(THE LAWYER'S POST)
"x x x.
Second, Co is burdened to establish the essential requisites of the first paragraph of Section 8, Rule 117 of the Rules, which are conditions sine qua non to the application of the time-bar in the second paragraph thereof, to wit: (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; and (4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.6 In this case, it is apparent from the records that there is no notice of any motion for the provisional dismissal of Criminal Cases Nos. 206655-59, 206661-77 and 209634 or of the hearing thereon which was served on the private complainant at least three days before said hearing as mandated by Section 4, Rule 15 of the Rules.7 The fact is that it was only in open court that Co moved for provisional dismissal “considering that, as per records, complainant had not shown any interest to pursue her complaint.”8 The importance of a prior notice to the offended party of a motion for provisional dismissal is aptly explained in People v. Lacson:9
x x x It must be borne in mind that in crimes involving private interests, the new rule requires that the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for the provisional dismissal of the criminal case. Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing. The proof of such service must be shown during the hearing on the motion, otherwise, the requirement of the new rule will become illusory. Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds, including: (a) the collusion between the prosecution and the accused for the provisional dismissal of a criminal case thereby depriving the State of its right to due process; (b) attempts to make witnesses unavailable; or (c) the provisional dismissal of the case with the consequent release of the accused from detention would enable him to threaten and kill the offended party or the other prosecution witnesses or flee from Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecution’s physical and other evidence and prejudice the rights of the offended party to recover on the civil liability of the accused by his concealment or furtive disposition of his property or the consequent lifting of the writ of preliminary attachment against his property.10
Third, there is evident want of jurisprudential support on Co’s supposition that the dismissal of the cases became permanent one year after the issuance of the June 9, 2003 Order and not after notice to the offended party. When the Rules states that the provisional dismissal shall become permanent one year after the issuance of the order temporarily dismissing the case, it should not be literally interpreted as such. Of course, there is a vital need to satisfy the basic requirements of due process; thus, said in one case:
Although the second paragraph of the new rule states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal.11
We hasten to add though that if the offended party is represented by a private counsel the better rule is that the reckoning period should commence to run from the time such private counsel was actually notified of the order of provisional dismissal. When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his/her given address.12 Section 2, Rule 13 of the Rules analogously provides that if any party has appeared by counsel, service upon the former shall be made upon the latter.13
Fourth, the contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one-year period is unsustainable. Such interpretation is not found in the Rules. Moreover, to permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply. Judicial notice must be taken of the fact that most, if not all, of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions. Hence, they could not be expected to act at all times on all pending decisions, incidents, and related matters within the prescribed period of time. It is likewise possible that some of them, motivated by ill-will or malice, may simply exercise their whims and caprices in not issuing the order of revival on time.
X x x.”
Second, Co is burdened to establish the essential requisites of the first paragraph of Section 8, Rule 117 of the Rules, which are conditions sine qua non to the application of the time-bar in the second paragraph thereof, to wit: (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; and (4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.6 In this case, it is apparent from the records that there is no notice of any motion for the provisional dismissal of Criminal Cases Nos. 206655-59, 206661-77 and 209634 or of the hearing thereon which was served on the private complainant at least three days before said hearing as mandated by Section 4, Rule 15 of the Rules.7 The fact is that it was only in open court that Co moved for provisional dismissal “considering that, as per records, complainant had not shown any interest to pursue her complaint.”8 The importance of a prior notice to the offended party of a motion for provisional dismissal is aptly explained in People v. Lacson:9
x x x It must be borne in mind that in crimes involving private interests, the new rule requires that the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for the provisional dismissal of the criminal case. Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing. The proof of such service must be shown during the hearing on the motion, otherwise, the requirement of the new rule will become illusory. Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds, including: (a) the collusion between the prosecution and the accused for the provisional dismissal of a criminal case thereby depriving the State of its right to due process; (b) attempts to make witnesses unavailable; or (c) the provisional dismissal of the case with the consequent release of the accused from detention would enable him to threaten and kill the offended party or the other prosecution witnesses or flee from Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecution’s physical and other evidence and prejudice the rights of the offended party to recover on the civil liability of the accused by his concealment or furtive disposition of his property or the consequent lifting of the writ of preliminary attachment against his property.10
Third, there is evident want of jurisprudential support on Co’s supposition that the dismissal of the cases became permanent one year after the issuance of the June 9, 2003 Order and not after notice to the offended party. When the Rules states that the provisional dismissal shall become permanent one year after the issuance of the order temporarily dismissing the case, it should not be literally interpreted as such. Of course, there is a vital need to satisfy the basic requirements of due process; thus, said in one case:
Although the second paragraph of the new rule states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal.11
We hasten to add though that if the offended party is represented by a private counsel the better rule is that the reckoning period should commence to run from the time such private counsel was actually notified of the order of provisional dismissal. When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his/her given address.12 Section 2, Rule 13 of the Rules analogously provides that if any party has appeared by counsel, service upon the former shall be made upon the latter.13
Fourth, the contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one-year period is unsustainable. Such interpretation is not found in the Rules. Moreover, to permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply. Judicial notice must be taken of the fact that most, if not all, of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions. Hence, they could not be expected to act at all times on all pending decisions, incidents, and related matters within the prescribed period of time. It is likewise possible that some of them, motivated by ill-will or malice, may simply exercise their whims and caprices in not issuing the order of revival on time.
X x x.”
