OCA Circular No. 39-02

The Supreme Court En Banc in its Resolution dated 10 April 2002, in A.M. No. 02-2-07-SC, RE: Proposed Amendments to Section 5, Rule 110 of the Revised Rules of Criminal Procedure, Resolved to approve the amendment to Sec. 5, Rule 110 to read as follows:

"Section 5. Who must prosecute criminal actions. — All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor, or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn.

xxx xxx xxx"

The aforequoted resolution did not state the entire first (1st) paragraph of Section 5, Rule 110 of the Revised Rules of Criminal Procedure resulting to confusion on the right of the offended party, any peace officer or public officer to prosecute the criminal cases before the Municipal Trial Courts or Municipal Circuit Trial Courts when the public prosecutor is not available. Such right on the part of the offended party, peace officer or public officer to prosecute the criminal case in the aforementioned courts is still in effect and not withdrawn. It is therefore necessary to state in toto the first (1st) paragraph of Section 5, Rule 110 as amended by the Supreme Court Resolution dated 10 April 2002 in A.M. No. 02-2-07-SC as follows:

"Section 5. Who must prosecute criminal actions. — All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor, or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court.

xxx xxx xxx" (emphasis ours)