Withdrawing a Criminal Complaint After Filing with the Office of the Prosecutor
(Philippine Legal Context)
Practical note: This discussion is meant as general legal information, not as a substitute for individualized legal advice from a Philippine lawyer.
1. Where in the Process Are You?
| Stage | Who Has Custody of the Case? | Key Rule | Who Can Still “Stop” the Case? |
|---|---|---|---|
| A. Complaint-Affidavit just filed; no resolution yet | Investigating prosecutor (OCP/OPP) | Rule 112, §§ 3–5 | Prosecutor may dismiss; complainant’s desistance is persuasive, not binding. |
| B. Prosecutor has found probable cause and filed an Information in court (before arraignment) | Trial court, but under prosecution’s control | Rule 110, § 5 | Prosecutor may move to withdraw Information with leave of court; judge decides. |
| C. After arraignment / during trial | Trial court | Rule 110, § 14; Rule 119 | Only the court can dismiss (acquittal, demurrer, etc.); complainant’s desistance can no longer terminate the case. |
If the offense is a “private crime” under Article 344 of the Revised Penal Code (adultery, concubinage, seduction, abduction, acts of lasciviousness), the sworn complaint of the offended party is a jurisdictional requirement. Withdrawal of that complaint at any stage strips the prosecutor or court of authority to proceed.
2. Legal Foundations
Constitution, Art. III § 1 – Due process clause; prosecution exercises public authority.
Rules of Criminal Procedure
- Rule 110 (§ 5) – Information may be withdrawn before arraignment with leave of court.
- Rule 112 (§§ 3–5) – Prosecutor’s duty to determine probable cause and either file Information or dismiss.
DOJ National Prosecution Service Manual (2021) – Affidavit of Desistance is “only one item in the totality of evidence.”
Jurisprudence
- People v. Dizon (G.R. 226383, 14 Jan 2019) – Desistance does not by itself bar prosecution.
- People v. Columbrado (G.R. 107380, 22 Feb 1996) – Affidavit of Desistance is viewed with suspicion; courts must look beyond it.
- Montilla v. People (G.R. 181089, 20 Jan 2009) – For BP 22, full payment before judgment may justify dismissal.
- People v. Martinez (G.R. 153795, 7 Oct 2004) – In private crimes, offended party’s express will controls continuation.
3. Grounds Typically Invoked for Withdrawal
| Ground cited by complainant | Effect in practice |
|---|---|
| Settlement / restitution | May persuade prosecutor, especially for crimes where restitution cures harm (e.g., BP 22). Not binding in mala in se felonies (e.g., theft, homicide). |
| Mistake or lack of interest | Considered, but prosecutor still weighs independent evidence. |
| Fear, intimidation, or reconciliation | Affidavit of Desistance filed under duress can be disregarded. |
| Compromise allowed by law | Barangay settlement (LGC § 412) for light offenses; direct dismissal once confirmed. |
| Withdrawal in private crimes | Automatically terminates prosecution because the complaint is a condition precedent. |
4. How to Withdraw at Each Stage
4.1 During Preliminary Investigation
Prepare an Affidavit of Desistance / Motion to Withdraw Complaint
- Identify the case docket number, parties, and investigating prosecutor.
- State positive reason for desistance (e.g., misunderstanding has been settled, restitution completed).
- Declare that you executed the original complaint voluntarily and that you now freely withdraw it.
Attach supporting documents (evidence of settlement, receipts, barangay agreement).
File with the Office of the City/Provincial Prosecutor that has conduct of the investigation.
- Personal appearance is often required for the prosecutor to verify voluntariness; bring government-issued ID.
Possible outcomes
- Resolution of dismissal issued and served on both parties.
- Clarificatory hearing—the prosecutor may still require you to testify; if other evidence suffices, the case may continue.
4.2 After Information Is Filed but Before Arraignment
- Execute Affidavit of Desistance and request the prosecutor to file a Motion to Withdraw Information.
- The court must examine the prosecutor’s motion and the evidence on record, not merely the desistance.
- If the judge is convinced probable cause no longer exists, an order of dismissal issues; otherwise, arraignment proceeds.
4.3 After Arraignment
Desistance alone no longer ends the criminal action. Options are limited to:
| Option | Requirement | Result |
|---|---|---|
| Plea bargaining | Prosecutor and court consent | Conviction of lesser offense + civil liability. |
| Demurrer to evidence | Filed by accused after prosecution rests; granted only if evidence is insufficient—desistance may weaken evidence. | Acquittal. |
| Judicial compromise of civil action | Civil liability may still be settled and credited toward any eventual judgment. | No effect on criminal liability. |
5. Special Statutes
| Law | Peculiar rule on withdrawal |
|---|---|
| BP 22 (Bouncing Checks Law) | Complete payment of the face value plus charges before judgment is a recognized ground for dismissal or acquittal. |
| RA 9262 (Anti-VAWC) & RA 7610 (Child Abuse) | Settlement or desistance is not a valid ground for dismissal; prosecutor must proceed. |
| Dangerous Drugs Act (RA 9165) | Public interest is “paramount”; desistance ignored unless evidence fatally weak without complainant. |
6. Possible Consequences for Complainant
- Perjury / False Testimony – Recanting a materially false statement may expose the affiant.
- Civil liability for malicious prosecution – If complaint was groundless and motivated by malice.
- Administrative liability – If the complainant is a public officer acting in official capacity.
- Refund of docket fees – None; filing fees are generally non-refundable.
7. Practical Tips
- Draft the affidavit in plain, unequivocal language; avoid contradictory statements.
- File promptly—before the prosecutor resolves the case if your aim is to prevent the filing of an Information.
- Keep certified copies of the stamped-received affidavit and any dismissal resolution for your records.
- Remember the prescriptive period: withdrawal does not “freeze” prescription; the offended party (or the State, in non-private crimes) may re-file before it expires.
- In sensitive crimes (sexual offenses, child-related offenses), consider psychosocial support before choosing to desist.
8. Summary
Criminal offenses are public wrongs; once the machinery of the State has begun to act, the complainant’s desire to back out is only one factor among many. Desistance is fully effective in private crimes or in offenses where a sworn complaint is jurisdictional, persuasive at the preliminary-investigation level for most other felonies, and almost powerless once the Information survives arraignment. Understanding the exact procedural stage, citing valid grounds, and observing the correct form (affidavit, motion, settlement document) are essential to a successful withdrawal.