Withdrawal of a Criminal Complaint Before Filing in Court (Philippine Perspective) Everything practitioners, complainants, accused, and law-enforcement officers need to know
1. Context: Where “withdrawal” fits in the Philippine criminal-justice timeline
| Stage | Typical venue | Key instrument | Can the complainant still “withdraw”? |
|---|---|---|---|
| 1. Initial reporting / blotter | Police station; NBI; barangay | Incident or spot report | Yes—simply decide not to pursue a formal complaint. |
| 2. Barangay Katarungang Pambarangay (KP) mediation① | Punong Barangay / Lupon | KP complaint | Yes—by not appearing or by signing an amicable settlement; the case is never “criminal” yet. |
| 3. Sworn complaint with the Office of the Prosecutor (OP) | City/Provincial Prosecutor or Ombudsman | Sworn Complaint-Affidavit with attachments | Yes, but subject to the prosecutor’s discretion (Rule 112, §3). |
| 4. Preliminary investigation (counter-affidavits, clarificatory hearing) | Same | Counter-Affidavits, Position Papers | Same as Stage 3. |
| 5. Resolution and Information prepared, approved, and filed in court | Prosecutor’s Office → RTC/MTCC/SB/Sandigan | Information | No—only the public prosecutor or the court may move for dismissal. |
①Except offenses punishable by > 1-year imprisonment, a fine > ₱5,000, or where one party is a government unit/official acting in an official capacity (LGC 1991, §§408–409).
2. Governing sources
Rule 110, Rules of Criminal Procedure – defines “complaint” and “information.”
Rule 112 – outlines preliminary investigation and inquest, and vests full control of prosecution in the public prosecutor once a complaint is filed.
Judicial precedents
- People v. Dizon (G.R. 148767, 27 June 2001) – affidavit of desistance does not automatically result in dismissal.
- Villareal v. Aliga (G.R. 188218, 25 Jan 2017) – withdrawal before filing in court generally ends the matter, unless a public crime.
- Domingo v. Sandiganbayan (G.R. 200332, 28 Jan 2015) – once the Information is in court, nolle prosequi is a judicial—not executive—function.
Special laws
- Private-complainant-dependent offenses (e.g., libel, RA 9262 psychological violence, RA 8353 qualified seduction).
- “Public crimes” like murder, graft, illegal drugs—interests of the State override private desistance.
National Prosecution Service (NPS) Manual 2017 §§7.11–7.13 – internal rules on motions to withdraw.
3. Why withdraw a complaint?
- Compromise/settlement – restitution of property, indemnity, apology.
- Mistake or lack of interest – complainant misidentified the perpetrator or no longer wishes to prosecute.
- External pressures – workplace harmony, family relations, or intimidation (note possible Anti-Graft or Anti-Trafficking implications).
- Procedural economy – minor offenses better addressed via barangay mechanisms or civil mediation.
4. Mechanics of withdrawal before filing in court
Prepare an Affidavit of Desistance
Must be sworn before a prosecutor, notary, or proper official.
State unequivocally that:
- the complainant is withdrawing the complaint;
- no consideration was received or disclose any consideration to pre-empt B.P. 22 or RA 3019 concerns;
- the complainant understands that withdrawal may not automatically end the case.
File the affidavit with the same docketing unit where the complaint is pending, before the prosecutor issues a Resolution or files the Information.
Prosecutor’s options (Rule 112, §3, §4):
Dismiss outright if evidence now appears insufficient (common in B.P. 22 or slight physical injuries).
Continue motu proprio if the offense is:
- a public crime (e.g., homicide, drugs, graft), or
- involves public interest (e.g., environmental laws, VAWC with child-victims).
Require clarificatory hearing to probe voluntariness or compulsion.
Effect if dismissed at this stage
- No double jeopardy attaches—the Information was never filed.
- Civil liability remains. A separate civil action may still prosper (Art. 29, Civil Code).
- The complainant may re-file if within the prescriptive period (Art. 90, RPC; special laws).
5. Special classes of crimes
| Offense category | Need for private complainant’s participation? | Prosecutor bound by withdrawal? |
|---|---|---|
| Private crimes (adultery, concubinage, acts of lasciviousness under Art. 336, seduction, abduction, libel)② | Yes – complaint signed by offended party (Art. 344, RPC; Art. 360 on libel) | Yes, generally. No complaint means no prosecution. Withdrawal = case closed unless public order is gravely affected. |
| Crimes requiring DOJ/Ombudsman approval (plunder, graft, violations of procurement law) | Not dependent on private complainant | No. Prosecution continues. |
| VAWC under RA 9262, child abuse RA 7610 | Victim’s testimony helpful but State interest is paramount | No—especially if there is imminent danger to victim. |
| B.P. 22 (bouncing checks) | Private, but considered harmful to banking system | Prosecutor may still dismiss but often consults the NPS Manual; settlement with full payment frequently suffices. |
②Compromise between parties may even be raised as bar to prosecution if reached before the prosecutor acts on the complaint (e.g., People v. Jalbonian, G.R. 167975, 11 Dec 2013).
6. Practical drafting tips for lawyers
Use precise language: “I hereby desist and withdraw my complaint against (name) docketed as NPS No. ____.”
Address both criminal and civil aspects:
- If settlement extinguishes civil liability, say so explicitly.
- Stipulate waiver of further claims to prevent future suits.
Attach proof of restitution if property or money was returned.
If fear or intimidation exists, consider:
- filing the affidavit in camera;
- requesting witness protection (RA 6981);
- simultaneously reporting threats under Art. 282 (grave threats).
Always send a courtesy copy to the respondent’s counsel; this can expedite a joint motion to dismiss.
7. Ethical and policy considerations
- Prosecutorial independence: Once sworn statements are submitted, the case belongs to the People of the Philippines. The complainant becomes, at best, a principal witness.
- Abuse deterrence: Habitual offenders might coerce desistance; prosecutors weigh voluntariness carefully.
- Alternative dispute resolution (ADR): Minor offenses may fit mediation-cum-restitution better than punitive justice, aligning with restorative-justice goals in the Juvenile Justice & Welfare Act (RA 9344).
- Anti-corruption safeguards: Any payment/settlement must avoid bribery implications (Art. 212 RPC; RA 3019).
8. After the Information is already in court
If the complainant “withdraws” after filing, options narrow:
- Affidavit of desistance converts into a hostile witness scenario. The prosecutor may subpoena and compel appearance; refusal constitutes indirect contempt.
- Court dismissal motu proprio under Rule 119, §16 (“Demurrer to Evidence”) or Rule 117, §3 (dismissal of complaint) is possible only after hearing—and is solely a judicial decision.
- Civil compromise may still be approved under Art. 2034, Civil Code, but it does not erase criminal liability for public offenses.
9. Checklist for prosecutors
Verify docket number and completeness of the desistance affidavit.
Examine voluntariness—look for indicators of duress.
Assess the nature of the offense: public vs. private.
Weigh evidence aliunde; if strong, proceed despite desistance.
Issue a formal Resolution either:
- dismissing the complaint; or
- finding probable cause and filing the Information.
Serve copies to parties within five (5) days (Rule 112, §3(f)).
10. Frequently asked questions
| Question | Short answer |
|---|---|
| Is an affidavit of desistance mandatory? | No. A letter or verbal manifestation can suffice, but the prosecutor will usually require a sworn statement for the record. |
| Will my “blotter” be erased? | No. Police blotters are permanent; only separate criminal prosecution is affected. |
| Can I re-file if I change my mind again? | Yes, if still within the prescriptive period and no Resolution on the merits with prejudice was issued. |
| Will immigration hold-departure orders automatically lift? | If issued only because of the pending complaint (BI Operations Order SBM-2016-040), the prosecutor’s dismissal generally triggers LIFTING, but a motion for lifting must still be filed. |
11. Conclusion
Withdrawal of a criminal complaint before it reaches the court is relatively straightforward when (a) the offense is private or petty, (b) the complainant acts voluntarily, and (c) public interest is minimal. Yet, even at this pre-judicial phase, the ultimate gatekeeper is the public prosecutor, whose duty is to balance private settlement with the State’s mandate to punish crimes that imperil social order. A complainant’s desistance is influential—but never conclusive—in that balancing act.
This article is for informational purposes only and does not constitute legal advice. For specific cases, consult qualified Philippine counsel or the Office of the Prosecutor handling your matter.