Who Must Prosecute Criminal Actions
Sec. 5. Who must prosecute criminal actions. – All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. 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.(Read A.M.
NO. 02-2-07-SC [Effective May 01, 2002]
Latest Amendments to Section 5, Rule 110 of the Revised Rules of Criminal Procedure which provides: "Section 5. Who must prosecute criminal action. - 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case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. x x x .").
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the
same. The right to file the action granted to parents, grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the preceding paragraph.
No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at he instance of and upon complaint filed by the offended party.
The prosecution for violation of special laws shall be governed by the provision thereof.
WHO MAY PROSECUTE CRIMINAL ACTIONS?
> General rule: all criminal actions commenced by the filing of a complaint or information shall be prosecuted under the direction and control of the prosecutor
> In the MTC or MCTC, if the prosecutor is unavailable, the offended party, any peace officer or public officer in charge with the enforcement of the law violated may prosecute. This authority ceases upon actual intervention of the prosecutor or upon elevation of the case to the RTC.
CAN A PROSECUTOR BE COMPELLED TO FILE A PARTICULAR COMPLAINT OR INFORMATION?
> A prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support his allegations thereof
> May generally be not compelled by mandamus except if the prosecutor shows evident bias in filing the information and refuses to include co-accused without justification
> But before filing of mandamus, the party must first avail himself of such other remedies such as the filing of a motion for inclusion
> The power of prosecution is discretionary in nature