Article 54p. 54

SPECIAL RULES OF PROCEDURE SUPPLEMENT TO THE RULES OF COURT

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’s 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.

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.

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 subpoenas-

a)

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 be 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

49 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,

© Compiled By RGL

54 of 98