Los Baños vs. Pedro

SUPREME COURT REPORTS ANNOTATED VOLUME 586 11/18/19, 7:46 AM
G.R. No. 173588. April 22, 2009.*

ARIEL M. LOS BAÑOS, on behalf of P/Supt. Victor
Arevalo, SPO2 Marcial Olympia, SPO1 Rocky Mercene and
PO1 Raul Adlawan, and in his personal capacity, petitioner,
vs. JOEL R. PEDRO, respondent.
Criminal Procedure; Motion to Quash; Grounds; Words and

Phrases; A motion to quash is the mode by which an accused assails,
before entering his plea, the validity of the criminal complaint or the
criminal information filed against him for insufficiency on its face in
point of law, or for defect apparent on the face of the Information.·A
motion to quash is the mode by which an accused assails, before
entering his plea, the validity of the criminal complaint or the
criminal information filed against him for insufficiency on its face in
point of law, or for defect apparent on the face of the Information.
The motion, as a rule, hypothetically admits the truth of the facts
spelled out in the complaint or information. The rules governing a
motion to quash are found under Rule 117 of the Revised Rules of
Court. Section 3 of this Rule enumerates the grounds for the
quashal of a complaint or information, as follows: (a) That the facts
charged do not constitute an offense; (b) That the court trying the
case has no jurisdiction over the offense charged; (c) That the court
trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do
so; (e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law; (g) That the
criminal action or liability has been extinguished; (h) That it
contains averments which, if true, would constitute a legal excuse
or justification; and (i) That the accused has been previously
convicted or acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without his express
consent.
Same; Same; Provisional Dismissal; Requisites; Time-Bar; The
time-bar under Sec. 8, Rule 117 is a special procedural limitation
qualifying the right of the State to prosecute, making the time-bar an
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essence of the given right or as an inherent part thereof, so that the
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* EN BANC.
304
304 SUPREME COURT REPORTS ANNOTATED

Los Baños vs. Pedro
lapse of the time-bar operates to extinguish the right of the State to

prosecute the accused.·A case is provisionally dismissed if the
following requirements concur: 1) the prosecution with the express
conformity of the accused, or the accused, moves for a provisional
dismissal (sin perjuicio) of his case; or both the prosecution and the
accused move for its provisional dismissal; 2) the offended party is
notified of the motion for a provisional dismissal of the case; 3) the
court issues an order granting the motion and dismissing the case
provisionally; and 4) the public prosecutor is served with a copy of
the order of provisional dismissal of the case. In People v. Lacson
(400 SCRA 293 [2003]), we ruled that there are sine quanon
requirements in the application of the time-bar rule stated in the
second paragraph of Section 8 of Rule 117. We also ruled that the
time-bar under the foregoing provision is a special procedural
limitation qualifying the right of the State to prosecute, making the
time-bar an essence of the given right or as an inherent part
thereof, so that the lapse of the time-bar operates to extinguish the
right of the State to prosecute the accused.
Same; Same; Same; A dismissal based on a motion to quash and
a provisional dismissal are far different from one another as
concepts, in their features, and legal consequences.·An examination
of the whole Rule tells us that a dismissal based on a motion to
quash and a provisional dismissal are far different from one
another as concepts, in their features, and legal consequences.
While the provision on provisional dismissal is found within Rule
117 (entitled Motion to Quash), it does not follow that a motion to
quash results in a provisional dismissal to which Section 8, Rule
117 applies.
Same; Same; Same; If the problem relates to an intrinsic or
extrinsic deficiency of the complaint or information, as shown on its
face, the remedy is a motion to quash under the terms of Section 3,
Rule 117·all other reasons for seeking the dismissal of the

complaint or information, before arraignment and under the
circumstances outlined in Section 8, fall under provisional
dismissal.·To recapitu-late, quashal and provisional dismissal are
different concepts whose respective rules refer to different
situations that should not be confused with one another. If the
problem relates to an intrinsic or extrinsic deficiency of the
complaint or information, as shown on its face, the remedy is a
motion to quash under the terms of Section 3, Rule 117. All other
reasons for seeking the dismissal of the com-
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VOL. 586, APRIL 22, 2009 305

plaint or information, before arraignment and under the

dismissal.
PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Ariel M. Los Baños for petitioners.
Domingo R. Buenviaje for respondent.
BRION, J.:
We review in this petition for review on certiorari1 the
September 19, 2005 decision2 and the July 6, 2006
resolution3 of the Court of Appeals (CA) in CA-G.R. SP No.
80223. The petition seeks to revive the case against
respondent Joel R. Pedro (Pedro) for election gun ban
violation after the CA declared the case permanently
dismissed pursuant to Section 8, Rule 117 of the Rules of
Court.
The Antecedents
Pedro was charged in court for carrying a loaded firearm

without the required written authorization from the
Commission on Elections (Comelec) a day before the May
14, 2001 national and local elections. The Information
reads:
„That on or about the 13th day of May 2001 at about 4:00 oÊclock
in the afternoon, in [S]itio Bantauyan, [B]arangay Bantad,
Municipality of Boac, Province of Marinduque, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused did then and there, willfully, unlawfully and feloniously
carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6)
ammunitions, with
_______________
1 Under Rule 45 of the Rules of Court.

2 Penned by Associate Justice Santiago J. Ranada (retired), with Associate
Justice Marina L. Buzon (retired) and Associate Justice Mario L. Guarina III;
Rollo, pp. 32-38.
3 Id., pp. 60-63.
306

Serial No. 173-56836 outside his residence during the election

period, without authorization in writing from the Commission on
Election[s].
CONTRARY TO LAW.‰4
The accusation was based on Batas Pambansa Bilang

881 or the Omnibus Election Code (Code) after the
Marinduque Philippine National Police (PNP) caught
Pedro illegally carrying his firearm at a checkpoint at Boac,
Marinduque. The Boac checkpoint team was composed of
Police Senior Inspector Victor V. Arevalo, SPO2 Marshal
Olympia, SPO1 Rocky Mercene, and PO1 Raul Adlawan.
The team stopped a silver-gray Toyota Hi-Ace with plate
number WHT-371 on the national highway, coming from
the Boac town proper. When Pedro (who was seated at the
rear portion) opened the window, Arevalo saw a gun carry
case beside him. Pedro could not show any COMELEC
authority to carry a firearm when the checkpoint team
asked for one, but he opened the case when asked to do so.
The checkpoint team saw the following when the case was
opened: 1) one Revolver 357 Magnum Ruger GP100, serial
number 173-56836, loaded with six ammunitions; 2) one
ammunition box containing 100 bullets; 3) two pieces speed

loader with six ammunitions each; and 4) one set ear
protector. Pedro was with three other men. The checkpoint
team brought all of them to the Boac police station for
investigation.
The Boac election officer filed a criminal complaint
against Pedro for violating the election gun ban, i.e., for
carrying a firearm outside of his residence or place of
business without any authority from the Comelec. After an
inquest, the Marinduque provincial prosecutor filed the
above Information against Pedro with the Marinduque
Regional Trial Court
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4 Id., pp. 65-66.
307
VOL. 586, APRIL 22, 2009 307

(RTC) for violation of the CodeÊs Article XXII, Section 261

(q),5 in relation to Section 264.6
Pedro filed a Motion for Preliminary Investigation,
which the RTC granted.7 The preliminary investigation,
however, did not materialize. Instead, Pedro filed with the
RTC a Motion to Quash, arguing that the Information
„contains averments which, if true, would constitute a legal
excuse or justification8 and/or that the facts charged do not
constitute an
_______________
5 SEC. 261. Prohibited Acts.·The following shall be guilty of an

election offense:
xxx
(q) Carrying firearms outside residence or place of business.·Any
person who, although possessing a permit to carry firearms, carries any
firearms outside his residence or place of business during the election
period, unless authorized in writing by the Commission [on Elections]:
Provided, That a motor vehicle, water or air craft shall not be considered
residence or place of business or extension thereof.

This prohibition shall not apply to cashiers and disbursing officers
while in the performance of their duties or to persons who by nature of
their official duties, profession, business or occupation habitually carry
large sums of money or valuables.
This section was subsequently amended under Republic Act (R.A.) No.
7166, the Synchronized Election Law of 1991, to read:
SEC. 32. Who May Bear Firearms.·During the election period, no
person shall bear, carry or transport firearms or other deadly weapons in
public places, including any building, street, park, private vehicle or
public conveyance, even if licensed to possess or carry the same, unless
authorized in writing by the Commission. The issuance of firearm
licenses shall be suspended during the election period. (Emphasis
supplied)
6 Section 264 of the Code states that „[a]ny person found guilty of any
election offense under this Code shall be punished with imprisonment of
not less than one year but not more than six years.‰
7 Through Judge Rodolfo Dimaano of RTC Branch 94, Boac,
Marinduque.
8 Rules of Court, Rule 117, Section 3(a).
308

offense.‰9 Pedro attached to his motion a Comelec

Certification dated September 24, 2001 that he was
„exempted‰ from the gun ban. The provincial prosecutor
opposed the motion.
The RTC quashed the Information and ordered the
police and the prosecutors to return the seized articles to
Pedro.10
The petitioner, private prosecutor Ariel Los Baños (Los
Baños), representing the checkpoint team, moved to reopen
the case, as PedroÊs Comelec Certification was a
„falsification,‰ and the prosecution was „deprived of due
process‰ when the judge quashed the information without a
hearing. Attached to Los BañosÊ motion were two Comelec
certifications stating that: (1) Pedro was not exempted from
the firearm ban; and (2) the signatures in the Comelec
Certification of September 24, 2001 were forged.
The RTC reopened the case for further proceedings, as

Pedro did not object to Los BañosÊ motion.11 Pedro moved
for the reconsideration of the RTCÊs order primarily based
on Section 8 of Rule 117,12 arguing that the dismissal had
become permanent. He likewise cited the public
prosecutorÊs lack of express approval of the motion to
reopen the case.
The public prosecutor, however, manifested his express
conformity with the motion to reopen the case. The trial
court,
_______________
9 Id., Section 3(h).

10 Through Judge Alejandro Arenas.
11 Order dated March 13, 2003, issued by Judge Rodolfo B. Dimaano.
12 SEC. 8. Provisional dismissal.·A case shall not be provisionally
dismissed except with the express consent of the accused and with notice
to the offended party.
The provisional dismissal of offenses punishable by imprisonment not
exceeding six (6) years or a fine of any amount, or both, shall become
permanent one (1) year after issuance of the order without the case
having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal shall
become permanent two (2) years after issuance of the order without the
case having been revived.
309
VOL. 586, APRIL 22, 2009 309

for its part, rejected the position that Section 8, Rule 117
applies, and explained that this provision refers to
situations where both the prosecution and the accused
mutually consented to the dismissal of the case, or where
the prosecution or the offended party failed to object to the
dismissal of the case, and not to a situation where the
information was quashed upon motion of the accused and
over the objection of the prosecution. The RTC, thus, set
PedroÊs arraignment date.
Pedro filed with the CA a petition for certiorari and
prohibition to nullify the RTCÊs mandated reopening.13 He

argued that the RTC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that
the dismissal contemplated under Section 8, Rule 117
refers to situations where either the prosecution and the
accused mutually consented to, or where the prosecution
alone moved for, the provisional dismissal of the case; in
rejecting his argument that the prescriptive periods under
Article 90 of the Revised Penal Code14 or Act No. 332615
find no application to his case as the
_______________
13 Docketed as CA-G.R. SP No. 80223, and titled as Joel R. Pedro v.

Hon. Rodolfo B. Dimaano, Executive/Acting Presiding Judge of the
Regional Trial Court of Marinduque, Branch 38, et al.
14 ART. 90. Prescription of crimes.·Crimes punishable by death,
reclusion perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in
fifteen years.
Those punishable by a correctional penalty shall prescribe in ten
years; with the exception of those punishable by arresto mayor, which
shall prescribe in five years. x x x
15 An Act to Establish Periods of Prescription for Violations Penalized
By Special Laws and Municipal Ordinances, and to Provide When
Prescription Shall Begin to Run.
Section 2 thereof states: Prescription shall begin to run from the day
of the commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment. The
prescription shall be interrupted when proceedings are instituted
310

filing of the Information against him stopped the running

of the prescriptive periods so that the prescription
mandated by these laws became irrelevant; and, in setting
the case for arraignment and pre-trial conference, despite
being barred under Section 8 of Rule 117.
The Court of Appeals Decision
The CA initially denied PedroÊs petition. For accuracy,

we quote the material portions of its ruling:
„The petition lacks merit.

The trial court erred in ruling that Section 8, Rule 117 does not
apply to provisional dismissals on motion of the accused. The Rule
merely provides that a case shall not be provisionally dismissed,
except with the express consent of the accused and with notice to
the offended party. Nothing in the said rule proscribes its
application to dismissal on motion of the accused.
Nevertheless, we find no basis for issuing the extraordinary
writs of certiorari and prohibition, as there is no showing that the
error was tainted with grave abuse of discretion. Grave abuse of
discretion implies capricious and whimsical exercise of judgment
amounting to lack of jurisdiction. The grave abuse of discretion
must be so patent and gross as to amount to an evasion or refusal to
perform a duty enjoined by law.
Before the petitioner may invoke the time-bar in Section 8, he
must establish the following:
1. the prosecution, with the express conformity of the
accused or the accused moves for a provisional (sin perjuicio)
dismissal of the case; or both the prosecution and the accused
move for a provisional dismissal of the case;
2. the offended party is notified of the motion for a
provisional dismissal of the case;
3. the court issues an order granting the motion and
dismissing the case provisionally;
_______________
against the guilty person and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
311
VOL. 586, APRIL 22, 2009 311

4. the public prosecutor is served, with a copy of the order

of provisional dismissal of the case.
Although the second paragraph of Section 8 states that the order
of dismissal shall become permanent one year after the issuance

thereof, without the case having been revived, such provision
should be construed to mean that the dismissal shall become
permanent one year after service of the order of dismissal on the
public prosecutor, as the public prosecutor cannot be expected to
comply with the timeliness requirement unless he is served with a
copy of the order of dismissal.
In the instant, case, the records are bereft of proof as to when the
public prosecutor was served the order of dismissal dated 22
November 2001. Absent such proof, we cannot declare that the
State is barred from reviving the case.
WHEREFORE, the petition is DENIED.‰
In his motion for reconsideration, Pedro manifested the

exact date and time of the Marinduque provincial
prosecutorÊs receipt of the quashal order to be „2:35 p.m.,
December 10, 2001,‰ and argued that based on this date,
the provisional dismissal of the case became „permanent‰
on December 10, 2002. Based on this information, the CA
reversed itself, ruling as follows:
„On 9 September 2005, we ruled that Section 8, Rule 117 is

applicable to a dismissal on motion of the accused. However, we did
not issue the writs of certiorari and prohibition, because it was
shown that the trial court committed grave abuse of discretion in
ordering the reopening of the case. Moreover, we stated that we
cannot rule on the issue of whether or not the State is barred from
reopening the case because it was not shown when the public
prosecutor was served the order of dismissal.
xxx
The arguments raised in the respondentsÊ motion for
modification were duly passed upon in arriving at the decision
dated 9 September 2005, and no new matters were raised which
would warrant a reconsideration thereof.
On the other hand, the petitioner was able to prove that the
motion to reopen the case was filed after the lapse of more than one
312

year from the time the public prosecutor was served the notice of
dismissal. Therefore, the state is barred from reopening the case.

WHEREFORE, petitioner Joel PedroÊs motion for partial
reconsideration is hereby GRANTED, and respondent Ariel Los
BanosÊ motion for modification of judgment is, accordingly,
DENIED.‰
To summarize this ruling, the appellate court, while

initially saying that there was an error of law but no grave
abuse of discretion that would call for the issuance of a
writ, reversed itself on motion for reconsideration; it then
ruled that the RTC committed grave abuse of discretion
because it failed to apply Section 8, Rule 17 and the time-
bar under this provision.
The Petition
Los Baños prays in his petition that the case be

remanded to the RTC for arraignment and trial, or that a
new charge sheet be filed against Pedro, or that the old
information be re-filed with the RTC. He contends that
under Section 6 of Rule 117, an order sustaining a motion
to quash does not bar another prosecution for the same
offense, unless the motion was based on the grounds
specified in Section 3(g)16 and (i)17 of Rule 117. Los Baños
argues that the dismissal under Section 8 of Rule 117
covers only situations where both the prosecution and the
accused either mutually consented or agreed to, or where
the prosecution alone moved for the provisional dismissal
of the case; it can also apply to instances of failure on the
part of the prosecution or the offended party to object, after
having been forewarned or cautioned that its case will be
dismissed. It does not apply where the information was
_______________
16 (g) That the criminal action or liability has been extinguished.

17 (i) That the accused has been previously convicted or acquitted of
the offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.
313
VOL. 586, APRIL 22, 2009 313
quashed. He adds that although the trial court granted the

motion to quash, it did not categorically dismiss the case,
either provisionally or permanently, as the judge simply
ordered the return of the confiscated arms and ammunition
to Pedro. The order was „open-ended,‰ and did not have the
effect of provisionally dismissing the case under Section 8
of Rule 117.
Los Baños also contends that the CA gravely erred
when: (1) it ruled in effect that the Order dated November
22, 2001 granting the motion to quash is considered a
provisional dismissal, which became permanent one year
from the prosecutorÊs receipt of the order; the order to
quash the Information was based on Section 3 of Rule 117,
not on Section 8 of this Rule; (2) it granted PedroÊs motion
for reconsideration and denied Los BañosÊ motion for
modification of judgment, when Section 6 of Rule 117
clearly provides that an order granting a motion to quash is
not a bar to another prosecution for the same offense.
He notes that the grounds Pedro relied upon in his
motion to quash are not subsections (g) or (i) of Rule 117,
but its subsections (a)·that the facts charged do not
constitute an offense, and (h)·that it contains averments
which if true would constitute a legal justification. PedroÊs
cited grounds are not the exceptions that would bar
another prosecution for the same offense.18 The dismissal of
a criminal case upon the express application of the accused
(under subsections [a] and [h]) is not a bar to another
prosecution for the same offense, because his application is
a waiver of his constitutional prerogative against double
jeopardy.
In response to all these, respondent Pedro insists and
fully relies on the application of Section 8 of Rule 117 to
support his position that the RTC should not have granted
Los BanosÊ motion to reopen the case.
_______________
18 Rollo, p. 14.
314

The Issues
The issue is ultimately reduced to whether Section 8,

Rule 117 is applicable to the case, as the CA found. If it
applies, then the CA ruling effectively lays the matter to
rest. If it does not, then the revised RTC decision reopening
the case should prevail.
Our Ruling
We find the petition meritorious and hold that the

case should be remanded to the trial court for
arraignment and trial.
Quashal v. Provisional Dismissal
Motion to Quash
a.
A motion to quash is the mode by which an accused
assails, before entering his plea, the validity of the criminal
complaint or the criminal information filed against him for
insufficiency on its face in point of law, or for defect
apparent on the face of the Information.19 The motion, as a
rule, hypothetically admits the truth of the facts spelled
out in the complaint or information. The rules governing a
motion to quash are found under Rule 117 of the Revised
Rules of Court. Section 3 of this Rule enumerates the
grounds for the quashal of a complaint or information, as
follows:
(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the
offense charged;
(c) That the court trying the case has no jurisdiction over the
person of the accused;
_______________
19 Serapio v. Sandiganbayan, G.R. No. 148468, January 28, 2003, 396 SCRA
443, 474.
315
VOL. 586, APRIL 22, 2009 315

(d) That the officer who filed the information had no authority

to do so;
(e) That it does not conform substantially to the prescribed
form;
(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute
a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted
of the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.
Provisional Dismissal
b.
On the other hand, Section 8, Rule 117 that is at the
center of the dispute states that:
„SEC. 8. Provisional dismissal.·A case shall not be

provisionally dismissed except with the express consent of the
accused and with notice to the offended party.
The provisional dismissal of offenses punishable by imprison-
ment not exceeding six (6) years or a fine of any amount, or both,
shall become permanent one (1) year after issuance of the order
without the case having been revived. With respect to offenses
punishable by imprisonment of more than six (6) years, their
provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revived.‰
A case is provisionally dismissed if the following require-

ments concur:
1) the prosecution with the express conformity of the accused,

or the accused, moves for a provisional dismissal (sin perjuicio) of
his case; or both the prosecution and the accused move for its
provisional dismissal;
2) the offended party is notified of the motion for a provisional
dismissal of the case;
316

3) the court issues an order granting the motion and dismissing

the case provisionally; and
4) the public prosecutor is served with a copy of the order of
provisional dismissal of the case.20
In People v. Lacson,21 we ruled that there are sine

quanon requirements in the application of the time-bar
rule stated in the second paragraph of Section 8 of Rule
117. We also ruled that the time-bar under the foregoing
provision is a special procedural limitation qualifying the
right of the State to prosecute, making the time-bar an
essence of the given right or as an inherent part thereof, so
that the lapse of the time-bar operates to extinguish the
right of the State to prosecute the accused.
Their Comparison
c.
An examination of the whole Rule tells us that a
dismissal based on a motion to quash and a provisional
dismissal are far different from one another as concepts, in
their features, and legal consequences. While the provision
on provisional dismissal is found within Rule 117 (entitled
Motion to Quash), it does not follow that a motion to quash
results in a provisional dismissal to which Section 8, Rule
117 applies.
A first notable feature of Section 8, Rule 117 is that it
does not exactly state what a provisional dismissal is. The
modifier „provisional‰ directly suggests that the dismissals
which Section 8 essentially refers to are those that are
temporary in character (i.e., to dismissals that are without
prejudice to the re-filing of the case), and not the dismissals
that are permanent (i.e., those that bar the re-filing of the
case). Based on the law, rules, and jurisprudence,
permanent dismissals are
_______________
20 People v. Lacson, G.R. No. 149453, April 1, 2003 400 SCRA 267,
292-293.
21 People v. Lacson, G.R. No. 149453, April 1, 2003 400 SCRA 293.
317
VOL. 586, APRIL 22, 2009 317

those barred by the principle of double jeopardy,22 by the

previous extinction of criminal liability,23 by the rule on
speedy trial,24 and the dismissals after plea without the
express consent of the accused.25 Section 8, by its own
terms, cannot cover these dismissals because they are not
provisional.
A second feature is that Section 8 does not state the
grounds that lead to a provisional dismissal. This is in
marked contrast with a motion to quash whose grounds are
specified under Section 3. The delimitation of the grounds
available in a motion to quash suggests that a motion to
quash is a class in itself, with specific and closely-defined
characteristics under the Rules of Court. A necessary
consequence is that where the grounds cited are those
listed under
_______________
22 People v. Laguio, G.R. No. 128587, March 16, 2007, 518 SCRA 393,
402-403; People v. Hon. Hernandez, G.R. Nos. 154218 & 154372, August
28, 2006, 499 SCRA 688, 706-707; Philippine Savings Bank v. Spouses
Bermoy, G.R. No. 151912, September 26, 2005, 471 SCRA 94, 107-108;
Sanvicente v. People, G.R. No. 132081, November 26, 2002, 392 SCRA
610, 616-617; Metropolitan Bank & Trust Co. v. Hon. Veridiano, G.R. No.
118251, June 29, 2001, 360 SCRA 359, 366; People v. Velasco, G.R. No.
127444, September 13, 2000, 340 SCRA 207, 242; Palu-ay v. Court of
Appeals, G.R. No. 112995, July 30, 1998, 293 SCRA 358, 365.
23 Romualdez v. Ombudsman, G.R. Nos. 165510-33, July 28, 2006,
497 SCRA 89, 114; People v. Pacificador, G.R. No. 139405, March 13,
2001, 354 SCRA 310, 319-320; Garcia v. Court of Appeals, G.R. No.
119063, January 27, 1997, 266 SCRA 678, 694; Cabral v. Puno, L-41692,
April 30, 1976, 70 SCRA 606, 609.
24 People v. Hon. Hernandez, supra note 22, p. 706; Angchangco, Jr. v.
Ombudsman, G.R. No. 122728, February 13, 1997, 268 SCRA 301;
Guerrero v. Court of Appeals, G.R. No. 107211, June 28, 1996, 257 SCRA
703, 713-714; People v. Leviste, G.R. No. 104386, March 28, 1996, 255
SCRA 238, 248-249; People v. Tampal, G.R. No. 102485, May 22, 1995,
244 SCRA 202; Gonzales v. Sandiganbayan, G.R. No. 94750, July 16,
1991, 199 SCRA 298, 308; Tatad vs. Sandiganbayan, G.R. Nos. L-72335-
39, 21 March 1988, 159 SCRA 70, 83.

25 People v. Espinosa, G.R. Nos. 153714-20, August 15, 2003, 409
SCRA 256, 266.
318

Section 3, then the appropriate remedy is to file a motion to

quash, not any other remedy. Conversely, where a ground
does not appear under Section 3, 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.
A third feature, closely related to the second, focuses on
the consequences of a meritorious motion to quash. This
feature also answers the question of whether the quashal of
an information can be treated as a provisional dismissal.
Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for
the consequences of a meritorious motion to quash.
Section 4 speaks of an amendment of the complaint or
information, if the motion to quash relates to a defect
curable by amendment. Section 5 dwells on the effect of
sustaining the motion to quash - the complaint or
information may be re-filed, except for the instances
mentioned under Section 6. The latter section, on the
other hand, specifies the limit of the re-filing that Section 5
allows·it cannot be done where the dismissal is based on
extinction of criminal liability or double jeopardy. Section
7 defines double jeopardy and complements the ground
provided under Section 3(i) and the exception stated in
Section 6.
Rather than going into specifics, Section 8 simply states
when a provisional dismissal can be made, i.e., when the
accused expressly consents and the offended party is given
notice. The consent of the accused to a dismissal relates
directly to what Section 3(i) and Section 7 provide, i.e., the
conditions for dismissals that lead to double jeopardy. This
immediately suggests that a dismissal under Section 8
·i.e., one with the express consent of the accused·is not
intended to lead to double jeopardy as provided under
Section 7, but nevertheless creates a bar to further

prosecution under the special terms of Section 8.
This feature must be read with Section 6 which provides
for the effects of sustaining a motion to quash·the
dismissal is not a bar to another prosecution for the same
offense·unless the basis for the dismissal is the extinction
of criminal
319
VOL. 586, APRIL 22, 2009 319

liability and double jeopardy. These unique terms, read in

relation with Sections 3(i) and 7 and compared with the
consequences of Section 8, carry unavoidable implications
that cannot but lead to distinctions between a quashal and
a provisional dismissal under Section 8. They stress in no
uncertain terms that, save only for what has been provided
under Sections 4 and 5, the governing rule when a motion
to quash is meritorious are the terms of Section 6. The
failure of the Rules to state under Section 6 that a Section
8 provisional dismissal is a bar to further prosecution
shows that the framers did not intend a dismissal based on
a motion to quash and a provisional dismissal to be
confused with one another; Section 8 operates in a world of
its own separate from motion to quash, and merely
provides a time-bar that uniquely applies to dismissals
other than those grounded on Section 3. Conversely, when a
dismissal is pursuant to a motion to quash under Section 3,
Section 8 and its time-bar does not apply.
Other than the above, we note also the following
differences stressing that a motion to quash and its
resulting dismissal is a unique class that should not be
confused with other dismissals:
First, a motion to quash is invariably filed by the
accused to question the efficacy of the complaint or
information filed against him or her (Sections 1 and 2, Rule
117); in contrast, a case may be provisionally dismissed at
the instance of either the prosecution or the accused, or
both, subject to the conditions enumerated under Section 8,
Rule 117.26
_______________
26 In People v. Togle (105 Phil. 126, 127, [1959]), the defense moved for
the provisional dismissal of the case because of the inability of the
prosecution to present important witnesses. In Baesa v. Provincial Fiscal
of Camarines Sur (G.R. No. L-30363, January 30, 1971, 37 SCRA 437),
the provisional dismissal was made by the accused via motion. Further,
in People v. Oliva (G.R. No. 106826, January 18, 2001, 349 SCRA 435,
438) and People v. Hinaut (105 Phil. 303 [1959]), the case was
provisionally dismissed by the prose-
320

Second, the form and content of a motion to quash are as

stated under Section 2 of Rule 117; these requirements do
not apply to a provisional dismissal.
Third, a motion to quash assails the validity of the
criminal complaint or the criminal information for defects
or defenses apparent on face of the information; a
provisional dismissal may be grounded on reasons other
than the defects found in the information.
Fourth, a motion to quash is allowed before the
arraignment (Section 1, Rule 117); there may be a
provisional dismissal of the case even when the trial proper
of the case is already underway provided that the required
consents are present.27
Fifth, a provisional dismissal is, by its own terms,
impermanent until the time-bar applies, at which time it
becomes a permanent dismissal. In contrast, an
information that is quashed stays quashed until revived;
the grant of a motion to quash does not per se carry any
connotation of impermanence, and becomes so only as
provided by law or by the Rules. In re-filing the case, what
is important is the question of whether the action can still
be brought, i.e., whether the prescription of action or of the
offense has set in. In a provisional dismissal, there can be
no re-filing after the time-bar, and prescription is not an
immediate consideration.
To recapitulate, quashal and provisional dismissal are
different concepts whose respective rules refer to different

situations that should not be confused with one another. If
the problem relates to an intrinsic or extrinsic deficiency of
the complaint or information, as shown on its face, the
remedy is a motion to quash under the terms of Section 3,
Rule 117. All other reasons for seeking the dismissal of the
complaint or
_______________
cution with the consent of the accused; in the later case, the accused
manifested his consent by writing „with conformity‰ in the motion.
27 People v. Ramos, G.R. No. 135204, April 14, 2004 427 SCRA 299,
301; People v. Hinaut, supra note 26, p. 304; People v. Togle, supra note
26, p. 127.
321
VOL. 586, APRIL 22, 2009 321

information, before arraignment and under the

dismissal.
Thus, we conclude that Section 8, Rule 117 does not
apply to the reopening of the case that the RTC ordered
and which the CA reversed; the reversal of the CAÊs order is
legally proper.
PedroÊs Motion to Quash
The merits of the grant of the motion to quash that the
RTC initially ordered is not a matter that has been ruled
upon in the subsequent proceedings in the courts below,
including the CA. We feel obliged to refer back to this
ruling, however, to determine the exact terms of the
remand of the case to the RTC that we shall order.
The grounds Pedro cited in his motion to quash are that
the Information contains averments which, if true, would
constitute a legal excuse or justification [Section 3(h), Rule
117], and that the facts charged do not constitute an offense
[Section 3(a), Rule 117]. We find from our examination of
the records that the Information duly charged a specific
offense and provides the details on how the offense was

committed.28 Thus, the cited Section 3(a) ground has no
merit. On the other hand, we do not see on the face or from
the averments of the Information any legal excuse or
justification. The cited basis,
_______________
28 Rollo, pp. 65-66; for convenience, the body of the Information reads:
That on or about the 13th day of May 2001 at about 4:00 oÊclock
in the afternoon, in [S]itio Bantauyan, [B]arangay Bantad,
Municipality of Boac, Province of Marinduque, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused did then and there, wilfully, unlawfully and feloniously
carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6)
ammunitions, with Serial No. 173-56836 outside his residence
during the election period without authorization in writing from
the Commission on Election[s].
CONTRARY TO LAW.
322

in fact, for PedroÊs motion to quash was a Comelec

Certification (dated September 24, 2001, issued by Director
Jose P. Balbuena, Sr. of the Law Department, Committee
on Firearms and Security Personnel of the Comelec,
granting him an exemption from the ban and a permit to
carry firearms during the election period)29 that Pedro
attached to his motion to quash. This COMELEC
Certification is a matter aliunde that is not an appropriate
motion to raise in, and cannot support, a motion to quash
grounded on legal excuse or justification found on the face
of the Information. Significantly, no hearing was ever
called to allow the prosecution to contest the genuineness
of the COMELEC certification.30
_______________
29 Id., p. 85.
30 In a long line of cases, we have ruled that a motion to quash on the

ground that the allegations of the information do not constitute the
offense charged, should be resolved on the basis alone of these
allegations whose truth and veracity are hypothetically admitted. By
way of exception, we held in People v. Navarro (G.R. No. L-1 & L-2,
December 4, 1945; 75 Phil. 516, 518-519) that additional facts not alleged
in the information, but admitted or not denied by the prosecution, may
be invoked in support of the motion to quash. In People v. De la Rosa (98
SCRA 190, 196-197 [1980]) we adopted a pragmatic approach and
allowed additional facts brought out through the presentation of evidence
by the parties to be considered in the determination of a motion to quash
grounded on the theory that the facts charged do not constitute an
offense. We held:
Indeed, where in the hearing on a motion to quash predicated on the
ground that the allegations of the information do not charge an offense,
facts have been brought out by evidence presented by both parties which
destroy the prima facie truth accorded to the allegations of the
information on the hypothetical admission thereof, as is implicit in the
nature of the ground of the motion to quash, it would be pure technicality
for the court to close its eyes to said facts and still give due course to the
prosecution of the case already shown to be weak even to support
possible conviction, and hold the accused to what would clearly appear to
be a merely vexatious and expensive trial, on her part, and a wasteful
expense of precious time on the part of the court, as well as of the
prosecution.
323
VOL. 586, APRIL 22, 2009 323

Thus, the RTC grossly erred in its initial ruling that a

quashal of the Information was in order. Pedro, on the
other hand, also misappreciated the true nature, function,
and utility of a motion to quash. As a consequence, a valid
Information still stands, on the basis of which Pedro should
now be arraigned and stand trial.
One final observation: the Information was not rendered
defective by the fact that Pedro was charged of violating
Section 261(q) of the Code, instead of Section 32 of R.A. No.
7166, which amended Section 261(q); these two sections
aim to penalize among others, the carrying of firearms (or
other deadly weapons) in public places during the election

period without the authority of the Comelec. The
established rule is that the character of the crime is not
determined by the caption or preamble of the information
or from the specification of the provision of law alleged to
have been violated; the crime committed is determined by
the recital of the ultimate facts and circumstances in the
complaint or information31 Further, in Abenes v. Court of
Appeals,32 we specifically recognized that
_______________
The combined application of these rules tells us where the information is

allegedly defective because the facts charged do not constitute an offense
or that the averments of the Information contain a legal excuse or
justiciation, the motion will be resolved, as a rule, solely on the basis of
the facts alleged in the information which are all hypothetically
admitted. These facts are to be tested against the essential elements of
the offense. Matters aliunde, as a rule, cannot considered, except under
the circumstances contemplated in Navarro and De la Rosa and as
permitted by Rule 117. The jurisprudential exceptions refer to the facts
brought out through the evidence adduced by the opposing parties during
the hearing of the motion to quash and those admitted or otherwise not
denied by the prosecution.
31 Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465
SCRA 465, 482, Reyes v. Camilon, G.R. No. 46198, 20 December 1990,
192 SCRA 445, 453 citing People v. Mendoza, 175 SCRA 743, 752.
32 G.R. No. 156320, February 14, 2007, 550 SCRA 690, 706.
324

the amendment under Section 32 of R.A. No. 7166 does not

affect the prosecution of the accused who was charged
under Section 261(q) of the Code.
WHEREFORE, we hereby GRANT the petition and
accordingly declare the assailed September 19, 2005
decision and the July 6, 2006 resolution of the Court of
Appeals in CA-G.R. SP No. 80223 respectively MODIFIED
and REVERSED. The case is remanded to the Regional

Trial Court of Boac, Marinduque for the arraignment and
trial of respondent Joel R. Pedro, after reflecting in the
Information the amendment introduced on Section 261(q)
of the Code by Section 32 of Republic Act No. 7166.
SO ORDERED.
Puno (C.J.), Quisumbing, Ynares-Santiago, Carpio,

Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-
Nazario, Velasco, Jr., Nachura, Leonardo-De Castro,
Peralta and Bersamin, JJ., concur.
Petition granted, judgment and resolution modified and

reversed.
Notes.·Where an accused voluntarily submits himself

to the court by entering a plea instead of filing a motion to
quash the information for lack of jurisdiction over his
person, he is deemed to have waived his right to assail the
legality of his arrest. (People vs. Castillon III, 366 SCRA
643 [2001])
Objection to the sufficiency of an Information on the
ground that it charges no offense is not deemed waived
despite failure of the accused to enter his objection in a
motion to quash before arraignment. (Herrera vs. Court of
Appeals, 377 SCRA 327 [2002])
··o0o··
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SUPREME COURT REPORTS ANNOTATED VOLUME 586 11/18/19, 7:46 AM

G.R. No. 173588. April 22, 2009.*

Criminal Procedure; Motion to Quash; Grounds; Words and

essence of the given right or as an inherent part thereof, so that the

304 SUPREME COURT REPORTS ANNOTATED

lapse of the time-bar operates to extinguish the right of the State to

Rule 117·all other reasons for seeking the dismissal of the

VOL. 586, APRIL 22, 2009 305

plaint or information, before arraignment and under the

PETITION for review on certiorari of the decision and

Pedro was charged in court for carrying a loaded firearm

1 Under Rule 45 of the Rules of Court.

306 SUPREME COURT REPORTS ANNOTATED

Serial No. 173-56836 outside his residence during the election

The accusation was based on Batas Pambansa Bilang

ammunition box containing 100 bullets; 3) two pieces speed

4 Id., pp. 65-66.

VOL. 586, APRIL 22, 2009 307

(RTC) for violation of the CodeÊs Article XXII, Section 261

5 SEC. 261. Prohibited Acts.·The following shall be guilty of an

residence or place of business or extension thereof.

308 SUPREME COURT REPORTS ANNOTATED

offense.‰9 Pedro attached to his motion a Comelec

The RTC reopened the case for further proceedings, as

9 Id., Section 3(h).

VOL. 586, APRIL 22, 2009 309

prohibition to nullify the RTCÊs mandated reopening.13 He

13 Docketed as CA-G.R. SP No. 80223, and titled as Joel R. Pedro v.

310 SUPREME COURT REPORTS ANNOTATED

filing of the Information against him stopped the running

The Court of Appeals Decision

The CA initially denied PedroÊs petition. For accuracy,

„The petition lacks merit.

VOL. 586, APRIL 22, 2009 311

4. the public prosecutor is served, with a copy of the order

of dismissal shall become permanent one year after the issuance

In his motion for reconsideration, Pedro manifested the

„On 9 September 2005, we ruled that Section 8, Rule 117 is

312 SUPREME COURT REPORTS ANNOTATED

dismissal. Therefore, the state is barred from reopening the case.

To summarize this ruling, the appellate court, while

Los Baños prays in his petition that the case be

16 (g) That the criminal action or liability has been extinguished.

VOL. 586, APRIL 22, 2009 313

Los Baños vs. Pedro

quashed. He adds that although the trial court granted the

314 SUPREME COURT REPORTS ANNOTATED

The issue is ultimately reduced to whether Section 8,

We find the petition meritorious and hold that the

(a) That the facts charged do not constitute an offense;

VOL. 586, APRIL 22, 2009 315

(d) That the officer who filed the information had no authority

„SEC. 8. Provisional dismissal.·A case shall not be

A case is provisionally dismissed if the following require-

1) the prosecution with the express conformity of the accused,

316 SUPREME COURT REPORTS ANNOTATED

3) the court issues an order granting the motion and dismissing

In People v. Lacson,21 we ruled that there are sine

VOL. 586, APRIL 22, 2009 317

those barred by the principle of double jeopardy,22 by the