Chapter IV

Rule 112
PRELIMINARY INVESTIGATION

Presented by:
AEJAY VILLARUZ BARIAS
PCU College of Law
 Definition
Under Rule 112, Sec 1 of the Rules of Court:

Preliminary investigation is “an inquiry or a

proceeding the purpose of which is to determine
whether there is a 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”
“It is a statutory and substantive
right accorded to the accused
before trial. Denial thereof
amounts to lack of due process”

(Villaflor vs Vibar, 349 SCRA 194)

 Preliminary Investigation is
required to be conducted BEFORE the
filing of a complaint or information
for an offense where the penalty
prescribed by law is at least 4 years, 2
months and 1 day without regard to
the fine.
 Specific Purpose
Callo-Claridad vs Esteban, 694 SCRA 185,198-199, Mar. 30,2013
To determine whether a crime has been
committed and whether there is probable cause
to believe that the accused is guilty thereof;

To preserve the evidence and keep the witnesses

within the control of the State.

To determine the amount of bail, if the offense is

bailable.
Ledesma vs CA, 278 SCRA 656, 673-674
To free a respondent from the inconvenience,
expense, ignominy and stress of defending
himself in the course of a formal until the
reasonable probability of his guilt has been
passed upon in a more or less summary
proceeding by a competent officer designated
by law for that purpose.
Nature of Preliminary Investigation
Conduct of Preliminary Investigation is a
function that belongs to the Public
Prosecutor.
The court cannot interfere with the
determination of Probable cause in the
absence of grave abuse of discretion.
Right to have a Preliminary Investigation
before trial is STATUTORY rather than
CONSTITUTIONAL.
Preliminary Investigation is a mere
inquiry or a proceedings.
Preliminary Investigation is not the
occasion for the full & exhaustive
display of parties’ evidence
 Preliminary Investigation:
Personal Statutory Rights
The right to preliminary investigation is a
personal right covered by statute and may be
waived expressly or by implication.

Absence of preliminary investigation does not

affect the jurisdiction of the court or invalidate
the information if no objection was raised by
the accused.
Remedies of the accused if there
was no Preliminary Investigation:
Refuse to enter a plea upon arraignment and
object to further proceedings upon such
ground
Insist on a preliminary investigation
File a certiorari, if refused
Raise lack of preliminary investigation as error
on appeal
File for prohibition
 Preliminary Investigation
VS
Preliminary Examination/ Inquiry
Preliminary Investigation Preliminary Examination

Executive Department Judicial Department

Public Prosecutor Judge

Whether probable cause exist & to

charge to those believed to have To ascertain whether a warrant of
committed the crime as defined by arrest should be issued against the
the law & thus, should be held for accused
trial
 Instances when probable cause
needs to be established
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. (Secs.1 & 3, Rule 112)
To determine whether a warrant of arrest or
commitment order shall be issued and that there
is a necessity of placing the respondent under
immediate custody in order not to frustrate
the ends of justice (Secs.5 & 8, Rule 112)
By a peace officer or a private person making a
warrantless arrest. (Sec.5b, Rule 113)
By the Judge, to determine whether a search
warrant shall be issued. ( Sec.4, Rule 126)
Officers Authorized to conduct a
Preliminary Investigation:
Provincial or city fiscal and their assistants

National and regional state prosecutors

Such other officers as may be authorized by
law such as: the COMELEC, Ombudsman and
Presidential Commission on Good Governancev
Filing of the complaint
accompanied by the affidavits
and supporting documents.
Procedure
Within 10 days after the filing, the
investigating officer shall either
dismiss or issue subpoena.

If subpoena is issued, respondent shall

submit a counter-affidavit and other
supporting documents within 10 days
from receipt thereof.

Hearing (optional). It shall be held within

10 days from submission of counter-
affidavits or from the expiration of the
period of their submission.

Resolution of investigating prosecutor

(Sec. 4 & 5).
Ways of initiating criminal action for cases
not requiring preliminary investigation
(crimes with penalty of imprisonment of less than 4 years, 2 months & 1day)

By filing the complaint directly with the

prosecutor
By filing the complaint or information with
the Municipal Trial Court
 There is NO right of preliminary
investigation under Section 6, Rule 112 when a
person is LAWFULLY arrested unless there is a
waiver of the provisions of Article 125 of the
Revised Penal Code.
HOWEVER, the accused can ask for Preliminary
Investigation in the following cases:
 If a person is arrested, he can ask for preliminary
investigation BEFORE the filing of the
complaint/information BUT he must sign a waiver in
accordance with Article 125, RPC.
 AFTER the filing of the information/complaint, the
accused may, within 5 days from the time he
learns of its filing ask for preliminary
investigation.
 Inquest Proceedings
Proper only when the accused has been lawfully
arrested without a warrant
Inquest Proceedings is a summary investigation and
which does not follow the procedures set forth in
Sec.3, Rule 112 of Rules of Court
The inquest proceedings shall be deemed
commenced from the time the Inquest Officer
receives the complaint & referral documents from the
law enforcement authorities
Documents include:
 Affidavit of Arrest
 Investigation Report
Statement of complainant and witnesses
 Other supporting evidence gathered

Detained person should be present during the

Inquest Proceedings unless reasons exist that would
dispense with his presence like confinement in
hospital, detention in places requiring maximum
security or his presence is not feasible.
Action to be taken if the respondent
does not submit his counter-affidavit

If despite the subpoena, the respondent does not

submit his counter affidavit within 10-day period ,the
investigating officer shall resolve the complaint based
on the evidence presented by the complainant.
 Clarificatory Hearing
A hearing may be set by the Investigating officer
within 10 days from the submission of counter-
affidavit or from the expiration of the period for their
submission, if there are facts or issues to be clarified
either from a party or witness.
If parties have question to ask, they shall submit the
questions to the Investigating officer who shall ask
the question to the parties or witness
The hearing shall be terminated within 5 days
 Rights of Respondent in a
Preliminary Investigation
To submit counter-affidavits

To examine evidence submitted by the

complainant

To be present in the clarificatory hearing.

 Resolution of Investigating
Prosecutor
If the prosecutor does not find probable cause,
he shall recommend the dismissal of the
complaint
If the prosecutor finds cause to hold the
respondent for trial, he shall prepare both the
resolution and information
The information shall contain a certification by
the investigating officer under oath in which
he shall certify the following:
That h or as shown in the record, an authorized officer,
has personally examined the complainant and his
witnesses
That there is reasonable ground to believe that a crime
has been committed
That the accused probably guilty thereof
That the accused was informed of the complaint and of
the evidence submitted against him , and
That he was given an opportunity to submit
controverting evidence
 Absence of a certification in the information
as to the holding of preliminary investigation
does NOT affect the validity of the information
for the reason that such certification is not an
essential part of the information itself and its
absence cannot vitiate it as such.

*What is not allowed is the filling of information without

a preliminary investigation having been previously
conducted
Within 5 days from his resolution, the
Investigating prosecutor shall forward the
record to the Provincial or City Prosecutor
or Chief state prosecutor or to the
Ombudsman or his deputies (in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original
jurisdiction)

They shall act on the resolution within 10

days from their receipt thereof and shall
immediately inform the parties of such
action
Rule when recommendation for
dismissal is disapproved
When the recommendation for dismissal of the
Investigating prosecutor is disapproved by the
Provincial or City prosecutor or Chief state
prosecutor or the Ombudsman or his Deputy on the
ground that a probable exists, the latter, may by
himself, file the information against the respondent,
or direct another assistant prosecutor or state
prosecutor to do so without conducting another
preliminary investigation.
 Motion for reconsideration
Aggrieved party may file a motion for
recommendation within 15 days from
receipt of the assailed resolution.
If the motion is denied, the aggrieved party
may appeal within 15 days from the denial
of the motion for recommendation.
Appeals to the Secretary of Justice
The action of Provincial or City prosecutor
or of the State prosecutor is not the final say
in the case.
The prosecutor’s ruling is reviewable by the
Secretary of Justice.
The Secretary of Justice has the power to
modify, reverse or affirm the prosecutor’s
determination.
 When warrant of arrest may
issue
If the judge 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. If the judge is satisfied
that there is no necessity for placing the
accused under custody, he may issue
summons instead of warrant of arrest.
 The RTC judge need NOT personally
examine the complaint and witnesses in the
determination of probable cause for the
issuance of the warrant of arrest. He is only
required to:
Personally evaluate the report and the supporting
documents submitted during the preliminary
investigation by the fiscal; and
On the basis thereof he may:
Dismiss;
Issue warrant; or
Require further affidavits.
Instances when warrant of arrest
is not necessary
If the accused is already under detention;
If the complaint or information was filed
after the accused was lawfully arrested
without warrant;
If the offense is punishable by fine only.
 Withdrawal of information
already filed in court
Once a criminal complaint or
information is filed in court, any disposition
of the case or dismissal or acquittal or
conviction of the accused rests within the
exclusive jurisdiction, competence and
discretion of the trial court
(Bar 1990,1991,2011,2012)
 Records
Records of the preliminary
investigation shall NOT automatically
form part of the records of the case.
Courts are not compelled to take
judicial notice thereof. It must be
introduced as an evidence.
Procedure to be followed in cases
which do not require Preliminary
Investigation
Evaluate the evidence presented

Conduct searching questions or answers

Require the submission of additional

evidence