JD 106: CRIMINAL PROCEDURE

RULE 112:
PRELIMINARY INVESTIGATION

| Joseph Kennedy O. Cantabaco |

PRELIMINARY INVESTIGATION (P.I.)
• 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.
(Section 1, Rule 112)
Q. When is a preliminary investigation
required?
Required Not Required
-where the penalty -below 4 years, 2 months, 1
prescribed by law for the day
offense is at least 4 years,
2 months, and 1 day

-homicide -slight physical injury

-reclusion temporal -arresto menor
Q. . Differentiate the two kinds of
complaint.
Complaint Filed before Complaint filed in court
the investigating officer
-refers to the complain -refers to the one
that initiates a which commences the
preliminary judicial proceedings
investigation against the accused.
Sec. 1. PRELIMINARY INVESTIGATION (P.I.)
defined; when required.
(1) P.I. (IS-CPT)
- Inquiry or proceeding
- Sufficient ground
- Crime
- probably guilty
- Trial

(2) 4 y- 2 m- & 1 d
Sec. 2: Officers authorized to conduct
preliminary investigation
(a) Provincial and City (c) other officers as may be
Prosecutors & their authorized by law
assistants
(b) National & Regional
State Prosecutors

Ombudsman COMELEC PCGG

Sec. 3: Procedure- The P.I. shall be conducted
in the following manner: From Atty. Macaldo

CRIME

Arrested UNARRESTED

P.I.
Inquest
+Probable Cause - Probable Cause
Invalid Arrest Valid Arrest FILE INFO dismiss

RELEASED Warrant of Arrest/

Commitment Order/
Summon
 Q. Once the criminal information is filed, can
the prosecutor withdraw the information?

-The disposition of the case now rests within the

exclusive jurisdiction and discretion of the said court.
Any motion to dismiss information will now be solely
be addressed to judicial discretion and
determination.
Sec. 3: Procedure- The P.I. shall be conducted
in the following manner: From Atty. Macaldo

COMPLAINT

+ Evidence
Dismiss if (BC, CM, MC) Subpoena
no ground
serve Not served

counter-affidavit

RESOLUTION

FILE INFO dismiss

Sec. 3: Procedure- The P.I. shall be conducted
in the following manner:
A. COMPLAINT

B. (10 days) Dismiss or Subpoena RESPONDENT

C. (10 days) Counter-affidavit)

D. No C.A. w/in 10 Days after subpoena, RESOLVE COMPLAINT

E. Hearing (Optional) terminate w/in 5 days

F. W/in 10 days, Sufficient Ground to hold respondent for trial

Sec. 4: Resolution of Investigating prosecutor
and its review:
1. Resolution 2. Chief Prosecutor 3. Remedies

Prosecutor 1. Petition of
shall forward Review to
his resolution Approved disapproved SOJ/ Office of
within 5 days President
from his 2. File for
NB: No Chief prosecutor suspension of
fulfillment of
Information MAY by himself
resolution to arraignment
may be filed prepare a different
Chief without the
(not exceeding
Prosecutor resolution. 60 days)
approval of
City or
Provincial He may also file
Prosecutor or the information in
Chief court upon
Prosecutor. different
(Rule 112. Sec resolution.
4.)
Sec. 5: When a warrant of arrest may issue:
Filing of Information to Court
If Judge is satisfied that
Judge Finds Judge finds
there is no necessity for
no probable probable cause placing the accused
cause under custody

ISSUE
DISMISS ISSUE
WARRANT
THE CASE SUMMONS
OF ARREST
instead of a
warrant of
arrest

BY THE JUDGE (RTC/MTC)

Q. When is preliminary investigation NOT
required even if the offense is one which
normally requires a preliminary investigation?
BAR 2013
Sec. 6: When accused lawfully arrested
without warrant
CRIME Inquest proceedings will be conducted by
prosecutor. If there is no inquest
prosecutor, complaint may be filed directly
Arrested in court.

• The accused may ask for PI but he

Inquest must execute a waiver of Article 125,
RPC, in the presence of his counsel
The arrested person has the right to
Invalid Arrest Valid Arrest apply for bail
• After the filing of Information, within
RELEASED P.I. five (5) days from the knowledge
thereof, accused my ask for PI
Q. What if the INQUEST PROSECUTOR is
UNAVAILABLE? (Bar 2011, 2012)
In case of a lawful and warrantless arrest and the inquest prosecutor is not available.

Crime
|
Arrested
|
I Direct filing of complaint directly with
the proper court by the offended party or
a peace officer
on the basis of the affidavit (Sec. 6. Rule 112)
/ \
Without valid arrest With valid arrest
|
Released from Custody
Sec. 7: Records.
(a) Records supporting the Record of the Preliminary
information or complaint. Investigation
An information or complaint filed in
court shall be supported by the GR: Record of the preliminary
following: investigation shall not form part of the
case.
1. Affidavits and counter-affidavits of
the parties and their witnesses; and XPns
1. When the court considers it
2. Other supporting evidence and the necessary in the resolution of the
resolution on the case. (Sec. 7(a), case or any incident therein; or
Rule 112, ROC, as amended) 2. When it is introduced as evidence
in the case
Sec. 8: Cases not Requiring a preliminary
Investigation nor covered by the Rule on
Summary Procedure.

Filed with the Prosecutor Filed with the MTC

 EXECUTIVE vs. JUDICIAL DETERMINATION
OF PROBABLE CAUSE
1. The executive determination of probable cause is one made
during preliminary investigation. It is a function that
properly 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. The judicial determination of probable cause is one made
by the judge to ascertain whether a warrant of arrest should
be issued against the accused. The judge must satisfy himself
that based on the evidence submitted, there is necessity for
placing the accused under custody in order not to frustrate
the ends of justice.
Important Points from our beloved Riano…
Is the technical rules of evidence
applicable in preliminary investigation?
• No.
The admissibility of evidence, their evidentiary weight, probative
value, and credibility of the witnesses are matters best left to be
resolved in a full-blown trial, not during a preliminary
investigation where the technical rules of evidence are not
applied nor at the stage of the determination of probable
cause for the issuance of warrant arrest. ( De lima v. Guerrero,
2017)
Is preliminary investigation a
constitutional right?
• No.
The holding of a preliminary investigation is not required by the
Constitution.
The right thereto is of a statutory character and may be invoked
only when specifically created by a statute. ( Marinas v. Siochi).

But while is right is statutory rather than constitutional,

since it has been established by statute,
it becomes a component of due process in criminal justice
(Duterte v. Sandiganbayan)
Is the right to preliminary investigation
waivable?
• Yes.

The right to 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, 78).
Is denial of the accused to preliminary
investigation deprivation of his right to due
process? (Bar 2011)
• Yes.
When so granted by the statute, the right is not a mere formal or
technical right. It is a substantive right. To deny the claim of
the accused to a preliminary investigation would be deprive him
the full measure of his right to due process (Duterte v.
Sandiganbayan, 289 SCRA 721, 738).
Remedy?
Where the denial is tainted with grave abuse of discretion
amounting to lack of jusrisdiction, a ground for a petition
for certiorari and mandamus arises.
Is a person lawfully arrested may ask for
a preliminary investigation?
• 1. Under Sec. 6, of Rule 112, although an inquest is the proceeding which shall
apply when a person is lawfully arrested without warrant, such person may,
nevertheless, ask for preliminary investigation in accordance with Rule
112, BEFORE the complaint or information is filed. However, he must sign a
waiver of the provisions of Art. 125 of the Revised Penal Code,a s ameded, in the
Presents of his counsel. The preliminary investigation must be terminated within
15 days fromits inception (Sec. 6, Rule 112, ROC)
Note: Waiver of the provisions of Art. 125:Delay in the delivery of detained
persons in the proper judicial authorities.
12 hrs- light penalties
18 hrs- correccional penalties
36 hrs-afflictive or capital penalties
RA 7438- SHALL be writing & in the presence of counsel

Exception:
2. The filing
Are the courts precluded from reviewing
findings of prosecutors? Is there exception?
• General Rule:
1. As a rule, Court of law are precluded from distrubing the findings of
public prosecutors on the existence or non-existence of probable cause.
The rationale behind this rule rests on the principle of separation of
powers, the determination of probable cause being an executive function.
Exception:
2." It is well-settled that the findings of the Secretary of Justice are not
subject to interference by the courts, save only when he acts with garve
abuse of discretion amounting to lack or excess of jurisdiction;
when he grossly misapprehends the facts;
when he acts in the manner so patent and gross as to amount an evasion
of positive duty or a virtual refusal to perform the duty enjoined by law;
or when he acts outside the contemplation of law.
Is the person lawfully arrested allowed to
apply for bail?x
• Yes
The waiver of the provisions of Art. 125 of the Revised Penal Code by
the person lawfully arrested without a warrant DOES NOT preclude him
from applying for bail ( Sec. 6, Rule 112, ROC).
When can an accused question the regularity
or absence of preliminary investigation?
• An accused who wants to question the regularity or absences of a
preliminary investigation must do so before he enters his plea. The
court shall resolve the matter as early as practicable but not later
than the start of the trial. An application for or admission of the
accused to bail DOES NOT bar him from raising such questions. (Sec.
26, Rule 114, ROC).
What does it imply when the accused fail to invoke
right to question absence or regularity of PI?
• Failure to invoke the right before entering plea will amount to waiver
(People v. Gomez)
• While the right to preliminary investigation is a substantive right and
not a mere for or technical right of the accused, the right is deemed
waived when the accused fails to invoke it before or at the time of
entering his plea at arraignment ( People v. Baluran).
What is the effect of absence of preliminary
investigation on the jurisdiction of the court?
• The absence of preliminary investigation DOES NOT AFFECT the
court’s jurisdiction over thecase nor doe sit impair the validity of the
information or otherwise, renders it defective (Enriquez v. Sarmiento)
Is the absence of preliminary investigation a
GROUND for MOTION to quash?
• No
• The absence of a preliminary investigation is not a ground for the
quashal of a complaint or information (Socrates v. Sandiganbayan).
• Such ground is not provided for in Sec. 3 of Rule 117, the provision
which enumerates the grounds for a motion to quash complaint or
information.
Is the withdrawal of the information already filed
in court by the prosecutor upon instructions of
SOJ to whom the case was elevated for review
allowed? BAR 1990, 1991, 2011, 2012)
• Grappling with the issue, the COURT unequivocally held that the rule
in this jurisdiction is that, 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 (Crespo v. Mogul).
Is petition for certiorari the proper remedy for the
dismissal of a case for lack of probable cause?
• No,
• The order of the court, dismissing a case for lack of probable cause, is
a final order since it disposes of the case, terminates the
proceedings, and leaves the court with nothing further to do with
respect to the case (Cajipe v. People, 2014)
• In Cajipe, the Court did not consider certiorari, as the proper
remedy, but appeal, if the trial court dismisses a criminal complaint or
information for lack of probable cause.
Is the court mandated to personally examine
the complainant and his where a PI has been
previously conducted? (BAR 2015)

• No,
• Note that under Sec. 5 of Rule 112, ROC, the court, where a PI has
previously been conducted, does not have the duty to personally examine
the complainant and his witnesses in writing and under oath in the form of
searching questions and answers. This type of examination of the
complainant and his witnesses applies, as an option of the court, only in
the case where there is direct filing of the complaint or information with
MTC since no previous preliminary investigation has been conducted.
If the accused files for a motion to quash the
information before the court has issued a warrant
of arrest, should the court first resolve the motion
to quash before issuing a warrant?
• The Court, ruling on the action at the trial court, declared that a judge
has no positive duty to first resolve the motion to quash information
before issuing a warrant of arrest.
• There is no rule of procedure, statute, or jurisprudence to support
claim of the accused that before issuing the warrant, the motion to
quash must be resolved first.
• It is the task of the judge first and foremost determine the existence
or non-existence of probable cause for the arrest of the accused
within a limited period of 10 days ( De lima v. Guerrero, 2017).
BAR Q’s
Q1: The Office of the City Prosecutor issued a Resolution finding
probable cause against the petitioner for the violation of R.A. No.
7610. Later on, an Information was filed before the RTC charging
the petitioner of the said crime. The Resolution was penned by an
Assistant City Prosecutor and approved by a Senior Assistant City
Prosecutor. The Information was penned by ACP De La Cruz but
without approval from any higher authority. However, there was a
Certification claiming that ACP De La Cruz has prior written
authority or approval from the City Prosecutor in filing the said
Information. The petitioner moved for the quashal of the
Information against her on the ground of lack of authority of the
person who filed the same before the RTC. The RTC denied the
motion to quash for lack of merit. Is the RTC correct in denying the
motion to quash for lack of merit?
 Q1-A. Criminal Procedure states that the filing of a complaint or
information requires a prior written authority or approval of the named
officers therein before a complaint or information may be filed before
the courts.
As a general rule, complaints or informations filed before the
courts without the prior written authority or approval of the foregoing
authorized officers render the same defective and, therefore, subject to
quashal pursuant to Sec. 3(d), Rule 117 of the same Rules.
Thus, the Resolution finding probable cause to indict the
petitioner of the crime charged, was validly made as it bore the approval
of one of the designated review prosecutors for OCP-Makati, SACP
Hirang, as evidenced by his signature therein. However, the same could
not be said of the Information filed before the RTC, as there was no
showing that it was approved by either the City Prosecutor of Makati or
any of the OCP-Makati’s division chiefs or review prosecutors. (Quisay v.
People, G.R. No. 216920, 13 Jan. 2016)
Q2:Q: Does the SC and CA have the power to review the findings of prosecutors
in preliminary investigation?
Q2: A:
YES.
The SC and CA have the power to review the findings of
prosecutors in preliminary investigations. Courts should never
shirk from exercising their power, when the circumstances
warrant, to determine whether the prosecutor’s findings are
supported by the facts, or by the law.

I n so doing, courts do not act as prosecutors but as

organs of the judiciary, exercising their mandate under the
Constitution, relevant statutes, and remedial rules to settle
cases and controversies. The exercise of this Court’s review
power ensures that, on the one hand, probable criminals are
prosecuted, and, on the other hand, the innocent are spared
from baseless prosecution. (Social Security System v. DOJ, 2007)
Q3: Leo was arrested without a warrant following the issuance by PGMA
of P.D. 1017. On the eve of his arrest, Leo was subjected to an inquest at
the Quezon City Hall of Justice for Inciting to Sedition (Art. 142, RPC)
based on a speech he allegedly gave during a rally. The inquest was
based on a joint affidavit of Leo’s arresting officers who claimed to have
been present at the rally. The inquest prosecutor filed the corresponding
Information with the MeTC. Several days after the first inquest, he was
again subjected to a second inquest but this time for rebellion allegedly
committed based on the letters of CIDG investigators claiming that Leo
was the leader/promoter of an alleged plot to overthrow the Arroyo
government. The panel of prosecutors from the DOJ which conducted the
second inquest subsequently issued a resolution finding probable cause
to indict Leo as leader/promoter of alleged rebellion. The panel filed an
Information with the RTC of Makati. The court sustained the finding of
probable cause against Leo. Leo filed a Petition to set aside the orders
finding probable cause and the denial of the MR to enjoin his
prosecution. Was the second inquest valid?
Q3-A:

A: NO.
Inquest proceedings are proper only when the accused has been
lawfully arrested without warrant. Sec. 5, Rule 113 of the Revised Rules of
Criminal Procedure provides the instances when such warrantless arrest
may be effected.
The joint affidavit of Leo’s arresting officers states that the officers
arrested Leo, without a warrant, for Inciting to sedition, and not for
rebellion. Thus, the inquest prosecutor could only have conducted – as
he did conduct – an inquest for Inciting to Sedition and no other.

Consequently, when another group of prosecutors subjected Leo

to a second inquest proceeding for rebellion, they overstepped their
authority rendering the second inquest void. (Beltran v. People, G.R. No.
175013, 01 June 2007)
Thank You.