Short answer. The prosecution gets a chance first. Rule 117, Section 4 requires the court to give the prosecution an opportunity to correct the defect by amendment when the ground is that the facts charged do not constitute an offense. The motion is granted only if the prosecution fails to amend, or the defect persists despite the amendment.
What the law says
If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment.
Rule 117, Section 4 — Amendment of complaint or information. Read the full provision →
What the law says
The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.
Rule 117, Section 4 — Amendment of complaint or information. Read the full provision →
Curable defects trigger a right to amend, not automatic dismissal
Section 4 distinguishes between grounds that can be fixed and those that cannot. Where the motion to quash rests on an alleged defect that can be cured by amendment, the court orders that an amendment be made rather than dismissing the case outright — the flaw in drafting does not automatically end the prosecution. This reflects a general preference in the rules for resolving cases on their merits rather than on technical drafting defects that can readily be repaired without prejudicing the accused's ability to defend against the actual charge. This approach conserves judicial resources by avoiding a fresh filing over a defect that a simple amendment could resolve just as effectively.
Failure to state an offense gets the same second chance
Even the more serious-sounding ground that the facts charged do not constitute an offense is treated as correctable. The court gives the prosecution an opportunity to amend the complaint or information to properly state an offense, rather than immediately quashing the case for that defect alone. This is a meaningful protection for the prosecution's case, since even a fundamentally sound charge can otherwise be lost over an avoidable drafting shortfall that has nothing to do with whether a crime actually occurred.
When the motion is finally granted
The prosecution's opportunity is not indefinite. Section 4 grants the motion to quash if the prosecution fails to make the amendment when ordered, or if, despite the amendment, the complaint or information still suffers from the same defect. Only at that point does the curable defect actually result in the case being quashed, after the prosecution has already had its chance and still fallen short, does the motion to quash actually take effect and end the case for good. That structure gives the prosecution every reasonable opportunity to get the pleading right before the more drastic remedy of dismissal comes into play.