CRIMINAL PROCEDURE

(Rules 110-127 of the Rules of Court)

RULE 112 - PRELIMINARY INVESTIGATION

Section 1. Preliminary investigation defined; when required. – Preliminary investigation
is an inquiry or proceeding 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.

Except as provided in Section 7 of this Rule, a preliminary investigation is required to

be conducted before the filing of a compliant or information for an offense where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1) day
without regard to the fine.

Preliminary investigation is an inquiry or proceeding to determine whether there exists sufficient ground
to engender a well-founded belief that a crime cognizable by the RTC has been committed and that the
respondent is probably guilty thereof, and should be held for trial. (Sec. 1, Rule 112)

*** The present rule includes among offenses entitled to preliminary investigation those punishable by at
least four (4) years, two (2) months and one (1) day, even if the same is cognizable by the MTC.

*** The right to preliminary investigation is a personal right covered by statute and may be waived.

Preliminary investigation is:

1) not part of the trial of the criminal action in court. Nor is its record part of the record of the
case in the RTC.

2) subject to the requirements of both substantive and procedural due process.

*** The right of an accused to a preliminary investigation is not a constitutional but
merely a statutory right. Nonetheless, it is a component part of due process in
criminal justice and is a substantive right.

3) a personal right and may be waived expressly or by implication.

*** Lack of PI is not a ground to quash or dismiss a complaint or information, nor does it
affect the court’s jurisdiction. When there is no preliminary investigation, the
accused must invoke it at the first opportunity and the court should hold in abeyance
or suspend proceedings and remand the case to the office of the prosecutor for him
to conduct PI.

*** Though preliminary investigation is not a constitutional right but only a statutory right, denial of the
accused of that right, as required by law, will constitute denial of criminal due process. (Patanao vs. Enage
121 SCRA 228)

*** The right to preliminary investigation is not a constitutional right but only statutory right so that when
the law or rules does not provide for it, it cannot be invoked as a matter of right.

THE FOLLOWING CASES DO NOT REQUIRE PI:

a) Instances where there is a warrantless arrest, in flagrante delicto provided an inquest

proceedings was conducted (Sec. 7 Rule 112);

b) Cases falling under the rules of summary procedure;

c) Offenses involving penalty of not more than 4 years, 2 months 1 day

*** Failure to object on the ground that there has been no preliminary investigation will be deemed to be
a waiver of the accused’s right thereto and such objection cannot be raised for the first time on appeal.
*** During preliminary investigation, searching questions and answers are ASKED.

REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION:

1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground
2 Insist on a preliminary investigation
3. File a certiorari, if refused
4. Raise lack of preliminary investigation as error on appeal
5. File for prohibition

*** The refusal of the court to remand the case for PI can be controlled by certiorari and prohibition to
prevent trial.

PURPOSE OF PRELIMINARY INVESTIGATION:

To protect the accused from the inconvenience, expenses and burden of defending himself in a formal
trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary
proceeding by a competent officer. It is also intended to protect the state from having to conduct useless
and expensive trials.

Sec. 2. Officers authorized to conduct preliminary investigations. – The following may

conduct preliminary investigations:chanroblesvirtuallawlibrary

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes

cognizable by the proper court in their respective territorial jurisdictions.chanrobles
virtualawlibrary

Sec. 3. Procedure.– The preliminary investigation shall be conducted in the following

manner:

(a) The complaint shall state the address of the respondent and shall be accompanied
by the affidavits of the complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The 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
whom must certify that he personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss it if he finds no ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the complaint and its supporting
affidavits and documents.

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.

(c) 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 and certified as provided in
paragraph (a) of this section, with copies thereof furnished by him to the complainant.
The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-
affidavit.

(d) 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.

(e) 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.

(f) 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.

Sec. 4. Resolution of investigating prosecutor and its review. – If the investigating

prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution
and information. He shall certify under oath in the information that he, or as shown by
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
and that the accused is 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. Otherwise, he shall recommend the
dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10) 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 prosecutor

without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but
his recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause
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.

If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu propio, the Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without conducting anther
preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman.

Sec. 5. Resolution of investigating judge and its review.

– Within ten (10) days after the preliminary investigation, the investigating judge shall
transmit the resolution of the case to the provincial or city prosecutor, or to the
Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction, for appropriate action. The resolution shall state the
findings of facts and the law supporting his action, together with the record of the case
which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the
affidavits, counter-affidavits and other supporting evidence of the parties; (c) the
undertaking or bail of the accused and the order for his release; (d) the transcripts of
the proceedings during the preliminary investigation; and (e) the order of cancellation
of his bail bond, if the resolution is for the dismissal of the complaint.

Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or
the Ombudsman or his deputy, as the case may be, shall review the resolution of the
investigating judge on the existence of probable cause. Their ruling shall expressly and
clearly state the facts and the law on which it is based and the parties shall be furnished
with copies thereof. They shall order the release of an accused who is detained if no
probable cause is found against him.

Non-judicial function:

*** When a municipal judge conducts PI, he performs a non-judicial function. Consequently,
the findings of the investigating judge are subject to review by the provincial prosecutor whose
findings in turn may also be reviewed by the Secretary of Justice in appropriate cases.

*** The municipal judge conducting preliminary investigation has no authority to determine the
character of the crime but only to determine whether or not the evidence presented supported prima facie
the allegation of fact contained in the complaint.

Distinction regarding procedure:

INVESTIGATING FISCAL INVESTIGATING JUDGE
- forward resolution within 5 days thereof - transmit resolution within 10 days after
P.I.
- resolution requires the certification of fiscal - there is no need for certification of judge
but must state briefly the findings of facts
and the law supporting his action
- fiscal shall forward all the records of the case - judge shall transmit with the entire
records of the case, includes, the warrant
of arrest and affidavits and supporting
evidence, undertaking or bail, order of
release and cancellation of bail bond, if for
the dismissal of the complaint
- Action of Chief of State Prosecutor within 10 - Action of Chief of State Prosecutor within
days from receipt of resolution 30 days from receipt of the records
- Fiscal’s acts are primarily an executive act, - Judge acts as an agent of the executive
subject to supervision of Chief State Pros. and not of one as member of the judiciary,
and the finding of Chief State Pros. Will still
prevail because PI is an executive function.

Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within
ten (10) days from the filing of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the complaint
or information was filed pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by the court
within thirty (30) days from the filing of the complaint of information. chan robles virtual
law library
 (b) By the Municipal Trial Court. – When required pursuant to the second paragraph of
section of this Rule, the preliminary investigation of cases falling under the original
jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial
Court, or Municipal Circuit Trial Court may be conducted by either the judge or the
prosecutor. When conducted by the prosecutor, the procedure for the issuance of a
warrant of arrest by the judge shall be governed by paragraph (a) of this section. When
the investigation is conducted by the judge himself, he shall follow the procedure
provided in section 3 of this Rule. If his findings and recommendations are affirmed by
the provincial or city prosecutor, or by the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue a warrant of arrest. However, without
waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if
he finds after an examination in writing and under oath of the complainant and his
witnesses in the form of searching questions and answers, that a probable cause exists
and that there is a necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice.

(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the
accused is already under detention pursuant to a warrant issued by the municipal trial
court in accordance with paragraph (b) of this section, or if the complaint or information
was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only.
The court shall them proceed in the exercise of its original jurisdiction.

Sec. 7. When accused lawfully arrested without warrant. – 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 officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver of the
provision of Article 125 of the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and the investigation must
be terminated within fifteen (15) days from its inception.

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.

ISSUANCE OF COURT OF WARRANT OF ARREST

1) Issuance By RTC/MTC on cases which does not require Prelim. Invest., Warrant may
be issued:
a) Upon filing of information by fiscal within 10 days if there is probable cause or
b) Upon filing of additional evidence instituting probable cause if doubtful, which must be
within 30 days from filing of information.

Exceptions: No WOA or instead of WOA, order of commitment:

1. Accused already arrested by virtue of WOA of MTC;
2. Warrantless arrest after an inquest for an offense cognizable by RTC;
3. Offense with a penalty of fine only (6 (c), R112)

2) Issuance By MTC – Cases which requires Prelim. Invest., Warrant may be issued:

IF CONDUCTED BY THE FISCAL

1) Upon filing of information by fiscal within 10 days if there is probable cause by the court
having jurisdiction over the case or

2) Upon filing of additional evidence justifying probable cause if doubtful, which must be within
30 days from filing of information.
3) During PI upon application by fiscal, after searching questions and answers in writing under
oath + probable cause + necessity to place in immediate custody so as not to frustrate the
end of justice; (Ortiz vs. Palaypayon 234 SCRA 391)

IF CONDUCTED BY MTC JUDGE:

1) During PI, after searching questions and answers in writing under oath + probable cause +
necessity to place in immediate custody so as not to frustrate the end of justice (Ortiz vs.
Palaypayon 234 SCRA 391)

2) Upon approval of resolution of investigating MTC judge by Chief State prosecutor and filing
of information;
Exceptions:
a. No necessity of issuing WOA, but he must issue summons;
b. Cases in Summary procedure except for failure to appear;

PROBABLE CAUSE: Sufficient facts must be presented to the judge or magistrate issuing the warrant
to convince him that there is probable cause for believing that the person whose arrest is sought
committed the crime charged. It is not required to prove that the particular person has actually committed
the crime.

Effect of a finding of probable cause:

- merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

 TWO SITUATIONS CONTEMPLATED UNDER SECTION 7:

1. When a person is lawfully arrested without a warrant for an offense requiring a preliminary
investigation (sec. 1, Rule 112) and no complaint or information has yet been filed, he may ask
for a preliminary investigation by signing a waiver of the provisions of Art. 125 of the RPC in the
presence of his counsel.

2. When the complaint or information was filed without preliminary investigation, the accused
may, within 5 days from the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the manner prescribed in this
Rule.

 GENERAL RULE: No complaint or information shall be filed for an offense which is

penalized by imprisonment of not less than 4 years, 2 months and 1 day without PI.

 EXCEPTION: when the accused has been lawfully arrested without warrant, in which
case, an inquest must be conducted by an inquest prosecutor who will determine
whether his arrest without warrant is lawful. The inquest prosecutor may order the
release of the arrested person if he finds no sufficient ground to hold him without
prejudice to conducting further investigation, or file complaint or information within the
period specified in Art. 125 of the RPC.
*** The request for preliminary investigation should be made before plea, otherwise the right to
ask for a preliminary investigation shall be deemed WAIVED.

Sec. 8. Records. – (a) Records supporting the information or complaint. – An

information or complaint filed in court shall be supported by the affidavits and counter-
affidavits of the parties and their witnesses, together with the other supporting
evidence and the resolution on the case.

(b) Record of preliminary investigation. – The record of the preliminary investigation,

whether conducted by a judge or a prosecutor, shall not form part of the record of the
case. However, the court, on its own initiative or on motion of any party, may order the
production of the record or any of its part when necessary in the resolution of the case
or any incident therein, or when it is to be introduced as an evidence in the case by the
requesting party.

Sec. 9. Cases not requiring a preliminary investigation nor covered by the Rule on
Summary Procedure. – (a) If filed with the prosecutor. – If the complaint is filed directly
with the prosecutor involving an offense punishable by imprisonment of less than 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) If filed with the Municipal Trial Court. – If the complaint or information is filed 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 questions 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 that there is no necessity for placing the accused
under custody, he may issue summons instead of a warrant of arrest.