or photograph of the buy-bust money; and c) affidavit of the poseur-buyer, if any. Theft and Robbery, Violation of the Anti-Piracy and Anti-Highway Robbery Law (P.D. No.532) and Violation of the Anti-Fencing Law (P.D. No.1612) a) a list/inventory of the articles and items subject of the offense; and b) values.

statement of their respective

Rape, Seduction and Forcible Abduction with Rape a) the medico-legal report (living case report), if the victim submitted herself for medical or physical examination. Violation of the Anti-Carnapping Law (R.A. No.6539) a) machine copy of the certificate of motor vehicle registration; b) machine copy of the current official receipt of payment of theregistration fees of the subject motor vehicle; and c) other evidence of ownership. Violation of the Anti-Cattle Rustling Law (P.D. No.533) a) b)

machine copy of the cattle certificate of registration; and photograph of the cattle, if readily available.

Violation of Illegal Gambling Law (P.D. No.1602) a) b)

gambling paraphernalia; and cash money, if any.

Illegal Possession of Explosives (P.D. No.1866) a) b)

chemistry report duly signed by the forensic chemist; and photograph of the explosives, if readily available.

Violation of the Fisheries Law (P.9. No.704) a) b)

photograph of the confiscated fish, if readily available; and certification of the Bureau of Fisheries and Aquatic Resources.

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Violation of the Forestry Law (P.9. No.705) a) scale sheets containing the volume and species of the forest products confiscated, number of pieces and other important details such as estimated value of the products confiscated; b) certification of Department of Environment and Natural Resources/Bureau of Forest Management; and c) seizure receipt. The submission of the foregoing documents shall not be absolutely required if there are other forms of evidence submitted which will sufficiently establish the facts sought to be proved by the foregoing documents. SEC. 5. Incomplete documents. - When the documents presented are not complete to establish probable cause, the Inquest Officer shall direct the law enforcement agency to submit the required evidence within the period prescribed under the provisions of Article 125 of the Revised Penal Code, as amended. 25 Otherwise, the Inquest Officer shall order the release of the detained person 26 and, where the inquest is conducted outside of office hours, direct the law enforcement agency concerned to file the case with the City or Provincial Prosecutor for appropriate action. SEC. 6. Presence of detained person. - The presence of the detained person who is under custody shall be ensured during the proceedings. However, the production of the detained person before the Inquest Officer may be dispensed with in the following cases: a) if he is confined in a hospital; b) if he is detained in a place under maximum security; c) if production of the detained person will involve security risks; or d) if the presence of the detained person is not feasible by reason of age, health, sex and other similar factors. The absence of the detained person by reason of any of the foregoing factors shall be noted by the Inquest Officer and reflected in the record of the case. SEC. 7. Charges and counter-charges.- All charges and counter-charges arising from the same incident shall, as far as practicable, be consolidated and inquested jointly to avoid contradictory or inconsistent dispositions. SEC. 8. Initial duty of Inquest Officer. - The Inquest Officer shall first determine if the arrest of the detained person was made in accordance with paragraphs (a) and (b) of Section 5, Rule 113 of the 1985 Rules on Criminal Procedure, as amended, which provide that arrests without a warrant may be effected: 27 a) when, in the presence of the arresting officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or b) when an offense has in fact just been committed, and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. For this purpose, the Inquest Officer may summarily examine the arresting officers on the circumstances surrounding the arrest or apprehension of the detained person. SEC. 9. where arrest not properly effected. - Should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall; NPS Form No.1. NPS Form No.2. 27 Go vs. Court of Appeals, 206 SCRA 138 [1992]; Umil, et.al. vs. Ramos, 202 SCRA 251 [1991] and companion cases People vs. Malmstedt, 198 SCRA 401 and People vs. Aminudin, 163 SCRA 402 [1988]. 25 26

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a) b) c) d)

recommend the release of the person arrested or detained; note down the disposition on the referral document; prepare a brief memorandum indicating the reasons for the action taken; and forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action.

Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but the evidence on hand warrants the conduct of a regular preliminary investigation, the order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavits or sworn statements of the complainant and his witnesses and other supporting evidence.28 SEC. 10. where arrest properly effected. - Should the inquest Officer find that the arrest was properly effected, the detained person shall be asked if he desires to avail himself of a preliminary investigation and, if he does, he shall be made to execute a waiver of the provisions of Article 125 of the Revised Penal Code, as amended29, with the assistance of a lawyer and, in case of non-availability of a lawyer, a responsible person of his choice.30 The preliminary investigation may be conducted by the Inquest Officer himself or by any other Assistant Prosecutor to whom the case may be assigned by the City or Provincial Prosecutor, which investigation shall be terminated within fifteen (15) days from its inception. SEC. 11. Inquest preliminary investigation Inquest Officer shall statements/affidavits of evidence submitted to him. proper.Where the detained person does not opt for or otherwise refuses to execute the required waiver, the proceed with the inquest by examining the sworn the complainant and the witnesses and other supporting

If necessary, the Inquest Officer shall require the presence of the complaining witnesses and subject them to an informal and summary investigation or examination for purposes of determining the existence of probable cause. SEC. 12. Meaning of probable cause.- Probable cause exists when the evidence submitted to the Inquest Officer engenders a well-founded belief that a crime has been committed and that the arrested Or detained person is probably guilty thereof. SEC. 13. Presence of probable cause.- If the Inquest Officer finds that probable cause exists, he shall forthwith prepare the corresponding complaint/information with the recommendation that the same be filed in court. The complaint/information shall indicate the offense committed and the amount of bail recommended, if bailable. Thereafter, the record of the case, together with the prepared complaint/information, shall be forwarded to the City or Provincial Prosecutor for appropriate action. The complaint/information may be filed by the Inquest Officer himself or by any other Assistant Prosecutor to whom the case may be assigned by the City or Provincial Prosecutor. SEC. 14. Contents of Information.- The information shall, among others, contain: a) a certification by the filing Prosecutor that he is filing the same in accordance with the provisions of Section 7, Rule 112, Rules on Criminal Procedure, in cases cognizable by the Regional Trial Court;31 b) the full name and aliases, if any, and address of the accused; c) the place where the accused is actually detained; d) the full names and addresses of the complainant and witnesses; 28

See NPS Form No.2. See NPS Form No.3. 30 Such responsible person may be a parent, elder brother or sister, spouse, the municipal mayor, the municipal judge, district school supervisor, or priest/minister of the gospel as chosen by him (Sec. 2 (d) RA 7438, An Act Defining Rights of Person Arrested, Detained or under Custodial Investigation) 31 NPS Form No.2. 29

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e) a detailed description of the recovered items, if any; f) the full name and address of the evidence custodian; g) the age and date of birth of the complainant or the accused, if eighteen (18) years of age or below; and h) the full names and addresses of the parents, custodians or guardians of the minor complainant or accused, as the case may be. SEC. 15. Absence of probable cause.- If the Inquest Officer finds no probable cause, he shall: a) b) c) d)

recommend the release of the arrested or detained person; 32 note down his disposition on the referral document; prepare a brief memorandum indicating the reasons for the action taken; and forthwith forward the record of the case to the City or Provincial Prosecutor for appropriate action.

If the recommendation of the Inquest Officer for the release of the arrested or detained person is approved, the order of release shall be served on the officer having custody of the said detainee. Should the City or Provincial Prosecutor disapprove the recommendation of release, the arrested or detained person shall remain under custody, and the corresponding complaint/information shall be filed by the City or Provincial Prosecutor or by any Assistant Prosecutor to whom the case may be assigned. SEC. 16. Presence at crime scene. - Whenever a dead body is found and there is reason to believe that the death resulted from foul play, or from the unlawful acts or omissions of other persons and such fact has been brought to his attention, the Inquest Officer shall: a) forthwith proceed to the crime scene or place of discovery of the dead person; b) cause an immediate autopsy to be conducted by the appropriate medico-legal officer in the locality or the PNP medico-legal division or the NBI medico-legal office, as the case may be; c) direct the police investigator to cause the taking of photographs of the crime scene or place of discovery of the dead body; d) supervise the investigation to be conducted by the police authorities as well as the recovery of all articles and pieces of evidence found thereat and see to it that the same are safeguarded and the chain of the custody thereof properly recorded; and e) submit a written report of his finding to the City or Provincial Prosecutor for appropriate action. SEC. 17. Sandiganbayan cases.- Should any complaint cognizable by the Sandiganbayan be referred to an Inquest Officer for investigation, the latter shall, after conducting the corresponding inquest proceeding, forthwith forward the complete record to the City or Provincial Prosecutor for appropriate action. SEC. 18. Recovered articles.- The Inquest Officer shall see to it that all articles recovered by the police at the time of the arrest or apprehension of the detained person are physically inventoried, checked and accounted for with the issuance of corresponding receipts by the police officer/investigator concerned. The said articles must be properly deposited with the police evidence custodian and not with the police investigator. The Inquest Officer shall ensure that the items recovered are duly safeguarded and the chain of custody is properly recorded. SEC. 19. Release of recovered articles.- The Inquest Officer shall, with the prior approval of the City or Provincial Prosecutor or his duly authorized representative, order the release 33 of recovered articles to their lawful owner or possessor, subject to the conditions that: a) there is a written request for their release; 34 NPS Form No.4.

32

33 34

See NPS Form No.5. See NPS Form No.6. Page 15 of 35

b) the person requesting the release of said articles is shown to be the lawful owner or possessor thereof; c) the requesting party undertakes under oath to produce said articles before the court when so required; d) the requesting party, if he is a material witness to the case, affirms or reaffirms his statement concerning the case and undertakes under oath to appear and testify before the court when so required; e) the said articles are not the instruments, or tools in the commission of the offense charged nor the proceeds thereof; and f) photographs of said articles are first taken and duly certified to by the police evidence custodian as accurately representing the evidence in his custody. PART III. PRELIMINARY INVESTIGATION SECTION 1. Concept of preliminary investigation - A preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof and should be held for trial.35 A preliminary investigation is essentially a judicial inquiry since there is the opportunity to be heard, the production and weighing of evidence, and a decision rendered on the basis of such evidence. In this sense, the investigating prosecutor is a quasi-judicial officer. 36 SEC. 2. Purpose of preliminary investigation. - A preliminary investigation is intended: a) to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime and from the trouble, expense and anxiety of a public trial;37 and b) to protect the State from having to conduct useless and expensive trials. 38 SEC. 3. Nature of preliminary investigation. - The conduct of a preliminary investigation is a substantive right which the accused may invoke prior to or at least at the time of plea, the deprivation of which would be a denial of his right to due process. SEC. 4. Effect of amendment of information. - In case an information is amended, a new preliminary investigation shall be conducted if the amended charge is not related to the crime originally charged; if there is a change in the nature of the crime charged; or if the information on its face is null and void for lack of authority to file the same. SEC. 5. where right of preliminary investigation may he invoked. - The right to a preliminary investigation may be invoked only in cases cognizable by the Regional Trial Court. The right is not available in cases triable by inferior courts. SEC. 6. Officers Authorized to Conduct Preliminary Investigation. - The following may conduct a preliminary investigation;39 a) Provincial or City Prosecutors and their assistants; b) Judges of Municipal Trial Courts and Municipal Circuit Trial Courts; Section 1, Rule 112, Rules on Criminal Procedure. Cruz, Jr. vs. People, 233 SCRA 439 [1994]. 37 People vs. Poculan, 167 SCRA 176 [1988]; Rodis, Sr. vs. Sandiganbayan, Second Division, 166 SCRA 618 [19881; Salonga vs. Pano, 134 SCRA 438 [1985]; Trocio vs. Manta, 118 SCRA 241 [1982]; Sausi vs. Querubin, 62 SCRA 155 [1975]; and Hashim vs. Boncan, 71 Phil. 216 [1941]. 38 Tandoc vs. Resultan, 175 SCRA 37 [1989]. 39 Par. 1, Sec. 2, Rule 112, supra. 35 36

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c) National and Regional State Prosecutors; and d) Other officers as may be authorized by law. 40 Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction.41 SEC. 7. Commencement of Preliminary Investigation.- A preliminary investigation proceeding is commenced: a) by the filing of a complaint by the offended party or any competent person 842 directly with the Office of the Investigating Prosecutor or Judge; b) by referral from or upon request of the law enforcement agency that investigated a criminal incident; c) upon request of a person arrested or detained pursuant to a warrantless arrest who executes a waiver of the provisions of Article 125 of the Revised Penal Code, as amended; d) by order or upon directive of the court or other competent authority; or e) for election offenses, upon the initiative of the Commission on Elections, or upon written complaint by any citizen, candidate, registered political party, coalition of registered parties or organizations under the party-list system or any accredited citizen arm of the Commission on Elections. 43 SEC. 8. Complaint. - For purposes of preliminary investigation, the complaint filed with the prosecutor's office shall, as far as practicable, be accompanied or covered by an Information Sheet and shall state, among others a) the full and complete names and exact home, office or postal addresses of the complainant and his witnesses; b) The full and complete name and exact home, office or postal address of the respondent; c) The offense charged and the place and exact date and time of its commission; and d) Whether or not there exists a related case and, if so, the docket number of said case and the name of the Investigating Prosecutor thereof. SEC. 9. Supporting affidavits.- The complaint shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting proofs or documents, if any. The affidavits shall be sworn to before a Provincial, City or State Prosecutor, or other government official authorized to administer oaths or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. 44 When the preliminary investigation is commenced by referral from or upon request of the law enforcement agency that investigated the incident, the affidavits of the complainant and his witnesses to be submitted by the said agency shall consist of the original or duplicate original or certified machine copies thereof. SEC. 10. Number of copies of affidavits. - The complaint and supporting affidavits shall be in such number of copies as there are respondents, plus four (4) copies for the court/official file. Where a complaint charges multiple offenses which cannot be the subject of one indictment or information, the complainant may be required to submit such additional copies of the complaint and supporting affidavits as there are offenses charged in the complaint. SEC. 11. Barangay certification . - If the offense charged is punishable by imprisonment not exceeding one (1) year or a fine not exceeding Five Thousand Pesos (5,000.00) and the parties to the case are all The Special Prosecution Officers and Graft Investigation Officers in cases cognizable by the Office of the Ombudsman and the COMELEC officials in cases involving violations of the Election Code, PCGG Officers 41 Par. 2, Section 2, Rule 112, supra. 42 Ebarle vs. Sucaldito, 156 SCRA 803 [1987]. 43 Sections 3 & 5, Rule 34, COMELEC Rules of Procedure. 44 Sec. 3(a), Rule 112, Rules on Criminal Procedure. 40

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residents of the same city or municipality, the complaint shall be accompanied by the certification required under Section 412 (a) of R.A. Act No.7160, "The Local Government Code of 1991. 45 SEC. 12. Lack of harangay certification.- The absence of a barangay certification shall not be a ground for the dismissal of the complaint. The Investigating Prosecutor shall, however, make the corresponding referral of the complaint to the proper Lupong Tagapamayapa for appropriate action pursuant to the provisions of Chapter 7, Book III of R.A. No.7160. In connection therewith, the complainant may be summoned for the purpose of delivering the referral to the Chairman of the appropriate barangay and to secure the necessary certification within thirty (30) days. In any of the following cases. the Investigating Prosecutor shall proceed to take cognizance of the complaint for purposes of preliminary investigation 46 even if there is no Barangay Certification: a) where the respondent is under detention; or b) where the respondent has been deprived of personal liberty calling for habeas corpus proceedings; or c) where the case may be barred by the Statute of Limitations. SEC. 13. Initial/ action on the Complaint.- Within ten (10) days after the filing of the complaint, the Investigating Prosecutor shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint together with the affidavits of witnesses and other supporting documents. 47 SEC. 14. Dismissal of complaint. - The following, among others, shall constitute sufficient basis for the outright dismissal of a complaint: a) that the offense charged in the complaint was committed outside the territorial jurisdiction of the Office of the Investigating Officer;48 b) that, at the time of the filing of the complaint, the offense charged therein had already prescribed; c) that the complainant is not authorized under the provisions of pertinent laws to file the complaint; d) that the acts and/or omissions alleged in the complaint and/or the supporting affidavits do not sufficiently show that a criminal offense or violation of a penal law has been committed; or e) that the complaint and the supporting affidavits are unsigned and/or have not been duly subscribed and sworn to as prescribed under the Rules on Criminal Procedure. SEC. 15. Personal service of documents by investigating prosecutor. -Whenever circumstances warrant and to prevent the loss of documents in the course of the service of a subpoena through ordinary modes, the Investigating Prosecutor may require the respondent or other parties to appear before him on a designated date, time and place and then and there personally furnish them with copies of the complaint, supporting affidavits and other documents. At the said or any other setting, the respondent shall have the right to examine all other evidence submitted by the complainant. Failure on the part of the respondent or his counsel/representative to appear before the Investigating Prosecutor to obtain copies of the complaint, supporting affidavits and other documents despite receipt of notice or subpoena shall be considered a waiver or forfeiture of respondent 9s right to be furnished copies of the complaint, supporting affidavits and other documents, as well as to examine all other evidence submitted by the complainant.

See Appendix "0", List of Offenses cognizable by the Lupong Tagapamayapa (Crimes Covered by the Katarungang Pambarangay). 46 Sec. 412(b), R.A. No.7160. 47 Section 3(b), Rule 112, Rules of Criminal Procedure. 48 The resolution of dismissal should include a statement that the entire record of the case is being forwarded to the office having jurisdiction over the same. 45

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For the purposes specified in the first paragraph hereof, the Investigating Prosecutor shall not require the appearance before him of the respondent or other parties who are residing in distant places. In such cases, the Investigating Prosecutor shall issue and send the subpoena, together with copies of the complaint, supporting affidavit and other documents, by registered special delivery mail with return card. SEC. 16. Service of subpoena in preliminary investigation. - To expedite the conduct of a preliminary investigation, the following guidelines shall be observed in the service of subpoenasa) Service of subpoena and all papers/documents required to be attached thereto shall be b'~personal service by regular process servers. In their absence, the cooperation of the Provincial City/Municipal Station Commanders of the Philippine National Police (PNP) may be requested for the purpose. b) Under other circumstances, where personal service cannot be effected but the respondent cannot be considered as incapable of being subpoenaed as when he continues to reside at his known address but the return states that he "has left his residence and his return is uncertain" or words of similar import, service of subpoena and its attachments shall be effected by registered mail with return card at respondent's known home/office address. On the face of the envelope shall be indicated i) the name and return address of the sender and the Typewritten/printed phrase "First Notice Made on______________", thus instructing the postmaster/postal employee of the necessity of informing

the sender of the date the first notice was made on the addressee; and ii) the typewritten/printed request: "If not claimed within five (5) days from first notice, please return to sender." c) Upon receipt of the unclaimed/returned envelope, the Investigating Prosecutor may then proceed to resolve the complaint on the basis of the evidence presented by the complainant. 49 SEC. 17. where Respondent cannot he subpoenaed - If a respondent cannot be subpoenaed, as, for instance, he transferred residence without leaving any forwarding address, the Investigating Prosecutor shall base his resolution on the evidence presented by the complainant. SEC. 18. Counter-Affidavits.- In cases where the respondent is subpoenaed, he shall within ten (10) days from receipt of the complaint and other documents, submit his counter-affidavit and other supporting documents which shall be sworn to and certified as prescribed in the second sentence of par. 1 of Section 9 this Part, copies of which shall be furnished by the respondent to the complainant. 50 Only a counter-affidavit subscribed and sworn to by the respondent before the Public Prosecutor can dispute or put at issue the allegations in the complaint. A memorandum, manifestation or motion to dismiss signed by the counsel cannot take the place of a counter-affidavit. Thus, a respondent relying on the manifestation, memorandum or motion to dismiss of his counsel is deemed to have not controverted complainant's evidence. 51 However, if such memorandum, manifestation or motion to dismiss is verified by the respondent himself, the same may be considered a counter-affidavit. SEC. 19. Motion for dismissal of bill of particulars.-The filing of a motion for the dismissal of the complaint or for the submission of a bill of particulars shall not suspend or interrupt the running of the period for the submission of counter-affidavits and other supporting documents. All the grounds for the dismissal of the complaint, as well as objections to the sufficiency thereof, shall be alleged or incorporated in the counter-affidavit and shall be resolved by the Investigating Prosecutor jointly on the merits of the case. The Investigating Prosecutor may grant a motion to dismiss filed by a respondent who is yet to file or has not filed his counter-affidavit if the said motion is verified and satisfactorily establishes, among Sec 3(d), Rule 112, Rules on Criminal Procedure; Department of Justice Memorandum Circular No.25 dated 2 October 1989. 50 Secs. 3(b) & (c), Rule 112, supra. 51 DOJ Resolution No.109, Series of 1990. (I. S. NO.89-243, "Bulacan Garden Corporation vs. Filomena", OPP, Bulacan). 49

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others: a) the circumstances specified in sub-paragraphs (a), (b) 9 (c) and (d) and (e) of Section 14 of this Part; b) the fact that the complaint, or one similar thereto or identical therewith, has previously been filed with the Office and has been fully adjudicated upon on the merits after due preliminary investigation proceedings; or c) the extinction of respondentts criminal liability by reason of death, pardon, amnesty, repeal of the law under which prosecution is sought, or other legal causes. SEC. 20. Consolidation.- The following cases shall, as far as practicable, be consolidated for preliminary investigation purposes and assigned to and jointly heard by one Investigating Officer: a) charges and counter-charges; b) cases arising from one and the same incident or transaction or series of incident or transactions; and c) cases involving common parties and founded on factual and/or legal issues of the same or similar character. SEC. 21. Extension of time. - No motion or request for extension of time to submit counter-affidavits shall be allowed or granted by the Investigating Prosecutor except when the interest of justice demands that the respondent be given reasonable time or sufficient opportunity to: a) engage the services of counsel to assist him in the preliminary investigation proceedings; b) examine or verify the existence, authenticity or accuracy of voluminous records, files, accounts or other papers or documents presented or submitted in support of the complaint; or c) undertake studies or research on novel, complicated or technical questions or issues of law and of facts attendant to the case under investigation. Extensions of time to submit a counter-affidavit for any of the reasons stated above shall not exceed ten (10) days. Additional extensions may be authorized by the Provincial/City Prosecutor concerned. SEC. 22. Suspension of proceedings.- Upon motion of a party, or when raised in a counter-affidavit, the Investigating Prosecutor may suspend the preliminary investigation proceedings if the existence of a prejudicial question is satisfactorily established. 52 The existence of a prejudicial question shall, however, not be a ground for the dismissal of the complaint. SEC. 23. Concept of prejudicial question.- A prejudicial question is one the resolution of which is a logical antecedent of the issue involved in a case and the cognizance of which pertains to another tribunal. 53 It is based on a fact distinct and separate from the crime charged but so intimately connected with it that it determines the guilt or innocence of the accused. To suspend the criminal action, it must not only appear that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 54 SEC. 24. Elements of prejudicial question. - The essential elements of a prejudicial question are: a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; b) the resolution of such issue determines whether or not the criminal action may proceed ; 55 and c) the cognizance of the said issue pertains to another tribunal. 56 Sec.6, Rule 111, ibid. Ras vs. Rasul, 100 SCRA 125 [1980]; Quiambao vs. Osono, G. R. No.48157, March 16, 1988; and Appendix “P” 54 Donato vs. Luna, G.R. No.53642, April 15, 1988; Prado vs. People, 133 SCRA 602 [1984]; and Librodo vs. Coscolluela, Jr., 116 SCRA 303 [1982]. 55 Sec. 5, Rule 111, supra. 56 Cf. Ras vs. Rasul, supra; Quiambao vs. Osono, supra. 52 53

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SEC. 25. Issuance of orders of suspension of proceedings.- No resolution or order suspending the preliminary investigation based on the existence of a prejudicial question shall be issued by the Investigating Prosecutor without the written approval of the Provincial/City Prosecutor concerned or his duly designated assistant. SEC. 26. Reply-affidavits and rejoinders.- The Investigating Prosecutor shall not require or allow the filing or submission of reply-affidavits and/or rejoinders, except where new issues of fact or questions of law which are material and substantial in nature are raised or invoked in the counter-affidavit or subsequent pleadings and there exists a need for said issues or questions to be controverted or rebutted, clarified or explained to enable the Investigating Prosecutor to arrive at a fair and judicious resolution of the case. In such a case, the period for the submission of reply affidavits or rejoinders shall in no case exceed five (5) days unless a longer period is authorized by the Provincial/City Prosecutor concerned. SEC. 27. Clanficatory questions. - The Investigating Prosecutor may set a hearing to propound clarificatory questions to the parties or their witnesses if he believes that there are matters which need to be inquired into personally by him. In said hearing, the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine. If they so desire, they may submit written questions to the Investigating Prosecutor who may propound such questions to the parties or witnesses concerned. 57 The Investigating Prosecutor shall make a record of the questions asked and answers given during the clarificatory questioning which shall be signed by the parties concerned and/or their respective counsel. Said notes shall form part of the official records of the case. Parties who desire to file a petition for review of the Investigating Officer's resolution may, at their option, cite specific portions of the oral testimony by reference to the transcript of stenographic notes. Said notes shall only be transcribed in cases of appeal and shall be obtained at the expense of the interested party. SEC. 28. Submission of case for resolution. - The Investigating Prosecutor shall case submitted for resolution: a) when the respondent cannot be subpoenaed or, if subpoenaed, does not submit his counteraffidavit within the reglementary period. In such a case, the Investigating Prosecutor shall base his resolution on the evidence presented by the complainant; 58 or b) upon submission by the parties of their respective affidavits and supporting proof or documents, in which event, he shall, upon the evidence thus adduced, determine whether or not there is sufficient ground to hold the respondent for trial 59 SEC. 29. Lack of probable cause.- If the Investigating Prosecutor does not find sufficient basis for the prosecution of the respondent, he shall prepare the resolution recommending the dismissal of the complaint. SEC. 30. Finding of probable cause. - If the Investigating Prosecutor finds that probable cause exists, he shall prepare the resolution and the corresponding information or complaint in the appropriate cases. Where the respondent is a public officer or employee or a member of the Philippine National Police (PNP), the Investigating Prosecutor shall also determine whether or not the offense with which he is charged was committed in relation to his office and, if so committed, such fact should be alleged in the information to be filed with the Sandiganbayan through the Ombudsman 60 SEC. 31. Reopening of investigation.- After a case under preliminary investigation has been submitted for resolution under the provisions of the preceding Section but before promulgation of the resolution, the preliminary investigation may be reopened for the purpose of receiving new and/or additional evidence upon the prior authorization given by the Provincial/City Prosecutor concerned or upon motion of the Sec. 3(e), Rule 112, supra. Secs. 3 (d) & (f), Rule 112, ibid. 59 Sections 3(d) & (f), Rule 112, ibid. 60 Republic vs. Maximiano Asuncion, G.R. No. L-108208, March 1994. 57 58

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interested party, Provided, That in the latter case, it shall be subject to the following conditions: a) the motion is verified and a copy thereof furnished the opposing party; b) the motion is accompanied with the new and/or additional evidence; and c) the motion sufficiently and satisfactorily shows valid and justifiable reason for the failure of the movant to submit the new and/or additional evidence during the preliminary investigation proceedings. SEC. 32. Cases Transmitted by the Municipal Trial Judge. - Upon receipt of the records of the case from the Municipal Trial Court or Municipal Circuit Trial Court which conducted the Preliminary Investigation, the Prosecution Office shall review the case based on the existing records, without requesting the parties to submit memorandum of authorities ,61 and may affirm, modify or reverse the finding of the Municipal Trial Court judge. However, if the interest of justice so requires, the prosecutor may conduct a full blown reinvestigation giving the parties the opportunity to submit additional evidence, and thereafter, resolve the case on the basis of the totality of the evidence thus adduced. SEC. 33. Memoranda. - The Investigating Prosecutor shall not require nor allow the filing or submission by the parties of memoranda unless the case involves difficult or complicated questions of law or of fact. In any event, the filing of memoranda by the parties shall be done simultaneously and the period therefore shall not exceed ten (10) days, unless a longer period is authorized by the Provincial/City Prosecutor concerned. SEC. 34. Period for resolving a case. - The Investigating Prosecutor shall resolve the case within ten (10) days from the time the case is deemed submitted for resolution, 62 unless otherwise provided herein or a longer period is authorized by the Provincial/City Prosecutor concerned. SEC. 35. Form of resolution and number of copies.- The resolution shall be written in the official language, personally and directly prepared and signed by the Investigating Prosecutor. It shall be prepared in as many copies as there are parties, plus three (3) additional copies. SEC. 36. Contents of the resolution. - A resolution shall contain a caption and a body. SEC. 37. Caption of resolution. - The caption of the resolution shall indicate the: a) names of all the complainants and all of the respondents; b) Case Number, otherwise known as the Investigation Slip Number or 1.8. No.; c) the offense charged; d) the date of the filing of the complaint with the office; e) the date of the assignment of the case to or receipt of the case record by the Investigating Officer; and f) the date the case was submitted for resolution. SEC. 38. Names of parties. - The complete names of all the complainants and respondents in the case shall be set out in the caption of the resolution. It is not proper to use the phrase "et. al." to refer to other complainants and respondents. The name of the victim or injured party, not their representative, shall appear in the caption. In cases referred to the prosecution by the police where there is no identified victim, as in prohibited drugs cases, the complainant shall be the police station involved, followed by the name and designation of the police officer representing the police station. In homicide or murder cases, the name of the victim or of the complainant shall be in the caption. The heirs or relatives of the slain victim shall be indicated as "Legal heirs of deceased (name or person killed)", represented by "(either the surviving spouse, father or mother)". In the case of a corporation or judicial entity, its corporate name or identity shall be indicated and written as follows. " 'X' Corporation, represented by its (position title), (name of corporate officer)". 61 62

Department of Justice Memorandum Circular No.7, s.1988. Sec. 3(f), Rule 112, supra.

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SEC. 39. Case number. - The number of a case shall indicate the year and month; it was filed and its entry number in the log book of the office, e.g. 97 (year)A(month)-024(entry number). SEC. 40. Designation of offense charged. - For offenses that are punishable under the Revised Penal Code, the caption shall set forth the denomination of the offense and the specific article and paragraph of the statute violated. Where there is another charge or countercharge in the same case having one case number or in case of a consolidated resolution involving two or more criminal cases with two or more docket numbers, the caption shall also contain said information. SEC. 41. Contents of body of resolution. - In general, the body of resolution should contain: a) a brief summary of the facts of the case; b) a concise statement of the issues involved; and c) the findings and recommendations of the Investigating Prosecutor. All material details that should be found in the information prepared by the Investigating Prosecutor shall be stated in the resolution. SEC. 42. Parts of a resolution. - As a rule, the body of a resolution is made up of four parts, namely: a) Part 1 shall state the nature of the case as disclosed in the evidence presented by the complainant such as his affidavit-complaint, the affidavit of witnesses and documentary and physical evidence. The affidavits shall be numbered in the order of the presentation of the prosecution witnesses as disclosed in the list of witnesses appearing in the information. As for the documentary evidence, they shall be alphabetically marked as they would be marked during the pre-trial and trial stages of the case. b) Part 2 shall contain the version of complainant of the incident. The presentation of the complainant's case should be concise and shall not be cluttered with details that are not necessary to show the elements of the offense. c) Part 3 shall allege the respondent 1s version of the incident. This must also be concise. d) Part 4 shall contain the discussion, analysis and evaluation by the prosecutor of the evidence presented by the complainant and the respondent, without relying on the weakness of the defense of the respondent. It shall also contain the conclusion of the prosecutor. The complainant's and respondent's versions of the incident need not be repeated in this part except to point out excerpts relating to the existence or absence of the elements of the crime. Citations of pertinent laws and jurisprudence should support the conclusions reached. Where numerical values are important, the number shall be written in words and figures. SEC. 43. How recommended hail is written. - The bail recommended in the resolution shall be written in words and figures. SEC. 44. Recommended bail. - The bail recommended in the resolution shall be stated in the information, written in words and figures, and initialed by the investigating prosecutor. SEC. 45. Parties to be furnished with a copy of the resolution. - The complete names and addresses of the complainant and the respondent shall be set out at the end of the resolution after the signature of the investigating prosecutor and the head of the Prosecutor's Office concerned under the phrase: "Copy furnished:". If the parties are represented by counsel and the latter's appearance is entered formally in the record, 63 the counsel, not the party, shall be given a copy of the resolution. SEC. 46. Signature and initials of investigating prosecutor. - The investigating prosecutor shall sign the resolution and if the resolution consists of two or more pages, the prosecutor shall initial all of said pages, 63

Note: A special appearance does not qualify. Page 23 of 35

excluding the signature page. SEC. 47. Records of the case. - The investigating fiscal shall forward his resolution, together with the complete records of the case, to the Provincial or City Prosecutor or Chief State Prosecutor concerned within five (5) days from the date of his resolution. 64 SEC. 48. Action of the Provincial or City Prosecutor or Chief State Prosecutor on resolution. - The Provincial or City Prosecutor or Chief State Prosecutor concerned shall act on all resolutions within ten (10) days from receipt thereof by either approving or disapproving the resolution or returning the same to the investigating prosecutor for further appropriate action.' 'immediately after approving or disapproving the resolution, the Provincial or City Prosecutor or Chief State Prosecutor concerned shall transmit a copy of the resolution to the parties. SEC. 49. Reversal by the Provincial or City Prosecutor or Chief State Prosecutor of resolution of investigating prosecutor. - If the Provincial or City Prosecutor or Chief State Prosecutor reverses the recommendation in the resolution of the investigating prosecutor, the former may, by himself, file the corresponding information or direct any other assistant prosecutor or state prosecutor, as the case may be, to do so without need of conducting another preliminary investigation. SEC. 50. Approval of pleading by head of prosecution office. - A pleading prepared by the trial prosecutor, including exparte motions, shall not be filed in court without the prior written approval by the Provincial or City Prosecutor or Chief State Prosecutor, as the case may be, of said pleading. SEC. 51. Motion for reinvestigation, where filed. - Before the arraignment of the accused, a motion for reinvestigation of the case may be filed with the City/Provincial Prosecutor, Provided, That when the case has been appealed to the Regional State Prosecutor or the Department of Justice, such motion may be filed, respectively, with the said offices. After arraignment, said motion may only be filed with the judge hearing the case. SEC. 52. Confidentiality of resolutions. - All resolutions prepared by an Investigating Prosecutor after preliminary investigation, whether his recommendation be for the filing or dismissal of the case, shall be held in strict confidence and shall not be made known to the parties, their counsel and/or to any unauthorized person until the same shall have been finally acted upon by the Provincial/City Prosecutor or his duly authorized assistant and approved for promulgation and release to the parties. Violation of the foregoing shall subject the Investigating Prosecutor or the employee of the office concerned to severe disciplinary action. SEC. 53. Information/Complaint.- The information/complaint shall be personally and directly prepared by the Investigating Prosecutor or such other prosecutor designated for the purpose and signed by him or the complainant, as the case may be. It shall state and contain, in addition to the requirements of the Rules of Court on the sufficiency of the allegations in an information or complaint, the following: a) the full name and aliases, if any, and address of the accused; b) the age and date of birth of the complainant or the accused, if eighteen (18) years of age or below; c) the full names and addresses of the parents, custodian or guardian of the minor complainant or accused, as the case may be; d) the place where the accused is actually detained; e) the full names and addresses of the complainant and witnesses; f) a detailed description of the recovered items, if any; g) the full name and address of the evidence custodian; and h) the bail recommended, if the charge is bailable. The Investigating Prosecutor shall certify under oath that he or, as shown by the record, an authorized officer, had personally examined the complainant and his witnesses; that there is reasonable ground to 64

Sec. 4, par.1,Rule 112, supra.

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believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence; and that he is filing the complaint or information with the prior authority and approval of the Provincial/City Prosecutor concerned. 65 SEC. 54. Documents to be attached to information/complaint. - An information/complaint that is filed in court shall, as far as practicable, be accompanied by a copy of the resolution of the Investigating Prosecutor, the complainant's affidavit, the sworn statements of the prosecution's witnesses, the respondent's counter-affidavit and the sworn statements of his witnesses and such other evidence as may have been taken into account in arriving at a determination of the existence of probable cause. 66 SEC. 55. Promulgation of resolution.- The result of the preliminary investigation shall be promulgated by furnishing the parties or their counsel a copy of the resolution by: a) personal service; b) registered mail with return card to the complainant, and by ordinary mail to the respondent, if the resolution is for the dismissal of the complaint; or c) registered mail with return card to the respondent, and by ordinary mail to the complainant, if the resolution is for the indictment of the respondent. SEC. 56. Motion for reconsideration. - A motion for reconsideration may be filed within ten (10) days from receipt of the resolution. The motion shall be verified, addressed to the Provincial/City Prosecutor or the Chief State Prosecutor, and accompanied by proof of service of a copy thereof on the opposing party and must state clearly and distinctly the grounds relied upon in support of the motion. A motion for reconsideration is still part of due process in the preliminary investigation. The denial thereof is a reversible error as it constitutes a deprivation of the respondent's right to a full preliminary investigation preparatory to the filing of the information against him. 67 The court therefore may not proceed with the arraignment and trial pending resolution of the motion for reconsideration. SEC. 57. Inhibition. - A Prosecutor shall inhibit himself from conducting a preliminary investigation in a case wherein a) he or his wife or child is interested as heir, legatee, creditor or otherwise; or b) he is related to either affinity or to counsel c) he has been named counsel. party within the 6th degree of consanguinity or within the 4th degree; or executor, administrator, guardian, trustee or A motion to disqualify or inhibit the Investigating Prosecutor may be filed with the City/Provincial or Chief State Prosecutor concerned for just or valid reasons other than those mentioned above. SEC. 58. Period to resolve cases under preliminary investigation. - The following periods shall be observed in the resolution of cases under preliminary investigation: a) The preliminary investigation of complaints charging a capital offense shall be terminated and resolved within ninety (90) days from the date of assignment to the Investigating Prosecutor. b) The preliminary investigation of all other complaints involving crimes cognizable by the Regional Trial Courts shall be terminated and resolved within sixty (60) days from the date of assignment. c) c) In cases of complaints involving crimes cognizable by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, the preliminary investigation - should the same be warranted by the circumstances - shall be terminated and resolved within sixty (60) days from the date of assignment to the Investigating Prosecutor. Section 4 (2) Rule 112, supra. Lim V. Felix, G. R. No.94054-57, and Fernandez V. Felix, G.R. No.94266-57, 194 SCRA 292 [1991]; See also Allado V. Diokno, 232 SCRA 192 [1994]. 67 Torralba vs. Sandiganbayan, 230 SCRA 33 [1994]. 65 66

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In all instances, the total period (from the date of assignment to the time of actual resolution) that may be consumed in the conduct of the formal preliminary investigation shall not exceed the periods prescribed herein.68 PART IV. PETITION FOR REVIEW69 SECTION 1. Subject of petition for review.- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of a Petition for Review to the Secretary of Justice except as otherwise provided in Section 4 hereof. A petition from the resolution of a Provincial/City Prosecutor where the penalty prescribed for the offense charged does not exceed prision correccional, regardless of the imposable fine, shall be made to the Regional State Prosecutor who shall resolve the petitions with finality. Such petitions shall also be governed by these rules. The provision of the preceding paragraph on the finality of the resolution of the Regional State Prosecutor notwithstanding, the Secretary of Justice may, in the interest of justice and pursuant to his residual authority of supervision and control over the prosecutors of the Department of Justice, order the automatic review by his office of the resolution of the Regional State Prosecutors in the cases appealed to the latter. SEC. 2. Period to file petition.- The petition must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. SEC. 3. Form and contents. - The petition shall be verified by the petitioner and shall contain the following: a) date of receipt of the questioned resolution; date of filing of the mot )n for reconsideration; if any; and date of receipt of the resolution on the motion for reconsideration; b) names and addresses of the parties; c) the Investigation Slip Number or I.S. No. and/or criminal case number and the title of the case; d) the venue of the preliminary investigation; e) a clear and concise statement of the facts, the assignment of errors, and the legal basis of the petition; f) in case of a finding of probable cause, that petitioner has filed in court a motion to defer further proceedings; and g) proof of service of a copy of the petition to the adverse party or his counsel and the prosecutor either by personal delivery or registered mail evidenced by the registry receipts and affidavit of mailing. The petitioner shall append to his petition copies of the material and pertinent affidavits/sworn statements (including their translations, if any, duly certified by the city/provincial prosecutor) and evidence submitted in the preliminary investigation by both parties and the questioned resolution. The prosecutor concerned shall immediately inform the Department or the Regional State Prosecutor of the action of the court on the motion to defer further proceedings. If the accused is arraigned during the pendency of the petition, the prosecutor concerned shall likewise immediately inform the Department or the Regional Stat& Prosecutor of such arraignment. SEC. 4. Cases not subject to review; exceptions.- No petition may be allowed from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Either complainant/offended party or respondent/accused may file a petition. Notwithstanding the showing of manifest error or grave abuse of 68 69

Department of Justice Circular No.24 dated 24 March 1995. Department Order No.223 dated June 30,1993 as amended by DO No.359 dated October 17, 1995.

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discretion no petition shall be entertained where the accused had already been arraigned. Once arraigned, the petition shall be dismissed motu proprio by the Secretary of Justice. SEC. 5. Answer.- Within a non-extendible period of fifteen (15) days from receipt of a copy of the petition, the respondent may file a verified answer indicating therein the date that the copy of the petition was received with proof of service of the answer to the petitioner. If no answer is filed, the case shall be resolved on the basis of the petition. SEC. 6. Withdrawal of petition.- The petition may be withdrawn at any time before it is finally resolved, in which case the questioned resolution shall stand. SEC. 7. Motion for reinvestigation.- At any time after the filing of the petition and before its resolution, the petitioner may, with leave of court, file a motion for reinvestigation on the ground that new and material evidence has been discovered which petitioner could not, with reasonable diligence, have discovered during the preliminary investigation and which if produced and admitted would probably change the resolution. The Department or the Regional State Prosecutor, as the case may be, shall then issue a resolution directing the reinvestigation of the case, if still legally feasible. When reinvestigation is granted, it shall take place in the Office of the Prosecutor from which the petition was taken. SEC. 8. Disposition of petition.- The Secretary of Justice or the Regional State Prosecutor may reverse, affirm or modify the questioned resolution. They may, motu proprio or on motion of the petitioner, dismiss outright the petition on any of the following grounds: a) b) c) d)

that the offense has prescribed; that there is no showing of any reversible error; that the procedure or requirements herein prescribed have not been complied with; that the questioned resolution is interlocutory in nature, except when it suspends the proceedings based on the alleged existence of a prejudicial question; or e) that other legal or factual grounds exist to warrant a dismissal. SEC. 9. Motion for Reconsideration.- The aggrieved party may file a motion for reconsideration within a non-extendible period of ten (10) days from receipt of the resolution on the petition, furnishing the adverse party or his counsel and the prosecutor with copies thereof. No second motion for reconsideration shall be entertained. SEC. 10. Effect of filing of petition. - A petition for review, motion for reconsideration/reinvestigation from a resolution finding probable cause shall not hold the filing of the information in court. Pending resolution of the Petition for review, the accused is entitled to a suspension of the proceedings, to the holding in abeyance of the issuance of warrant of arrest, and deferment of the arraignment. 70

PART V. BAIL71 SECTION 1. Bail defined. - Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. 70

Like a motion for reconsideration of the resolution of the City/Provincial Prosecutor, the right to a petition for review is a part of due process. Notwithstanding the ruling in Crespo vs. Mogul (151 SCRA 463 [1987]), the Court may not proceed with the criminal proceedings until after the resolution of the Regional Prosecutor or of the Secretary of Justice shall have become final, and the corresponding motion has been filed in Court by the trial prosecutor to withdraw or dismiss the information or to proceed with the trial as the case may be, per findings in the petition for review. (See Roberts; Jr. et al. vs. C.A. et al., 254 SCRA 307 [1996]). 71 Rule 114, Rules on Criminal Procedure, as amended by Supreme Court Administrative Circular No.12-94 dated August 16, 1994. Page 27 of 35

SEC. 2. Nature of right to bad.- The right to bail is guaranteed by the Constitution. It is the duty of the prosecutor to recommend such amount of bail to the courts of justice as, in his opinion, would ensure the appearance of an accused person when so required by the court. 72 SEC. 3. Non-bailable offense. - No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. SEC. 4 Criteria in recommending amount of bail. - In recommending the amount of bail to be granted by the court, the prosecutor shall take into consideration the following standards and criteria: a) b) c) d) e) f)

financial ability of the respondent/accused to post bail; nature and circumstances of the offense; penalty for the offense charged; age, state of health, character and reputation of the respondent/accused under detention; weight of the evidence against the respondent/accused under detention; forfeiture of other bonds and pendency of other cases wherein the respondent/accused under detention is under bond; g) the fact that respondent/accused under detention was a fugitive from justice when apprehended; and h) other factors affecting the probability of the accused appearing at the trial. 73 SEC. 5. Burden of proof in bail application. - At the hearing of an application for admission to bail filed by any person who is in custody for the commission of an offense punishable by death, reclusion perpetual or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearings shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall any witness for additional examination unless the witness is dead, outside of the Philippines or otherwise unable to testify. SEC. 6. Recognizance. - Whenever allowed pursuant to law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person. SEC. 7. Bail, when not required; reduced bail or recognizance. - No bail shall be required when the law or the Rules issued by the Supreme Court so provide 74. When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceedings on appeal. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. SEC. 8. Notice of application for hail to prosecutor. - In an application for bail, the court shall give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation. SEC. 9. Cancellation of hail bond. - Upon application filed with the court and after due notice to the prosecutor, the bail bond may be canceled upon surrender of the accused or proof of his death. The bail bond shall be deemed automatically canceled upon acquittal of the accused or dismissal of the case or execution of the final judgment of conviction. Department of Justice Circular No.36, Sept. 1, 1981. Sec. 6, Rule 114, supra; Department of Justice Circular No.4, series of 1996, effective 1 February 1996. 74 See RA 6036 and Rules on Summary Procedure; Art. 29, Revised Penal Code; BP BIg 85 [1980]; Sec. 13, Rule 114, ibid. 72 73

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In all instances, the cancellation shall be without prejudice to any liability on the bond. SEC. 10. Arrest of accused out on hail. - For the purpose of surrendering the accused, the bondsmen may arrest him, or on written authority endorsed on a certified copy of the undertaking may cause him to be arrested by any police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the court where the case is pending. SEC. 11. No had after final judgment, exception. - An accused shall not be allowed bail after the judgment has become final, unless he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the Probation Law. In case the accused has applied for probation, he may be allowed temporary liberty under his bail bond, but if no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance under the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence. SEC. 12. Rules in computing the bail to be recommended. - To achieve uniformity in the amount of bail to be recommended, the following rules shall be observed: 1) Where the penalty is reclusion perpetua, life imprisonment, reclusion perpetua to death or death, bail is not a matter of right; hence, it shall not be recommended. 2) Where bail is a matter of right and the imposable penalty is imprisonment and/or fine, the bail shall be computed on the basis of the penalty of imprisonment applying the following rules: i) ii) iii) iv) v)

where the penalty is reclusion temporal (regardless of period) to reclusion perpetua, bail shall be computed based on the maximum of reclusion temporal. where the imposable penalty is correccional or afflictive, bait shall be based on the maximum of the penalty, multiplied by P2,000.00. A fraction of a year shall be rounded-off to one year. for crimes covered by the Rules on Summary Procedure and Republic Act No. 6036, bail is not required except when respondent/accused is under arrest, in which case, bail shall be computed in accordance with this guideline. iv for crimes of reckless imprudence resulting in homicide arising from violation of the Land Transportation and Traffic Code, bail shall be P30,000.00 per deceased person. for violation of Batas Pambansa Blg. 22, bail shall be 50% of the amount of check but should not be less than P2,000.O0nor more than P30,000.00.

Where the imposable penalty is only a fine, bail shall be computed as follows:

i) fine not exceeding P2,000.00,bail is not required. ii) fine of more than P2,000.00,bail shall be 50% of the fine but should not exceed P30,000.00. iii) in case of reckless imprudence resulting to damage to property, bail shall be three-eighths (3/8) of the value of the damage but not exceeding P30,OOO.OO except when covered by the Rules on Summary Procedure. 1) Bail based on the maximum penalty, multiplied by P1O,OOO.OO,shall be applied to the following offenses under the following laws: a) Republic Act No.6425 (Dangerous Drugs Act), as amended by RA 7659; b) Republic Act No.6539 (Anti-Carnapping Act), as amended by RA 7659; c) Republic Act No.7659 (for other crimes covered by it); d) Presidential Decree No. 186 (Illegal Possession of Firearms, Ammunition or Explosives), as amended by RA 8294; e) Republic Act No. 1937 (Tariff and Customs Code), as amended; or f) Rebellion, insurrection or Coup d'etat as amended by Republic Act No.6968.

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SEC. 13. Petition for bail in a continuous trial. - In case a petition for bail is filed by the accused and the court orders a continuous trial of the case, the public prosecutor shall be prepared with his principal witnesses. Where there are several accused and one or two filed a petition to bail, the trial prosecutor shall, before the presentation of his first witness, manifest in open court that the evidence to be presented in the hearing of the petition for bail shall be adopted as its evidence-inchief. PART VI. ARREST SECTION 1. Definition of probable cause as a ground for an arrest or issuance of a warrant of arrest . Probable cause is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 75 SEC. 2. Remedy if no warrant of arrest is issued by the investigating judge . -If the investigating judge is satisfied that there is probable cause but did not issue the warrant of arrest contrary to the prosecutor's belief that there is a need to place the accused under custody, the speedy and adequate remedy of the prosecutor is to immediately file the information so that the Regional Trial Court judge may issue the warrant for the arrest of the accused. 76 SEC. 3. Request for a copy of the return. - If a warrant of arrest has been issued, the prosecutor may request the warrant officer that he be furnished with the officer's return relative thereto. The prosecutor shall, as far as practicable, coordinate with the witnesses from time to time to ascertain the whereabouts of the accused pending the latter's arrest. PART VII. ARRAIGNMENT AND PLEA SECTION 1. Concept of arraignment. - Arraignment is a mandatory requirement that seeks to give the accused the opportunity, at the first instance, to know why the prosecuting arm of government has been mobilized against him and to plead. At the arraignment, the accused may enter a plea of guilty or not guilty. SEC. 2. Duties of trial prosecutor. a) Before the arraignment of the accused, the trial prosecutor shall examine the information vis-a-vis the resolution of the investigating prosecutor in order to make the necessary corrections or revisions and to ensure that the information is sufficient in form and substance. b) After arraignment, the trial prosecutor shall prepare his witnesses for trial. Government witnesses, e.g. medico-legal officer, chemist, forensic experts, examiners etc. should, as much as practicable, be presented in accordance with the logical a~d chronological sequence of the technical aspects to be proved. SEC. 3. Effect of filing a petition for review. - When an aggrieved partymanifests in court that he has a pending petition for review with the Department of Justice and moves for a deferment of the arraignment pending resolution of his petition, the Trial Prosecutor may conform thereto once proof of said petition has been presented by the petitioner to his satisfaction. SEC. 4. Concept of plea. - The plea is the reply of the accused to the charge. It raises the issue to be tried and on which the judgment/sentence of the court can be properly based. PART VIII. PRE-TRIAL77 SECTION 1. Concept of pre-trial. - A pre-trial is a process whereby the accused and the prosecutors in a Bemas, The Constitution of the Republic of the Philippines, a Commentary, Vol. I, First Ed., 1987, pp.86-87 cited in Department Circular No.24, dated March 24 1995. 76 Samulde vs. Salvani,Jr., 165 SCRA 724 [1988]. 77 Rule 118, Rules on Criminal Procedure. 75

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criminal case work out, usually at the arraignment stage, a naturally satisfactory disposition of a case subject to court approval in order to expedite the trial of the case. 78 The prosecutor shall enter into a pre-trial only when the accused and counsel agree and upon order of the court. SEC. 2. Duties of prosecutor before and after the pre-trial conference. -Before the pre-trial conference, the prosecutor should know every fact and detail of the case. This can be accomplished by interviewing the complainant and other witnesses and after a thorough examination of the available documentary and other physical evidence. The prosecutor should place importance ';;n the testimony of the expert witness. The knowledge that the prosecutor will gain from said witness will help him determine the procedures undertaken in the examination of a subject or thing; the scientific or technical terms applied, and the reason/s in arriving at a certain conclusion. During the pre-trial process, the prosecutor shall bear in mind that he has to prove his case beyond a reasonable doubt and that every act or incident should be proved by the testimony of qualified and competent witnesses. After the pre-trial conference, the prosecutor shall ensure that any agreement or admission made or entered therein is in writing and signed by the accused and his counsel. SEC. 3. Subject matters ofpre-tn.al. - The pre-trial conference shall consider the following: a) Plea bargaining - This is a process where the defendants usually plead guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge79; b) Stipulation of facts- This is the agreement of the parties on some facts admitted, some facts covered by judicial notice (Sec. 1, Rule 129), judicial admissions (Sec. 2 Rule 129), or on matters not otherwise disputed by them. In cases requiring the presentation of government witnesses or evidence, the Trial Prosecutor should exert every effort to secure a waiver by the accused of objections to the admissibility of certain documentary evidence, e.g., medical or death cenificare, necropsy report, forensic chemistry report, ballistics report, PhilippineOverseas and Employment Administration (POEA) Certification, and the like, if such evidence has no relevance whatsoever to the theory of the defense, in order to d~spense with the presentation and testimony in court of government witnesses. Whenever appropriate or necessary, the counter-affidavit of the accused submitted luring the preliminary investigation may be resorted to or availed of to denions~rate or establish the defense theory; c) Marking of documentary evidence in advance for identification; d) Waiver in advance of objections to admissibility of evidence; e) List of witnesses to be presented which should be qualified by the following statement: "that other witnesses may be presented in the course of the trial"; and f) Such other matters as will promote a fair and expeditious trial. SEC. 4. Plea of guilty to a lesser offense. - The following rules shall apply to cases where the accused pleads guilty to a lesser offense: a) The Trial Prosecutor shall immediately move for the suspension of the proceedings whenever the accused manifests his intention in court to plead guilty to a lesser offense. This will enable the Trial Prosecutor to evaluate the implications of the offer. b) If the lesser offense to which the accused will plead guilty is not a capital offense, the Trial Prosecutor may dispense with the presentation of evidence unless the court directs otherwise. c) The Trial Prosecutor, with the consent of the offended party, may motu propno agree to the offer of the accused to plead guilty to a lesser offense if the penalty imposable therefor is prision correcional 78 79

Black's Law Dictionary, 5th Ed. 1979, p.1037. ibid, p.1037.

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(maximum of six [61 years) or less or a fine not exceeding P12,OOO.OO. d) When the penalty imposable for the offense charged is prision mayor (at least six [6] years and one [11 day or higher) or a fine exceeding ~12,OOO.OO, the Trial Prosecutor shall first submit his comment/recommendation to the City or Provincial Prosecutor or to the Chief State Prosecutor, as the case may be, for approval. If the recommendation is approved in writing, the Trial Prosecutor, may, with the consent of the offended party, agree to a plea of guilty to a lesser offense. For this purpose, the Chief State Prosecutor or the Provincial or City Prosecutor concerned shall act on the recommendation of the Trial Prosecutor within forty-eight (48) hours from receipt thereof. In no case shall the subject plea to a lesser offense be allowed without the written approval of the above respective heads of office. e) In all cases, the penalty for the lesser offense to which the accused may be allowed to plead guilty shall not be more than two (2) degrees lower than the imposable penalty for the crime charged, notwithstanding the presence of mitigating circumstances. The lesser offense shall also be one that is necessarily related to the offense charged or the offense must belong to the same classification or title under the Revised Penal Code or the relevant special laws. 80 However, the plea of guilty to a lesser offense may not be allowed where it so contravenes lo~ nd common sense as to be unconscionable, thereby resulting in us, where the offense charged is homicide, a plea of guilty to a lesser offense of frustrated or attempted homicide, may not be allowed, since the fact of death cannot be reconciled with the plea of guilty to frustrated or attempted homicide. Homicide necessarily produces death, while frustrated or attempted homicide does not. 81 SEC. 5. when accused pleads guilty to a capital offense. - If the accused pleads guilty to a capital offense, the Trial Prosecutor must present evidence to prove the guilt of the accused and the precise degree of his culpability. This is mandatory. PART IX. TRIAL' SECTION 1. Definition of trial. - A trial is a judicial examination of the claims at issue in a case which are presented by the prosecution and defense to enable the court to arrive at a judgment pronouncing either the guilt or innocence of the accused.2 SEC. 2. Concept of trial. - The object of a trial is to mete out justice, and to convict the guilty and protect the innocent. Thus, the trial should be a search for the truth and not a contest over technicalities and must be conducted under such rules as will protect the innocent. 3 SEC. 3. Expeditious prosecution of criminal cases filed with the courts. -The Trial Prosecutor shall always be prepared to conduct the prosecution with his witnesses who shall be subpoenaed well in advance of the scheduled trial dates.4 No postponement of the trial or other proceedings of a criminal case shall be initiated or caused by the Trial Prosecutor except in instances where the postponement is occasioned by the absence of material witnesses or for other causes beyond his control or not attributable to him. SEC. 4. Order of presentation of witnesses. a) The order in the presentation of witnesses will be left to the discretion of the Trial Prosecutor. However, the prosecutor should take into consideration the order of events as established by the evidence of the prosecution. b) Witnesses who will testify for the first time shall be afforded the opportunity to be advised to observe criminal proceedings in court to help them overcome their anxiety, excitement and tension. SEC. 5. Preparation of formal offer of exhibits. - The Trial Prosecutor shall safely keep his documentary and other physical evidence and prepare a list thereof in the order they have been marked as exhibits, identifying each by letter or number, describing it briefly, and stating its specific purpose or purposes. SEC. 6. Defense evidence. 80 81

Department of Justice Circular No.55, dated 31 July 1990. Amatan vs. Aujero 248 SCRA 511(1995). Page 32 of 35

a) Before reception of evidence for the defense starts, the Trial Prosecutor shall ask from the adverse counsel the number of witnesses he intends to present. b) If the names of defense witnesses are disclosed the Trial Prosecutor shall elicit from reliable sources the whereabouts of these witnesses, their moral character,, background, reasons for testifying and relationship with the accused, among other things, to enable him to have a clear view of the defense of the accused. SEC. 7. Discharge of accused to he state witness. - When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state provided the court, after hearing, is satisfied that: a) There is absolute necessity for the testimony of the accused whose discharge is requested. b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused,6 as when he alone has knowledge of the crime, and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution;7 c) The testimony of said accused can be substantially corroborated in its material points. This is an indispensable requirement because it is a notorious fact in human nature that a culprit, confessing to a crime, is likely to put the blame on others rather than himself. Thus, even though a court may get the statement of a discharged accused that other particular persons were engaged in the crime, it is unsafe to accept without corroborating evidence, his statements concerning the relative blame to be attached to different members of his gang; d) Said accused does not appear to be the most guilty.9 The mere fact that the witness sought to be discharged had pleaded guilty In the crime charged does not violate the rule that the discharged defendant must not "appear to be the most guilty”. And even if the witness should lack some of the qualifications enumerated by Sec. 9, Rule 119, his testimony will not, for that reason alone, be discarded or disregarded.10 The ground underlying the rule is not to let a crime that has been committed go unpunished; so an accused who is not the most guilty is allowed to testify against the most guilty, in order to achieve the greater purpose of securing the conviction of the more or most guilty and the greatest number among the accused permitted to be convicted for the offense they committed.'' However, although an accused did not commit anv of the stabbing, it is a mistake to discharge him as a state \witness where he is bound in a conspiracy. All the perpetrators of the offense bound in conspiracy are equally guilty. Said accused has not at any time been convicted of any offense involving moral turpitude. Evidence adduced in support of the discharge sha11 automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. SEC. 8. Witness protection. - An accused who is discharged from an information or criminal complaint in order that he may be a state witness as provided in the preceding section may, upon his petition, be admitted to the Witness Protection Program under R.A. No.6981, "The Witness Protection, Security and Benefit Act" if he complies with the other requirements of said Act. SEC. 9. Other persons who may avail of the Witness Protection Program. -The following may also avail of the Witness Protection Program under R.A. No. 6981: a) Any person who has witnessed or has knowledge of or information on the commission of a crime and has testified or is testifying or is about to testify before any judicial or quasijudicial body, or before any investigating authority, Provided, that: i)

the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws;

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ii) his testimony can be substantially corroborated on its material points; iii) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely or evasively, because or on account of his testimony; and iv) he is not a law enforcement officer, even if he would be testifying against other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under the Act. b) Any person who has participated in the commission of a crime and desires to be a witness for the State, whenever the following circumstances are present: i) ii) iii) iv) v) vi)

the offense in which testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws; there is absolute necessity for his testimony; there is no other direct evidence available for the proper prosecution of the offense committed; his testimony can be substantially corroborated on its material points; he does not appear to be the most guilty; and he has not at any time been convicted of any crime involving moral turpitude.

SEC. 10. Motions for postponement of accused. - Motions for postponement that are initiated by the accused should be vigorously opposed by the Trial Prosecutor and he should make of record his objections thereto, leaving to the court's discretion the disposition of the subject motions.' 3 SEC. 11. Discontinuance of proceedings. - During the presentation of the prosecution's evidence, the Trial Prosecutor shall not cause or allow the discontinuance of the proceedings except for other similarly compelling reasons not attributable to him. 14 SEC. 12. Presentation of evidence. - Each party is bound to complete the presentation of his evidence within the trial dates assigned to him. After the lapse of said dates, the party is deemed to have completed his evidence presentation. However, upon verified motion based on serious reasons, the judge may allow the party additional trial dates in the afternoon; provided that said extension will not go beyond the threemonth limit computed from the first trial date. Where a Trial Prosecutor, without good cause, secures postponements of the trial over the objections of a defendant beyond a reasonable period of time, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom. SEC. 13. Order of trial.- Upon receipt of the notice of trial, the prosecutor shall review the record of the case for trial and complete his preparation therefore bearing in mind that trial, once commenced, may continue from day to day until terminated, and that trial shall proceed in the following order pursuant to Sec. 3, Rule 119 of the Rules of Criminal Procedure: a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda. e) However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly. SEC. 14. Presentation of witnesses.- The order in the presentation of witnesses shall, as far as practicable, conform to he logical sequence of events obtaining in the case on trial in order to present a

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clear, organized and coherent picture to the court of the prosecution's evidence. For example, in the case of prosecution under the Dangerous Drugs Law, the Trial Prosecutor should present the forensic chemist who examined the dangerous drug ahead of the other witnesses in order that the court may at once have a view of the real evidence (either the prohibited or regulated drug subject of the case) and so that such evidence may immediately identified by the other witnesses thus avoiding the recall of witnesses later on. The rule of logical sequencing notwithstanding, a witness whose testimony is vital to the case and whose life is in danger or who may be sick/injured arid may possibly die, should be made to testify as early as practicable. SEC. 15. Examination of witnesses for the prosecution.-Where it shall satisfactorily appear that the witness for the prosecution is too sick or infirm to appear at the trial as directed by order of the court, or has to leave the Philippines with no definite date of returning thereto, he may forthwith be conditionally examined before the judge or the court where the case is pending. Such examination in the presence of the accused, or after reasonable notice to attend the examination has been served on him, will be conducted in the same manner as an examination at the trial. Failure or refusal on the part of the accused to attend the examination after notice herein before provided, shall be considered a waiver. The statement thus taken may be admitted on behalf of or against the accused. SEC. 16. Cross-Examination of defense witnesses. The prosecutor shall endeavor to secure well in advance all available information about a defense witness in order to prepare for an effective crossexamination. Where the testimony of a defense witness bears no effect on the evidence of the prosecution, a cross-examination need not be conducted. SEC. 17. Rebuttal evidence.- The presentation and nature of rebuttal evidence will depend on the effect which the defense evidence may have caused on the prosecution's evidence-in-chief. The recall of a witness who already testified during the evidence-in-chief presentation merely to refute what a defense witness may have stated during his defense testimony is not generally a rebuttal evidence. \Where there is nothing to refute, rebuttal evidence is unnecessary.

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