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RULE 112 Preliminary Investigation
RULE 112 Preliminary Investigation
5. Determine whether there is probable cause to believe that an offense has been
committed and the accused is probably guilty of it
6. Doesn't place the accused in jeopardy
7. Doesn't affect the jurisdiction of the court—only the regularity of the proceedings
8. Accused cannot assert lack of preliminary investigation. Court cannot dismiss the case
based on this ground—it should conduct the investigation or order the fiscal or lower court to do
it
9. Preliminary investigation may be waived
10. Accused should invoke right to PI before plea, otherwise it is deemed waived
11. Accused doesn't have full gamut of rights yet. He doesn't have right to counsel unless
a confession is being obtained from him.
12. There is also no right to confront witnesses against him.
WHEN IS IT REQUIRED?
> Before a complaint or information is filed, preliminary investigation is
required for all offenses punishable by imprisonment of at least 4 years, 2 months and 1
day, regardless of the fine, except if the accused was arrested by virtue of a lawful arrest without
warrant
> In case of lawful arrest without warrant: the complaint or information may be filed
without a preliminary investigation unless the accused asks for a preliminary investigation
and waives his rights under Article 125 of the RPC
> Whether or not there is a need for PI depends upon the imposable penalty for the crime
charged in the complaint filed with the city or provincial prosecutor’s office and not upon
the imposable penalty for the crime fund to have been committed by the respondent after a
preliminary investigation
2. To protect the accused from the inconvenience, expense, and burden of defending
himself in a formal trial unless the reasonable probability of his guilt has been first
ascertained in a fairly summary proceeding by a competent officer
3. 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, expense and
anxiety of a public trial
4. To protect the state from having to conduct useless and expensive trials
> It is not a trial on the merits and has no purpose BUT to determine whether there is
probable cause to believe that an offense has been committed and that the accused is
probably
guilty of it
> While the right to a PI may be substantial, nevertheless it is not a constitutional right
> Its function is not to determine the guilt of the accused but merely to determine the existence of
probable cause
RIGHT TO PRELIMINARY
INVESTIGATION
RIGHT TO PRELIMINARY INVESTIGATION
WHEN SHOULD THE RIGHT TO PRELIMINARY
INVESTIGATION BE INVOKED?
> The accused should invoke it before plea, or else, it is deemed waived
CONDUCT OF PRELIMINARY
INVESTIGATIONS
CONDUCT OF PRELIMINARY INVESTIGATIONS
Sec. 2. Officers authorized to conduct preliminary investigations. – The following may conduct
preliminary investigations:
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
Their authority to conduct preliminary investigations shall include all crimes cognizable
by the proper court in their respective territorial jurisdictions.
PROCEDURE IN
CONDUCTING PRELIMINARY
INVESTIGATION
Procedure in Conducting Preliminary Investigation
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.
> The affidavits must be subscribed and sworn before the prosecutor or government
official
authorized to administer such or notary public
2. Within ten (10) days after the filing of the complaint, the investigating officer shall either:
3. 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. The respondent shall not be
allowed to file a motion to dismiss in lieu of a counter-affidavit.
4. 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. 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. 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. 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.
IS A PRELIMINARY
INVESTIGATION A JUDICIAL
PROCEEDING?
IS A PRELIMINARY INVESTIGATION A JUDICIAL
PROCEEDING?
> Yes it is a judicial proceeding where the prosecutor or investigating officer acts a
quasi-judicial officer
> Parties are given the opportunity to be heard and to produce evidence which shall be
weighed and upon which a decision shall be rendered
> Since it is a judicial proceeding, the requirement of due process in judicial proceedings is also
required in preliminary investigations
> Preliminary investigation is conducted for the purpose of determining if there is a probable
cause to hold a person for trial
PROBABLE CAUSE
WHAT IS PROBABLE CAUSE?
> Probable cause is the existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted
PRESENCE OF COUNSEL IN A
PRELIMINARY
INVESTIGATION
IS THE PRESENCE OF COUNSEL IN A
PRELIMINARY INVESTIGATION MANDATORY?
> No, preliminary investigation is a summary proceeding and is merely inquisitorial in
nature
> The accused cannot yet fully exercised his rights
> However, if a confession is to be obtained from respondent, an uncounselled confession
would be void
1. 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:
a. He, or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses;
b. That there is reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof;
c. That the accused was informed of the complaint and of the evidence submitted against him;
d. And that he was given an opportunity to submit controverting evidence.
2. If the investigating officer finds no probable cause, he
shall recommend the dismissal of the complaint
3. 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.
6. 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
reliminary investigation, or to dismiss or move for dismissal of the
complaint or information with notice to the parties.
NO PRELIMINARY
INVESTIGATION
CONDUCTED, REMEDIES
NO PRELIMINARY INVESTIGATION
CONDUCTED, REMEDIES
IF THERE WAS NO PRELIMINARY INVESTIGATION
CONDUCTED, WHAT IS THE REMEDY OF THE ACCUSED?
*Code: RICA P
> Thus, even if the accused already entered a plea to an information filed alone by the
Regional State prosecutor, the court may still dismiss the same on the ground that it
didn't acquire jurisdiction over the case since it was filed by one who is not authorized
APPEAL OF INFORMATION
TO THE SECRETARY OF
JUSTICE
WHY SHOULD THE SECRETARY OF JUSTICE DO IF AN
INFORMATION ALREADY FILED IN COURT IS APPEALED
TO HIM?
> He should as far as practicable, refrain from entertaining the appeal
> The matter should be left to the determination of the court
IS THE DETERMINATION OF
PROBABLE CAUSE A
JUDICIAL OR EXECUTIVE
FUNCTION?
IS THE DETERMINATION OF PROBABLE CAUSE
A JUDICIAL OR EXECUTIVE FUNCTION?
> It depends
> Executive function: purpose of determining whether there is reasonable ground to believe
that the accused has committed the offense and should be held for trial
RESOLUTION OF
INVESTIGATING JUDGE AND
ITS REVIEW
Resolution Of Investigating Judge And Its Review
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.
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.
(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.
> Whether the function of determining probable cause has been correctly discharged by the
prosecutor is a matter that the trial court itself doesn't and may not pass upon
WHAT IS A PRELIMINARY
EXAMINATION? WHAT IS ITS
PURPOSE?
Preliminary Examination
What Is Preliminary Examination
A preliminary examination is a proceeding for the purpose of determining probable cause
for the issuance of a warrant of arrest
REMEDIES OF A PARTY
AGAINST WHOM A WARRANT
OF ARREST HAS BEEN ISSUED
REMEDIES OF A PARTY AGAINST WHOM A
WARRANT OF ARREST HAS BEEN ISSUED
> A party against whom a warrant of arrest has been issued may
1. Post bail
2. Ask for reinvestigation
3. File a motion to quash information
4. File a petition for review
5. If denied, he may appeal the judgment after trial (no certiorari)
*Code: PAMPI