Law 213 - Criminal Procedure

PRELIMINARY INVESTIGATION (Rule 112 Rules of Criminal Procedure)

By : Belsa, Belle Feriese

Bosoen, Arvin

Flores, Elloisa Mae

Sanchez, Klarie Gabrielle

A. DEFINITION, NATURE and PURPOSE

1. Definition (Section 1, Rule 112)

→“xxx Preliminary investigation is an inquiry or a proceeding xxx”

Note: Preliminary investigation is inquisitorial because a prosecutor does not exercise adjudication or rulemaking,
rather enables him to prepare his complaint or information to be filed against a possible crime.

2. Purpose (Section 1, Rule 112)

→ “xxx the purpose of which is to determine whether there is sufficient ground to engender a well-founded belief
that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial xxx”

→ Preliminary investigation determines the following:

a. Whether or not a crime has been committed
b. Whether or nor the respondent is PROBABLY guilty
c. Whether or not there is probable cause

Note: The ULTIMATE PURPOSE of preliminary investigation is to “secure the innocent against hasty, malicious
and oppressive prosecution and to protect him from an open and public accusation of a crime, from the trouble,
expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions”. (Sales
v. Sandiganbayan, G.R. No. 143802)

3. Cases Requiring Preliminary Investigation (Section 1, Rule 112)

→A preliminary investigation is required to be conducted before the filing of a complaint or information for an
offense where the penalty is at least four (4) years, two (2) months and one (1) day without regard to the fine.

Exception: Except as provided in Sec. 7 of this Rule

→Before the amendatory provisions of R.A. 7691 took effect, preliminary investigations were conducted only for
offenses cognizable by Regional Trial Courts.

4. Nature
a. Executive function

→The prosecutor is an office in the executive department exercising powers akin to those of a court.
(Bautista vs. CA, GR No. 143375)

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→Preliminary investigation is executive in nature, not a judicial function because it is part of the
prosecutor’s job and not part of the trial (Metropolitan Bank and Trust Company vs. Tondo, 338 SCRA
254)

b. A Statutory Right

→A statutory right is a right invoked only when specifically created by a statute.

→A preliminary investigation is NOT required under the Constitution, is NOT a fundamental right, and is
NOT among those rights guaranteed by the Bill of Rights.

Note: But since it has been established by a statute, it becomes a component of due process in criminal
justice (Doromal vs. Sandiganbayan, 177 SCRA 354)

c. Not a trial but a mere inquiry or proceeding

→ A preliminary investigation is not intended to usurp the function of a trial court, not a casual affair, but
is in effect a realistic judicial appraisal of the merits of the case.

→A preliminary investigation has been called a judicial inquiry or a judicial proceeding.

Note: An act becomes a judicial proceeding when there is an opportunity to be heard and for the
production of and weighing of evidence, and a decision is rendered thereon. (Cruz v. People, 233 SCRA
439)

d. Does not determine guilt beyond reasonable doubt

→A preliminary investigation does not determine the guilt or innocence of the accused, not exercise
adjudication or rule-making functions.

→Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons
who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or
information.

→A preliminary investigation is not the same as a quasi-judicial court:

1) The Department of Justice is not one of those agencies where orders, decisions and resolutions are
appealable to the Court of Appeals (Santos vs. Go, G.R No. 156081);
2) The merits and the purpose of the trial has no purpose, except of determining whether a crime has
been committed and whether there is probable cause to believe that the accused is guilty thereof.
3) While the fiscal makes the determination of whether or not a crime has been committed and there
is probable cause, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately,
that pass judgment on the accused, not the fiscal. (Spouses Balanguan v. CA, G.R. No. 17435)

Note: A quasi-judicial body described as an organ of government other than a court and other than a
legislature which performs adjudicatory functions and affects affects the rights of private parties either
through adjudication or rule-making.

e. Right can be waived

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→The right to a preliminary investigation may be waived for failure to invoke the right prior to or at the
time of the plea (People v. Gomez, 117 SCRA 73)

5. Concept of Probable Cause

a. Definition

→Probable cause is the existence of such facts and circumstances as would lead a person of ordinary
caution and prudence to entertain an honest and strong suspicion that the person charged is guilty of the
crime subject of the investigation.

→ Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer
acts upon reasonable belief.

b. Quantum of evidence required to establish probable cause

→Quantum of evidence is referred to to mean a clear, strong evidence which leads a well-guarded
dispassionate judgment to the conclusion that the offense has been committed as charged, that the accused
is the guilty agent, and that he will probably be punished capitally if the law is administered.

Note: An investigating prosecutor is under no obligation to file a criminal action where he is not convinced
that he has the quantum of evidence at hand to support the averments.

c. Kinds of determination of probable cause (Mendoza vs. People, G.R. No. 197293):
1) Executive determination: One made during preliminary investigation that pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause exists and to
charge those whom he believes to have committed the crime as defined by law and thus should be
held for trial.

2) Judicial determination: One made by the judge to ascertain whether a warrant of arrest should
be issued against the accused.

Note: When an information filed is invalid or the prosecutor committed error, a judge's determination of
probable cause is limited only to the judicial kind or for the purpose of deciding whether the arrest warrants should
be issued.

d. Review the court of the prosecutor’s finding of probable cause (Aguilar vs. DOJ, G.R. No. 197522)

I. General Rule: “It is well-settled that courts of law are precluded from disturbing the findings of
public prosecutors and the DOJ on the existence or non-existence of probable cause for the purpose of
filing criminal informations, unless such findings are tainted with grave abuse of discretion, amounting
to lack or excess of jurisdiction.”

→Rationale: The principle of separation dictates that the determination of probable cause for the
purpose of indicting a suspect is properly an executive function

→Underlying principle: Review the court of the prosecutor’s finding of probable cause ensure that the latter acts
within the permissible bounds of his authority or does not gravely abuse the same.

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II. Exception: The limiting principle of checks and balances dictates that the judiciary, through a
special civil action of certiorari , has been tasked by the present Constitution " to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government

→Grave abuse of discretion refers to capricious or whimsical exercise of judgment as is

equivalent to lack of jurisdiction.

e. Four instances where probable cause needs to be established

→Section 1 of Rule 112: Preliminary Investigation defined; when required

→Section 3 of Rule 112: Procedure of preliminary investigation

→Section 6 of Rule 112: When the warrant of arrest may issue

→Section 9 of Rule 112: Cases not requiring preliminary investigation nor covered by the Rule on
Summary Procedure

→Section 5(b) of Rule 113: When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has committed it.

→ü Section 4 of Rule 126: Requisites for issuing a search warrant

B. Officers authorized to conduct Preliminary Investigation (Sec. 2, Rule 112) :

(a) Provincial or City Prosecutors and their assistants;

(b) National and Regional State Prosecutors; and
(c) Other officers as may be authorized by law.
● COMELEC has the power to conduct preliminary investigation of all election offenses punishable under
the Omnibus Election Code
● Office of the Ombudsman- has the authority to investigate and prosecute on its own or on complaint by any
person any act or omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal, unjust or improper.
o Has primary jurisdiction over cases cognizable by the Sandiganbayan
o Office of the ombudsman has full authority to issue subpoenas (and subpoenas duces tecum) for
compulsory attendance of witnesses and the production of documents and information relating under its
investigation
● The Presidential Commission on Good Government with the assistance of the Office of the Solicitor
General and other government agencies is empowered to investigate, file and prosecute cases investigated
by it (EO. No. 14)

C. Procedure in the conduct of a Preliminary Investigation (Sec. 3, Rule 112)

1. Filing of the complaint with the investigating prosecutor (Sec. 3a)

➢ The complaint shall be accompanied by:

● The affidavits of the complainant
● The affidavits of his witnesses
● Other supporting documents

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*These affidavits shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who
must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed
and understood their affidavits.

➢ They shall be in such number of copies as there are respondents, plus two (2) copies for the official file.

2. Dismissal of the complaint or issuance of a subpoena(Sec. 3b)

➢ Within ten (10) days after the filing of the complaint, the investigating officer shall either:

A. Dismiss the complaint if he finds no ground to conduct the investigation; or

B. Issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits
and documents in case he finds the need to continue with the investigation.

● In connection with Sec. 3(b), Rule 112 of the Revised Rules of Criminal Procedure, a respondent’s
right to examine refers only to “the evidence submitted by the complainant” (Estrada v. Office of
the Ombudsman)

➢ The respondent shall have the right to examine the evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant
may be required to specify those which he intends to present against the respondent, and these shall be
made available for examination or copying by the respondent at his expense. Objects as evidence need not
be furnished a party but shall be made available for examination, copying, or photographing at the expense
of the requesting party.

3. Filing of counter-affidavit by the respondent (Sec. 3c)

1. Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense.

➢ The counter-affidavits shall be subscribed and sworn to before any prosecutor or before any
government official authorized to administer oaths, with copies thereof furnished by him to the
complainant.
➢ The officer or notary public must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
➢ The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

2. Section 3(c), Rule 12 of the Revised Rules on Criminal Procedure, grants a complainant the right,
to receive a copy of the respondent’s counter affidavit. The failure to give the complainant a copy of the
counter-affidavit is a procedural defect(Artillero v. Casimiro)

3. Common Practice: Filing of a reply to the counter affidavit, denominated as a reply-affidavit, is

allowed. The respondent is also allowed to rebut the reply affidavit through a rejoinder affidavit.
4. Action to be taken if the respondent does not submit his counter-affidavit (Sec. 3d)

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➢ If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits

within the ten (10) day period, the investigating office shall resolve the complaint based on the
evidence presented by the complainant.

5. Clarificatory hearing if necessary

➢ The investigating officer may set a hearing if there are facts and issues to be clarified from a party
or a witness. The parties can be present at the hearing but without the right to examine or cross-
examine. They may, however, submit to the investigating officer questions which may be asked to
the party or witness concerned.
➢ The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within
five (5) days.

6. Determination by the investigating officer

➢ Within ten (10) days after the investigation, the investigating officer shall determine whether or
not there is sufficient ground to hold the respondent for trial.

D. Resolution of the investigating prosecutor and its review (Section 4, Rule 112)

➢ If found cause to hold respondent for trial, the investigating officer shall prepare the resolution and
information. Otherwise, he shall recommend the dismissal of the complaint.
● The information shall contain a certification by the investigating officer under oath in which
he shall certify to the ff:

A. That he, or as shown by the record, has personally examined the complaint and his witnesses;
B. There is reasonable ground to believe that a crime has been committed;
C. That accused is probably guilty thereof;
D. Accused was informed of the complaint and of the evidence submitted against him; and
E. He was given opportunity to submit controverting evidence.

● Effect of the absence of required certification:

-The information shall be valid for reason that certification is not an essential part of the information itself
and its absence cannot vitiate it as such. (Alvizo v. Sandiganbayan).

-What is not allowed is the filing of the information without preliminary investigation having been
previously conducted. (People v. Lapura)

➢ Within five (5) days from his resolution, he shall forward the record of the case to the:

A. Provincial; or
B. city prosecutor; or
C. chief state prosecutor; or
D. to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan

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● They shall act on the resolution within ten days from their receipt thereof and shall immediately inform the
parties of such action. no complaint or information may be filed or dismissed by an investigating officer
without the prior WRITTEN AUTHORITY OF APPROVAL of the officials stated above.

➢ When recommendation is disapproved

When the recommendation of the investigating prosecutor for dismissal is disapproved, the provincial, or city
prosecutor, or chief prosecutor, or the Ombudsman, may file the information against the respondent, or direct any
other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

➢ Appeals to the Secretary of Justice

APPEAL IS MADE by filing a petition for review with the office of the Secretary of the Department of
Justice. The prosecutor’s ruling is reviewable by the Secretary of Justice who has the power to reverse, modify, or
affirm it.

APPEAL shall be taken within 15 days from receipt of the assailed resolution. (Department Circular No.
70, NPS Rule on Appeal, DOJ)

➢ Remedy of Respondent

The only proper remedy of respondent against the resolution of the Secretary of Justice is through a
petition for certiorari under Rule 65 of the Rules of Court, solely on the ground that the Secretary of
Justice committed grave abuse of discretion amounting to lack of jurisdiction. It shall be reviewed by the
Court of Appeals.

➢ Appeal to the Office of the President

-MEMORANDUM CIRCULAR NO. 58 provides that appeals for petition for review of
decision/orders/resolutions of the Sec. of Justice are entertained by the Office of the President on the following
CONDITIONS:

A. Offense is punishable by reclusion perpatua to death

B. New and material issues are raised which were not presented before the DOJ
C. Prescription of the offense is not due to lapse within 6 months from notice of the questioned resolution.
D. Appeal or petition for review is filed within 30 days from notice

-Event of an adverse decision against the appellant: verified petition for review may be taken to the CA within 15
days from notice of the final order of the president of the office of the president following Rule 43 Rules of Court
procedures.

➢ Appeals under Rule 43 and Rule 45

1. From the Office of the President:

The aggrieved party may file an appeal with the CA pursuant to Rule 43

2. From the CA:

The party aggrieved may avail an appeal by certiorari to the Supreme Court under Rule 45

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G. Cases not requiring preliminary investigation

1. Accused arrested without warrant (Section 7 Rule 112)

When a person is lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a prosecutor without need of such
investigation provided an inquest has been conducted in accordance with existing rules. In the absence or
unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace office
directly with the proper court on the basis of the affidavit of the offended party or arresting officer or
person.

2. Offenses where the penalty does not exceed four years, two months and one day (Section 9 Rule 112)

The procedure outlined in section 3(a) of this Rule shall be observed.

3. Offenses covered by the rule on summary procedure (Section I B Rules on Summary procedure)

(1) Violations of traffic laws, rules and regulations;

(2) Violations of the rental law;

(3) Violations of municipal or city ordinances;

(4) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment
not exceeding six months, or a fine not exceeding (P1,000.00), or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving
damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed
ten thousand pesos (P10,000.00).

4. Procedure for cases not requiring a preliminary investigation

A. Direct filing with the prosecutor’s office

If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of
less four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be
observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents
submitted by the complainant within ten (10) days from its filing.

B. Direct filing with the Municipal Trial Court

If the complaint or information is filed directly with the Municipal Trial Court or Municipal Circuit Trial
Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within
ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally
evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses
in the form of searching question and answers, he shall dismiss the same. He may, however, require the submission
of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the
judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission
or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied

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that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of
arrest.

H. Remedies

Remedies available to the arrested person:

1. before the filing of information in court:

a. Waive article 125 of RPC with assistance of counsel and avail of a 15-day Preliminary Investigation.
(May still post bail)
b. Habeas Corpus
c. May post bail if offense is bailable – Inquest Prosecutor will issue a certification that the person
arrested is being charged with an offense in an inquest proceeding and specifying the recommended
bail
- Posting bail does not constitute waiver of the invalidity of the warrantless arrest

2. After filing info in court:

a. Ask for Preliminary Investigation within 5 days from learning of the filing
b. Motion to Quash Information

I. Inquest proceedings (DOJ Circular No. 61 Series of 1993 Rules on Inquest)

Inquest Proceeding is defined as an informal inquiry and summary investigation conducted by a public
prosecutor in criminal cases involving persons arrested and detained w/o the benefit of a warrant of arrest issued by
the court for the purpose of determining whether or not said persons should remain under custody and
correspondingly be charged in court.

PURPOSE: To determine whether the person arrested w/o warrant shall remain under custody and shall
correspondingly be charged in court.

COVERAGE:

1. All offenses covered by the RPC and special laws, rules and regulations;
2. Where the respondent is a minor, the inquest investigation shall cover only offenses punishable by
imprisonment of not less than 6 years & 1 day + a finding of discernment from the LSWDO ( Dept Circ
No. 39, s of 2007).

Officer who conducts inquest

Inquest Prosecutor. The arresting officer must bring the arrestee before the inquest fiscal to
determine whether the person should remain in custody and charged in court or if he should be released for
lack of evidence or for further investigation.

Commencement of inquest proceedings

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Shall be considered commenced upon receipt by the inquest prosecutor from the law enforcement
authorities of the complaint/referral documents which include:

a. The Affidavit of arrest;

b. The investigation report;
c. The statements of the complainant and witnesses and
d. other supporting evidence gathered by the police.

6. Duties of inquest prosecutor

1. Determine whether warrantless arrest is valid. [Sec. 8, DOJ Circ. No. 61 (1993)]
2. If warrantless arrest is improperly made, Inquest officer recommends to the City Prosecutor the release
of the arrested person [Sec. 9, DOJ Circ. No. 61 (1993)]
3. If warrantless arrest is validly made, the Inquest officer asks the detained person if he desires to avail of
a PI. If he does, he must execute a waiver of Art. 125, RPC, with the assistance of a lawyer and, in case of
non-availability of a lawyer, a responsible person of his choice [Sec. 10, DOJ Circ. No. 61 (1993)]
4. If detained person does not opt for a PI or refuses to execute the waiver, the Inquest officer determines
the probable cause that the accused is probably guilty [Sec. 11, DOJ Circ. No. 61 (1993)]
5. If there is probable cause, the Inquest officer prepares the complaint/information and forward it, together
with the records of the case, to the City Prosecutor for appropriate action [Sec. 13, DOJ Circular No. 61
(1993)]

7. Factors considered in determining if there is a violation of Article 125 of the Revised Penal Code
-
8. Waiver of Article 125 of the Revised Penal Code
-Should it be found that the arrest was properly effected, the inquest shall proceed but the inquest Officer shall first
ask the detained person if he desires to avail himself of a preliminary investigation and if he does, he shall be made
to execute a waiver of the provisions of Article 125 of the Revised Penal Code with the assistance of a lawyer. The
preliminary investigation may be conducted by the Inquest Officer himself or by any other Assistant Prosecutor to
whome the case may be assigned. (Sec 10, Part II, Manual for Prosecutors.)

Waiver shall be in writing, signed in the presence of counsel

Instances when presence of detained person dispensed with

9. Instances when presence of detained person dispensed with

SEC. 6.Presence of the detained person.—The presence of the detained person who is under custody shall be
ensured during the proceedings. However, the production of the detained person before the Inquest Officer may be
dispensed with in the following cases:
a. if he is confined in a hospital;
b. if he is detained in a place under maximum security;
c. if production of the detained person involve security risks; or
d. if the presence of the detained person is not feasible by reason of age, health, sex and other similar factors.

The absence of the detained person by reason of any of the foregoing factors must be noted by the Inquest Officer
and reflected in the record of the case.

10. Distinction of an inquest proceeding from a preliminary investigation

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An inquest is an investigation conducted by a prosecutor in criminal cases where a person has been lawfully arrested
and detained without a warrant of arrest. It is informal and summary and its purpose is to determine whether or not
the person detained should remain under custody and then charged in court(Sec. 1, Part II, Manual for Prosecutors)

Preliminary Investigation Inquest

Inquiry or a proceeding the purpose of which is to an informal and summary investigation conducted by a
determine whether there is sufficient ground to public prosecutor in criminal cases involving persons
engender a well-founded belief that a crime has been arrested and detained without the benefit of a warrant
committed and the respondent is probably guilty. of arrest issued by the court for the purpose of
determining whether said persons should remain under
custody and correspondingly be charged in court

11. Remedies of an arrested person

(From Leviste v Hon. Alameda, G.R. No. 182677, August 3, 2010)
a. Before filing of the information in court

- Before the complaint or information is filed by the prosecutor, the person arrested may ask for a
preliminary investigation but he or she must sign a waiver of the provision of Article 125 of the Revised
Penal Code, as amended, in the presence of his counsel. Article 125 provides penalties against the public
officer or employee who shall delay in the delivery of detained persons to the proper judicial authorities
within the period of: 12 hours, 18 hours, or 36 hours, depending on the gravity of the offense.
Notwithstanding the waiver, the person arrested may apply for bail and the investigation must be
terminated within 15 days from its inception.
The private complainant may proceed in coordinating with the arresting officer and the inquest officer during the
latter’s conduct of inquest. Meanwhile, the arrested person has the option to avail of a 15-day preliminary
investigation, provided he duly signs a waiver of any objection against delay in his delivery to the proper judicial
authorities under Article 125 of the Revised Penal Code.

Leviste v Hon. Alameda, G.R. No. 182677, August 3, 2010

b. After the filing of information in court

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within
five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with another
opportunity to ask for a preliminary investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke, as
respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation.

The Court holds that the private complainant can move for reinvestigation, subject to and in light of the ensuing
disquisition.

In case the inquest proceedings yield no probable cause, the private complainant may likewise pursue the case
through the regular course of a preliminary investigation. Once a complaint or information is filed in court, the

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accused is provided with another opportunity to ask for a preliminary investigation within five days from the time
she or he learns of its filing.

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