RULE 117

MOTION TO QUASH
Section 1. Time to move to quash. -At any time before
entering his plea, the accused may move to quash the
complaint
or information. (1)

WHATISS
MOTION TO QUASH?
Motion to quash is the mode by which an accused assails
As validity of a criminal complaint or Information filed
against him for insufficiency on its face in point of law, or for
defects which are apparent in the face of the Information.48
It is a hypothetical admission of the facts alleged in the
infomation. The fundamental test in determining the sufficiency
of the material averments in an Information is whether or not
the facts alleged therein, which are hypothetically admitted,
NOuld establish the essential elements of the crime defined by
law. Evidence aliunde or439matters extrinsic of the information
are not to be considered.

BASIS OF MOTION TOQUASH

A motion to quash should be based on a defect in the
information which is evident on its fact. Thus, if the defect
can be cured by amendment or if it is based on the ground that
the facts charged do not constitute an offense, the prosecution
IS given by the court the opportunity to correct the defect by
amendment. If the motion to guash is sustained, the court may
order that another complaint or information be filed except

Antone vs.
Beronilla, G.R. No. 183824, December 8, 2010, citing Javier vs.
439 Sandiganbayan, G.R. Nos. 147026-27, September 11, 2009.
People vs. Odtuhan, G.R. No. 191566, [July 17, 20131.

291
 RULES ON CRIMINAL
PROCEDURE RULE 117
293
292 ANNOTATED Motion to Quash

when the information is quashed on the ground of extinction (a) That the facts charged do not constitute an offense;
440
jeopardy.
ofcriminal liability or double (b) That the court trying the case has no jurisdiction
ACCUSED MOVE TO QUASH Over the offensee charged;
WHEN MAY THE THE
COMPLAINT OR INFORMATION?
(c) That the court trying the case has no jurisdiction
move to quash the over the person of the accused:
his plea complaint or
The accused may
(d) Thatthe officer who filed the information had no
information at any time before entering
authority to do so;
Section 2. Form and contents. - The motion to quash shal
accused or bis counsel
(e) That it does not conform substantially to the
be in writing, signed by the and prescribed form:
shall distinctly specify its factual and legal grounds
court shall consider no ground other than those stated in () That mnore than one offense is charged except
the motion, except lack of jurisdiction over the offense when a single punishment for various offenses is
charged. (2a) prescribed by law;

FORMS AND CONTENTS OF MOTION TO QUASH (o) That the criminal action or liability has been
extinguished;
The motion to quash shall:
(h) That it contains averments which, if true, would
1. be in writing, constitutea legal excuse or justification; and
2. signed by the accused or his counsel and ()That the accused has been previously convicted or
3. distinctily specify its factual and legal grounds. acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without
GENERAL RULE: hisexpress consent. (3a)
The court shall consider no ground other than those WHAT ARE THE GROUNDS FOR MOTION TO QUASH?
stated in the motion
EXCEPTION: 1. FACTS CHARGED DO NOT CONSTITUTE AN
OFFENSE;
lack of jurisdiction over the offense charged. The issue on how the acts or omissions constituting
Section 3. Grounds. The accused may move to quash the the offense should be made in order to meet thÃ
complaint or information on any of the following grounds: standard of sufficiency has long been settled. It is
fundamental that every element of which the offense
is composed must be alleged in the information. No
40 1hid information for a crime will be sufficient if it does
441
Section 2, Rule J17 Rules of Court.
 PROCEDURE RULE 117
RULES ON CRIMINAL 295
294
ANNOTATED
Motion to Quash

not accurately and clearly allege the clements of the instituted,but also the court that has the jurisdiction
445
crime charged442 to try and hear the case
When a motion to quash is filed challenging Subject to existing laws, the criminal action shall
validity and suficiency
of an Information, the be instituted and tried in the court or municipality or
and the
defect may be cured amendment, courts territory where the offense was committed or where
by
must denyto
the motion to quash and order the prosecution any of its essential ingredients occurred 446 The compla1nt
file an amended Information. Geenerally, a defect or information is sufficient if it can be understood
failure of an Information from its allegations that the offense was committed
pertaining to the to
facts constituting an offense is one that charge or some of its essential ingredients occurred at some
may be
corrected by an
amendment. nlace within the jurisdiction of the court, unless the
narticular place where it was committed constitutes
In suchinstances, courts are mandated not to an essential element of the offense charged or is
automatically quash the Information; rather, it should necessary for its identification.447
The venue of
grant the prosecution the opportunity to cure the defect
through an amendment. This rule allows a case 10 action and of jurisdiction are deemed sufficiently
proceed without undue delay. By allowing the defen alleged wherethe Information states that the offense
was committed or some ofits essential ingredients
to be cured by simple amendment, unnecessary appeals occurred at a place within the territorial jurisdiction
based on technical grounds, which only result to
443 of the court
prolonging the proceedings, are avoided.
If the ground is that the facts charged do not 3. THE COURT TRYING THE CASE HAS NO
constitute an offense, the trial court shall give the JURISDICTIONOVER THE PERSON OF THE
ACCUSED;
prosecution an opportunity to correct the defect by
amendment. If, despite amendment, the complaint or Jurisdiction over the person of an accused is
information still suffers from the same defect., the acquired upon either his (1) arrest or apprehension,
complaint or information shall be quashed.H with or without, or (2) his voluntary appearance or
449
submission to the jurisdiction of the court.
2. THE COURT TRYING THE CASE HAS NO
JURISDICTIONOVER THE OFFENSE CHARGED; The rule is that if the accused objects to the
It is settled that venue is an essential element
jurisdiction of the court over his person, he may
move to quash the information, but only on that
of jurisdiction in criminal cases. It determines not ground. If, as in this case, the accused raises other
only the place where the criminal action is to be
4S
Corpuz vs. People, GR No. 24|383, (June 8, 2020).
44
Section 15, Rule 110.
Deia Chica vs Sandiganbayan, GR. No. 144823, (December 8, 2003]. Section l0, Rule |10.
446
Dio vs. Peopie, G.R No. 208146, (June 8,2016]. Corpuz vs People, supra.
Osorso vs. Navera, G R.No. 223272 (Resolution), (February 26, 2018] Inocentes v People, GR Nos. 205963-64, (July 7, 2016)
 RULE 117
RULES ON CRIMINAL PROCEDURE
ANNOTATED Motion to Quash
297
296

to quash, he is from the city or provincial prosecutor

have deemed to have
prosecutor
motion
grounds in the beconsidered as among the grounds for the
and to
waived that
to the
objection
jurisdiction of the court. 4 S0 submit ed his
cannot
quashal of an Information which is non-waivable 54
person
be estopped from DOES NOT CONFORM SUBSTANTIALLY
An accused may assailinforg the 5. IT
arrest if he fails to move TO THE PRESCRIBED FORM:
illegality of his
the information against him the
quashing of
arraignment. And
since the legality of
an
before his Formal and substantial requirernents for Infomation
affects only the jurisdiction of the Court overafrest the is prescribed under Section 6to 12 of Rule I10.
accused, any defect in the arrest of
person of the MORE THAN ONE OFFENSE IS CHARGED
be deemed cured when he the
accused may
submits to the
jurisdiction of the trial court. 451 voluntarily EXCEPT WHEN A SINGLE PUNISHMENT FOR
VARIOUS OFFENSES IS PRESCRIBED BY LAW:
4. THE OFFICER WHO FILED THE INFORMATION The prohibition of filing an information with
HAD NO AUTHORITY TO DO SO: multiple offenses is predicated in the protection of
Generally. it is the public prosecutor who had the constitutional right of the accused to be properiy
the authority to file an information. The private infomed of the nature and cause of the accusation.
prosecutor may likewise be authorized in writing Section 13, Rule 110 of the Rules of Court
the Chief of the Prosecution Office or the Regionalby provides that an information must only charge one
State Prosecutor to prosecute the case subject to the offense, except only in those cases in which existing
approval of the court, in case of heavy work schedule laws prescribe a single punishment for various
of the public prosecutor. The filing of an Infomation offenses. The remedy of the accused is to move to
by an officer without the requisite authority to fle quash the information before entering his plea If
the same constitutes a jurisdictional infirmity which the accused fails to move to quash the duplicitous
cannot be cured by silence, waiver, acquiescence, or information, it would be considered as a waiver
even by express consent and such ground may be Thus, the Court could convict the accused on all the
453
raised at any stage of the proceedings. charges alleged in the information,S0
The authority of an officer filing the Infornation Further, when two or more offenses are charged
is irrelevant in relation to a trial court's power Or in a single complaint or information but the accused
authority to take cognizance of a criminal case according fails to object to it before trial, the court may
to its nature as it is determined by law. Therefore, convict him of as many offenses as are charged
absence of authority or prior approval of the handling and proved, and impose on him the penalty for each
4
Sanchez vs Demetrio, G.R. Nos. ll1771-77. (November 9, 1993).
Quianbao, Jr. vs. People, G.R. No. 211189 (Notice), [March l6, 2022]. 4 Jbid.
42 Section 5, Rule I10. WPeople vs. XXX,G.R. No. 240750 (Resolution), (June 21, 2021}.
46
* Villa Gomez vs. People, GR. No. 216824, (November 10, 2020) Ibid.
 PROCEDURE RULE 117
RULES ON NCRIMINAL 299
ANNOTATED Motion to QuAsh
298

separately the reasons of public policy and sentiment there is

out
offense, setingoffense.
each
findings of facy no penalty imposed. 4i
and law in
ACTION OR Instigationn462
THE
CRIMINAL
LIABILITY HAS
a.

B E E N E X T I N G U I S H E D :

b. Article 247 of the Revised Penal Code

deemed
Criminal liability
following instances:458
is extinguished in he
c Article 332 of the Revised Penal Code
9. THE ACCUSED HAS BEEN PREVIOUSLY
Death of the
accused, but liability for CONVICTED OR ACQUITIED OF THE OFFENSE
deathpecuniary
1.
is extinguished only if CHARGED, OR THE CASE AGAINST HIM WAS
penalties
before final judgment; occurs DISMISSED OR OTHERWISE TERMINATED
1. Service of sentence, which must be by virtue of a WITHOUT HIS EXPRESS CONSENT.
final judgment and in the form prescribed by law;, Double jeopardy exists when a person is placed in
111. Amnesty:
jeopardy of punishment for the same offense. The
test is whether one ofense is identical with the othef
iv, Absolute pardon; is an attempt to commit or a frustration thereof, or
Prescription of the crime:
whether oneoffense nccessarily includes or is necessarily
V included in the other #63
Vi. Prescription of the penalty; In order for double jeopardy to attach, the
VË. Pardon in private offenses following elements must concur: (1l) a valid information
8. IT CONTAINS AVERMENTS WHICH, IF TRUE, sufficient in form and substance to sustain a conviction
of the crime charged; (2) a court of competent
wOULD CONSTITUTE A LEGAL EXCUSE jurisdiction; (3) the accused has been arraigned and
OR JUSTIFICATION:
had pleaded; and (4) the accused was convicted or
i. Justifying circumnstances$9 acquitted or the464 case was dismissed without his
460
express consent.
ii. Exempting circumstances
The mere filing of two Information charging the
iii. Absolutory causes - An absolutory cause is present same offense is not an appropriate basis for the
'where the act committed is a crime but for invocation of double jeopardy since the first jeopardy
46 People vs. Foronda, G.R. No. 226847 (Notice), [April 1, 2019).
People vs, De Paz y Gaditano, G.R. No. I04277, [July 5, 1993).
45
Section 3, Rule 120. Merencillo vs. People, GR. Nos. 142369-70, April 13, 2007, citing Suero v. People,
Article 89, Revised Penal Code. GR. No. IS6408, January 31, 2005.
Article J1. Revised PenalCode.
461
Degamo vs. Sandiganbayan, GR. Nos. 242175-85, 242788-99, 243077-98 &247588
Article 12, Ibid. [February 22, 2023).
 ON
CRIMINAL LPROCETDURE RULE 117 301
RULES ANNOTATED
Motion to Quash
300

or not vet
set in
hastermination
by a previous
of the case without the
conviction,consent
acquit alof for good
cause, the accused, if in custody, shall be
dischargedI unless he is also in custody for another charge. (5)
allow

the accused s
6. Order sustaining the motion to quash not abar to
TAKE NOTE:
Section
prosecution; exception. - An order sustaining the
another

to quash
is not abar to another prosecution for the
that warTant the
enumerated motion

the motion was based on the grounds

1. The groundsinformation is exclusive 466 quashal offense
unless

ofa criminal Same

| in
s p e c i f i e d
section 3(g) and (i) of this Rule. (6a)
2. The absence of a preliminary investigation does
notimpairthe validity offthe infomation or otherwise EFFECT OF GRANT OF AMOTION TO QUASH
defective. Neither does it
render it
court over the case or the affect If the motion to quash is based on an alleged defect
jurisdiction of the
for quashing the information 467
Constitute of the complaint or information which can be cured
aground hy amendment, the COURT SHALL ORDER
Section 4. Amendment of the complaint or information. THAT AN AMENDMENT BE MADE.
If the motion to quash is based on an alleged defect of the Ifit is based on the ground that the facts charged do
complaint or information which can be cured by amendment, not constitute an offense, the prosecution shall be
that an amendment be made. (4a) given by the court an opportunity to correct the
the court shhall order
Ifitis based on the ground that the facts charged do not defect by amendment. The motion shall be granted if
constitute an offense, the prosecution shall be given by the the prosecution fails to make the amendment, or the
court an opportunity to correct the defect by amendment. complaint or information stillsufers from the samé
The motion shall be granted if the prosecution fails to defect despite the amendment.
make the amendment, or the complaint or information still The effect of the grant of the motion to quash
suffers from the same defect despite the amendment. (n) depends on the grounds
availed of. When the defect in the
the oonmplaint or information can be cured by amendment, the
Section 5. Efect of sustaining the motion to quash. - Ifthaf grant of
the motion to quash will result in an order directing
motion to quash is sustained, the court may order the amendment. 46s The defect pertaining to the failure of an
another complaint or information be filed except as Information to charge facts constituting an offense is one that
provided in section 6 of this rule. If the order is made. the be corrected by an amendment. In such instances, courts
accused, if in custody, shall not be discharged unless may

admitted to bail. If no order is made or if having been are mandated not to automatically quash the Intormation;
made, no new information is filed within the time specified
rather, it should grant the prosecution the opportunity to cure
in the order or within such further time as the court may the defect through an amendment."° If, despite amendment.

People vs. Pineda, G.R. No. L-44205, [February 16, 1993].

42
Galzote ySoriaga vs. Briones, G.R. No. 164682. [September 14, 2011). Osorio vs. Navera, supra
Lazaro vs. People, G.R. No. 230018, [June 23, 2021)
Villaflor vs. Vivar yGozon, GR No. 134744, [January 16, 2001l].
 CRIMINAL
PROCEDURE RULE 17
RULESON ANNOTATED
Motion to Quash 303
302

the complaint or intormation still suffers from ihe samne for good cause, the accused, if in custody. shall be
information shall be quashed.40 discharged unless he iss also in custody for another charge
complaint or
defect. the The clause "within such further time as the court may
In Propler Banabos, "1 the Supreme Court enmphasizca
that Soction 4, Rule l17 of the Rules. of Court, provides that if cause" denotes no other construction
for good than a
of time. The allowance of additional time
allow

a motion to quash is based on the ground that the facts extension

plain
charged do not constitute an oftense. the court shall give the
qualifies
the period of filing anew information pursuant to an
the defeet by
correct and not the period of issuing an order to file a new
prosccution a chance
to
states that if the amendment. information. It presupposes that an order has been previously
order,

beprOsecution
provision also
theamendment, granted. In fails signified by the prior phrase "if
toHowever,
make the the motion shall the
issucd, as
having been made."
Prosecutor insisted in limitation in the rule was intended to prevent the
the Special his Comment The time
on the case,
instant Motionto Quash that there was no defect in the accused froom being unnecessarily detained at the whim of
the prosecution.173
Information. Neither
has he filed a new information after
the
motion was sustained. pursuant to Section 5, Rule 117.Thus,
the Sand1ganbayan was correct in ordering the quashal of the ORDER SUSTAINING THE MOTION TO QUASH NOT
eventual dismissal of the case. ABAR
TO ANOTHER PROSECUTION
Information and the

EFFECT OF SUSTAINING THE MOTION TO QUASH An order sustaining the motion to quash is not a bar to
another prosecution for the same offense UNLESS THE
the court MOTION WAS BASED ONTHE FOLLOWING GROUNDS:
1. If the motion to quash is sustained, may
order that another complaint or information be filed
of this mle L. That the criminal action or liability has been
except as provided in section 6* extinguished;*74

2. If the order is made, the accused, if in custody shall 2. That the accused has been previously convicted or
not be discharged unless admitted to bail. acquitted of the offense charged, or the case against
3. If no order is made or if having been made, no new him was dismissed or otherwise terminated without
475
his express consent.
information is filed within the time specified in the
order or within such further time as the court may allow
Section 7. Former conviction or acquittal; double jeopardy.
When an accused has been convicted or acquitted, or
the case against him dismissed or otherwise terminated
without his express consent by a court of competent
GR Nos. J71222 &174786, [February 18,201S]
Sec. 6, Rule 117. An order sustaining the motion to quash is not a bar to another jurisdiction, upon a valid complaint or information or
prosecution for the same offense unless the motion was based on grounds specified in other formal charge sufficient in form and substance to
section 3(g)and (i) of this Rule. Sec. 3, Rule 117. The accused may move to quash
the complaint or infornation on any of the following grounds: xxx (g) That the
criminal action or liability has been extinguished; xxx (i) That the accused has been ) Gonzales vs. Salvador, G.R. No. l68340, [December 5, 2006).
previousiy convicted or acquitted of the offense charged, or the case against him was 47
Section 3(g), Rule l17.
dismissed or otherwise terminated without his express consent. Section 3 (), Ibid.
 ON CRIMINAL IPROCEDURE RULE I17
RULES
304
ANNOTATED
Motion to Quash 305

and after the accused had charged with the samne or an identical offense. This principle
sustain
the charge,
conviction
a the conviction pleaded
or acquittal of the accUsed toro
founded
uponthe law of reason, justice and conscience.
shall be a bar js
of the case to No less than the Constitution guarantees this as one of
the dismissal offense charged, or for another
prosecution for the
frustration thereof, or
any attempt rights of the citizen, viz.: Article III Bill of
commit the same or foor any to the
fundamental
Rights Section 21. No person shall be twice put in jeopardy of
which necessarily
includes or is necessarily included offense
offense charged in the former complaint or information. in the p u n i
for the same offense. If an act is punished by a
s h m e n t

an ordinance, conviction or acquittal under ether

law and
However., the conviction of
the accused shall not be a constitute a bar to another prosecution for the same act.
shall
prosecution for an offense which bar
to another
includes the offense charged
in the necessarily
former complaint WHATIS DOUBLE JEOPARDY?
following instances" or
information under any of the Double jeopardy exists when a person is placed in
jeopardy of punishment for the same offense. The test is
(a) the graver offense developed due to supervening whether one offense is identical with the other is an attempt
facts arising from the same act or omission
the former charge; constituting Commit or a frustration thereof; or whether one offense
necessarily includes or is necessarily included in the other.
(b) the facts constituting thegraver charge
known or were discovered only after a pleabecame
was
When an accused has been convicted or acquitted. or the
case against him dismissed or otherwise terminated without
entered in the former complaint or information; or his express consent by a court of competent jurisdiction, upon
(c) the plea of guilty to the lesSser offense was mad valid complaint or information or other formal charge
without the consent of the prosecutor and of the sufficient in form and substance to sustain a conviction and
offended party except as provided in section 1 () of after the accused had pleaded to the charge, the conviction or
Rule 116. acquittal of the accused or the dismissal of the case shall be a
bar to another prosecution for the:
In any of the foregoing cases, where the accused satisfies
or serves in whole or in part the judgment, he shall be 1. offense charged, or
eredited with the same in the event of conviction for the 2. any attempt to commit the same or frustration
graver offense. (7a) thereof, or
CONCEPT OF DOUBLE JEOPARDY 3. any offense which necessarily inchudes or is necessarily
included in the offense charged in the former complaint
The rule on double jeopardy is one of the pillars of our or information."%
criminal justice system. It dictates that when a person is
charged with an offense, and the case is terminated ejither ts People vs. Sandiganbayan (Second Division), GR Nos. (85503, I87603 &192166,
by acquittal or conviction or in any other manner without thÇ [May 3, 2021].
consent of the accused the accused cannot again be
477
Merenctllo vs. People, G. R. Nos. 142369-70, Aprnl 13, 2007, eiting Suero vs People.
G.R No IS6408, Januury 31, 200S.
43 Section 7, Rule l7.
 CRIMINAL PROCEDURE RULE 117
ON 307
RULES A N N O T A T E D
Motion to Quash
306

REQUISITIES TO INVOKE DOUBLE JEOPARDY 1. The graver offense developed due to supervening facts
arising from the same act or omission constituting
double jcopardy
when the following the former charge;
are present:
There is requisites 2. The facts constituting the graver charge became
jeopardy attached
prior to the second; known or were discovered only after a plea was
()afirst entered in the former complaint or informatíon: or
jeopardy has
been validly terminated:
(2) the first and
The plea of guilty to the lesser offense was made
(3) a second jeopardy is for the same offense as in
470 without the consent of the prosecutor and of the
the first. offended party.
jeopardy attaches only
(a) after a valid
Afirsta competent
(b) before court; (c) after arraignment; (d) when a indictment, Except: the private offended party shall be required
to appear at the arraignment for purposes of plea
valid plea has been entered; and (e) when the accused was
acquitted or convicted, or the case was dismissed or otherwise bargaining, determination of civil liability, and other
express consent.
480 matters requiring his presence. In case of failure of
terminated without his the offended party to appear despite due notice, the
However. there are two (2)exCepions to the foregoine court may allow the accused to enter a plea of guilty
rule, and double jeopardy may attach even if the dismissal of to a lesser offense which is necessarily included in
consent of the accused the offense charged with the conformity of the trial
the case was with the
prosecutor alone.
1. first, when there is insufficiency of evidence to
support the charge against him; and In any of the foregoing cases, where the accused satisfies
2. second, where there has been an unreasonable delay ar serves in whole or in part the judgment, he shall be credited
with the same in the event of conviction for the graver offense.
inthe proceedings, in violation of the accused's right
481
to speedy trial. Soction 8. Provisional dismissal. - A case shall not be
provisionally dismissed except with the express consent of
DOUBLE JEOPARDY SHALL NOT APPLY DESPprTE the accused and with notice to the offended party.
A PRIOR CONVICTION
The provisional dismissal of offenses punishable by
However, the conviction of the accused shall not be a bar inuprisonment not exceeding six (6) years or a fine of any
to another prosecution for an offense which necessarily amount, or both, shall become permanent one (1) year
includes the offense charged in the former complaint or after issuance of the order without the case having been
information under any of the following instances: revived. With respect to offenses punishable by imprisonment
of more than six (6) years, their provisional dismissal shall
479
People vs. Nazareno, G.R. No. 168982, August 5, 2009, citing Pacoy vs. Cajigal, become permanent two (2) years after issuance of the
GR.No. 157472, September 28, 2007.
41
Ibid. order without the case having been revived. (n)
Saldariega vs. Panganiban, G.R. Nos. 211933 &211960, [April 15, 201s).
 RULESON
CRIMINAL PROCEDURE RULE 117
ANNOTATED
308 Motion to Quash 309

OF THE ACCUSED
FOR
CONSENT

DISMISSAL
PROVISIONAL c o l l u s i o n

provisional
between the
dismissal
prosecutor and the
of a criminal case therebyaccused for the
depriving the
State of its right to due process; (b) attempts to make witnesses
Acase shall not be dismissed
provisionally
and with except with or (c) the provisional demand of the case with the
of the accused
unavailable:

the express consent notice to the release of the accused from

detention
enable him to threaten and kill the offended party or the would
482 consequent

offended party. other

EXPRESS CONSENT to a provisional witnesses, or flee from Philippine
given either viva vOce
or in writing. It is a
,
dismissal
positive, is
prosecution

jurisd1ction,
provide opportunity for the destruction or loss of the
unequivocal consent requiring
no inference or direct, i's physical can other evidence and prejudice the
supply its meaning. Where
the accused writes on the implication to prosecution

rights ofthe offended party to recover on the civil liab1lity of

of a prosecutor for a
provisional dismissal of the motion the accused by his concealment or furtive disposition of his
caSe
objection or with my writing amounts noto
conformity, the property or the consequent lifting
484
of the writ of preliminary
express consent of
the accused to a provisional dismissal atachment against hs property.
of
the case. The mere inaction or silence of the accused t0 a
motion for a provisional dismissal of the case or his failure to
REQUISITES FOR PROVISIONAL DISMISSAL:
object to a provisional dismissal does not amount to express : The prosecution with the express conformity of the
Consent 483
accused or the accused moves for a provisional
It must be borne in mind that in crimes involving privat (sinperjuicio) dismissal of the case: or both the
interest, it requires that the offended party or parties or the prosecution and the accused move for a provisional
heirs of the victims must be given adequate a priori notic dismissal of the case;
of any motion for the provisional dismissal of the criminal
case. Such notice may be served on the offended party or the 2. The offended party is notified of the motion for a
heirs of the victim through the private prosecutor, if there is provisional dismissal of the case:
one, or through the public prosecutor who in turn must relay 3. The court issues an order granting the motion and
the notice to the offended party or the heirs of the victim to dismissing the case provisionally: and
enable them to confer with him before the hearing or appear
in court during the hearings. The proof of such service must 4. The public prosecutor is served with a copy of the
be shown during the hearing otherwise the requirement of the order of provisional dismissal of the case.
new rule will become illusory. The concurrence of these essential requisites is a
Such notice will enable the offended party or the heirs of condition sine qua non to the application of the time-bar
the victim the opportunity to seasonably and effectively comment rule. The raison d'être for the requirement of the express
on or object to the motion on valid grounds, including: (a) the consent of the accused to a provisional dismissal of a criminal
484
a2 Section 8, Rule 117. lbid.
489
Rule On Provisional Dismissal, 461 SCRA 618. People vs. Castillo, GR. No. 252403, (December 7, 2021| citing People vs.
Lacson 448 Phil. 317, 370-37| (2003).
 CRIMINAL PROCEDURE RULE 117
RULESONANNOTATED Motion to Quash 311
310

caseis to bar him trom subsequently asserting that he revival MOTION TO QUASH Vs. PROVISIONAL DISMISSAL"*
of the criminal case will place him in double jeopardy for the
1. Afirst notable feature of Section 8, Rule 117 is that
same oftense or for an offense necessarily included therein.
it does not exactly state what a provisional dismissal
is. The modifier "provisional" directly suggests that
the dismissals which Section 8 essentially
TIME-BAR RULE
refers to
Ne fhose that are temporary in character (i.e.. to
under Section 8 of Rule 117 is
The time-bar akin State
special procedural limitation qualifying the right of the to a dismissals that are without prejudice to the re-filing
to prosecute makingthe time-bbar an essence of the given igh of the case), and not the dismissals that are pemanent
or as an inherent part thereof, so that the lapse of the time bar (i.e., those that bar the re-filing of the case). Based
extinguish the right
of the State to on the aw, rules, and jurisprudence, permanent
operates to
the accused.
486 prosecute dismissals are those barred by the principle of
double jeopardy, by the previous extinction of
DISMISSAL BECOMES PERMANENT: eriminal liability, by the rule on speedy trial, and
the dismissals after plea without the express
issuance of the order without consent of the accused. Section 8, by its own terms.
1. One (1) year after
case having been revived for offenses punishable theby cannot cover these dismissals because they are not
imprisonment not exceeding six (6) years or afine of provisional.
Cases)
any amount, or both; (MTC
2. Asecond feature is that Section 8 does not state the
2. Two (2) years after issuance of the order without the grounds that lead to a provisional dismissal. This
case having been revived with respect to offenses is in marked contrast with a motion to quash whose
punishable by imprisonment of more than six (6) grounds are specified under Section 3. The delimitation
years. (RTC Cases) of the grounds available in a motion to quash
suggests that a motion to quash is a class in itself.
Exception: with specific and closely-defined characteristics
The state may revive a criminal case beyond the one vear under the Rules of Court. A necessary consequence
or two year periods provided that there is justifiable necessity is that where the grounds cited are those listed under
for the delay. By the same token, if a criminal case is Section 3, then the appropriate remedy is to file a
dismissed on motion of the accused because the trial is not motion to quash, not any other remedy. Conversely,
concluded within the period therefor, the prescriptive periods where a ground does not appear under Section 3.
under the Revised Penal Code are not thereby dismissed.87 then a motion to quash is not a proper remedy A
motion for provisional dismissal may then apply if
the conditions required by Section 8 obtain.
48
Rule On Provisional D1smissal, 461 SCRA 618.
lbid. 88 Los Baños vs. Pedro, G.R.No. 173588, [April 22, 2009).
 CRIMINAL. PROC EDURE RULE I17
313
ON
RULES ANNOTATED

Motion to Quash
312

3. Athird feature. closecly related to the sccord, focuses for the dismissal is the extinction of criminal Iiab1lity
on the conscquences of a meritorious mmotion to and double jeopardy. These unique terms, read in
feature also answerS the relation with Sections 3 (i) and 7and compared with
canquestion
quash. This the conscquences of Section 8, carry unavoidable
the quashal
of an information be
of
aswhether
a provisIOnal dismissal. Sections 4, 5, 6, andrcaledof implications that cannot but lead to distinctions
provide for the between a quashal and a provisional dismissal under
consSequences
unmistakably
Rule l17
of a meritonous motion to quash. Section 4speaks of Section 8. They stress in no uncertain terms that,
an amendment of the complaint or information, if the eave only for what has been provided under Sections
quash relatess to a defect curable by Aand 5, the governing rule when a motion to quash
motionto
Section 5dwells
on the effect of sustaining the amendmen is meritorious are the terms of Section 6. The failure
complaint or information may bemotion to of the Rules to state under Section 6 that a Section 8
quash -the instances mentioned under S re-filed, provisional dismissal is a bar to further prosecution
Cxcepi for the
on the other
Section 6.
hand, spccifies shows that the framers did not intend a dismissal
The latter section,
limit of the re-filing that Section 5 allows the hased on amotion to quash and a provisional dismissal
cannot be done
where the dismissal is based to be confused with one another; Section 8 operates
on
extinction of criminal liab1lity or double ieonn in a world of its own separate from motion to quash,
double jeopardy and and merely provides a time-bar that uniquely applies
the ground provided under Section 3 complements
Section 7 defines
(i)) and the to dismissals other than those grounded on Section 3.
Section 6. Conversely, when a dismissal is pursuant to a
exception stated in
motion to quash under Section 3, Section 8 and its
Rather than going into specifics, Section
states when a provisional dismissal can be made, simply time-bar does not apply.
Le. when the accused expressly consents and the Amotion to quash and its resulting dismissal is a unique
offended party is given notice. The consent of the alass that should not be confused with other dismissals:
accused to a dismissal relates directly to what Section 3
) and Section 7provide, i.e., the conditions for dismissals 1. A motion to quash is invariably filed by the
that lead to double jeopardy. This immediately suggests accused to question the efficacy of the complaint or
that a dismissal under Section 8 i.e., one with the information filed against him or her (Sections l and
express consent of the accused is not intended to 2, Rule 117); in contrast, a case may be provisionally
lead to double jeopardy as provided under Section 7, dismissed at the instance of either the prosecution
but nevertheless creates a bar to further prosecution or the accused, or both, subject to the conditions
under the special terms of Section 8 enumerated under Section 8, Rule I17.

This feature must be read with Section 6 which 2. The form and content of a motion to quash are as
provides for the effects of sustaining a motion to stated under Section 2 of Rule 117; these requirements
quash the dismissal is not a bar to another do not apply to a provisional dismissal.
prosecution for the same offense unless the basis
 CRIMINAL P'ROCEDURE RULE l17 315
ON
RULES ANNOTATED Motion to Quash
314

quash
assails the
validity of the information,
either because he did not file a motion to
motion to
3. A
complaint or the criminal information
face of the
for crimsinal
defect deemed
quash
or failed to allege the same in said motion, shall be
waiver of any objections based on the grounds
apparent on or
defenses
dismissal may be grounded on infomation,
other than the defects found in the innformation.reasSOns
provisional
a provided, for in paragraphs (a), (b), (g), and (i) of section 3
Rule. (8)
ofthis
quash is allowed before the FAILURE TO MOVE TO QUASH OR TO ALLEGE
4. Amotion to
(Section 1, Rule
117): there may be a arraignment
provisional ANY GROUND THEREFOR
of the case even
when the trial
provided proper
dismissal
already underway of The failure of the accused to assert any ground of a motion
the case is that the
required consents are present. quash
before he pleads to the complaint or information.
to
either because he did not file a motion to quash or failed to
5. Aprovisional dismissall is, by its Own tems, impemanent allege the same in said motion, shall be deemed a waiver of
until the time-bar applies, at
which time it
dismissal. In contrast, an becomes a objections based on the following grounds:
permanent
is quashed stays quashed until information
revived; the grantthatof
any

1 That the facts charged do not constitute an offense.: 489

a motion to quash does not per se carry any 9 That the court trying the case has no jurisdiction over
connotation of impermanence, and becomes the offense charged:90
only as provided by law or by the Rules. In re-so
filing the case, what is important is the question of 3. That the criminal action or liability has been
whether the action can still be brought, i.e., whether extinguished:491
the prescription of action or of the offense has set in.
In a provisional dismissal. there can be no re-filing 4, That the accused has been previously convicted or
acquitted of the offense charged, or the case against
after the time-bar, and prescription is not an him was dismissed 492
or otherwise terminated without
immediate consideration.
his express consent.
6. If the problem relates to an intrinsic or extrinsic
TAKE NOTE:
deficiency of the complaint or information, as shown
on its face, the remedy is a motion to quash under The prevailing jurisprudence is of the view that
the terms of Section 3, Rule 117. Allother reasons for paragraph (d) of Sec. 3, that the officer who filed
seeking the dismissal of the complaint or information, the Information had no authority to do so, also cannot be
before arraignment and under the circumstances waived by the accused like those in paragraphs (a).(b),(g) and
outlincd in Section 8, fallunder provisional dismissal. (). Even if such ground is not listed in Sec. 9 as among those
Section 9. Failure to move to quash or to allege any ground
therefor. -The failure of the accused to assert any ground 489 Section 3 (a), Rule I17.
490
Section 3 (b), Ibid.
of a motion to quash before he pleads to the complaint or a Secticon 3 (g), Ibid.
72 Section 3 (i), Ibid.
 RULESON CRIMINAL PROCCEDURE
ANNOTATED
316

waived, it may still be asserted or

which cannot be arraignment for purposes raised by
the accused even
after of
an
Information and, consequently, having the quascrimhiinnalg
case dismissed 493

493
VillaGomez vs. People, G.R. No, 216824. INovember 10, 2020)