RULE 112 –
PRELIMINARY
INVESTIGATION
Taker Answer
Preliminary investigation is an inquiry or proceeding to determine
Q-1: What is
whether there is sufficient ground to engender a well-founded
Preliminary Maricon
belief that a crime has been committed and the respondent is
Investigation (PI)?
probably guilty thereof, and should be held for trial.
In the conduct of preliminary investigation, the prosecutor does
Q-2: What quantum of not decide whether there is evidence beyond reasonable doubt of
evidence required for the guilt of the accused. He merely determines the existence of
purposes of PI? probable cause, and to file the information if he finds it to be so
(De Chavez v. Office of the Ombudsman, 514 SCRA 638, 651-652).
In determining probable cause, the average man weighs the facts
and circumstances without resorting to calibrations of the rules of
evidence of which he has no technical knowledge. He relies on
common sense. What is determined is whether there is sufficient
ground to engender a well-founded belief that a crime has been
committed, and that the accused is probably guilty thereof and
should be held for trial. It does not require an inquiry as to
whether there is sufficient evidence to secure a conviction. If it is
made in a preliminary investigation for the purpose of determining
whether there is reasonable ground to believe that the accused
has committed the offense and should be held for trial, it is an
executive function. If it is made for the issuance of a warrant of
Q-3: How to arrest by a judge, it is a judicial function. (Preliminary Examination)
determine probable Maricon
cause?
The term probable cause does not mean “actual and positive
cause” nor does it import absolute certainty. It based on opinion
and reasonable belief. It is enough that it is believed that the act or
commission complained of constitutes the offense charged.
- Does not require clear and convincing proof of evidence
- Only implies probability of guilt and requires more than
bare suspicion but less than evidence to justify a
conviction.
1. To inquire concerning the commission of a crime and the
connection of the accused with it, in order that he may be
informed of the nature and the character of the crime
charged against him, and if there’s probable cause for
believing him guilty, that the State shall take the necessary
steps to bring him to trial;
Q-4: What is the 2. To preserve the evidence and keep the witnesses within
purpose of PI? the control of the State;
3. To determine the amount of bail if the offense is bailable
(Callo-Claridad v. Esteban, 694 SCRA 185, 198-199, March
30, 2013).
4. Designed to free a respondent from the inconvenience,
expense, ignominy and stress of defending himself in the
Erika course of a formal trial… (Ledesma v CA)
It doesn't place the accused in double jeopardy because it is not a
part of the trial. Nor is its record part of the record of the case in
Q-5: Is double
the RTC. The dismissal of the case by the investigation will not
jeopardy applicable in Maricon
constitute double jeopardy and will not bar the filing of another
PI?
complaint for the same offense, but if re-filed, the accused is
entitled to another preliminary investigation.
1. The conduct of Preliminary Investigation is a function that
belongs to the Public Prosecutor.
2. The determination of Probable Cause, is under our
criminal justice system, an executive function that the
courts cannot interfere with in the absence of grave abuse
of discretion. Such function is lodged, at the first instance,
with the public prosecutor who conducted preliminary
investigation and, ultimately, with the Secretary of Justice
and courts, as a rule, cannot reverse the findings of
Q-6:What are the probable cause of the Secretary of Justice, except in clear
natures of Preliminary cases of grave abuse of discretion.
investigation? 3. It is not a casual affair. It is conducted to protect the
innocent from the embarrassment, expense and anxiety of
a public trial. It is an opportunity to be heard and an
opportunity for the presentation of the respondent’s side
with regard to accusation.
4. It is a mere inquiry or a proceeding. It is not a trial. It does
not involve an examination of witnesses by way of direct
cross-examination.
Purpose: (not to declare the accused guilty beyond
reasonable doubt)
1. Whether the crime has been committed
2. Whether or not the respondent is “probably guilty” of
the crime.
5. The prosecutor merely determines the existence of
probable cause, and to file the information if he finds it to
be so.
6. It’s not the occasion for the full and exhaustive display of
the parties’ evidence.
It is not a constitutional right.
The right thereto is statutory. It may only be invoked when
specifically created by a statute. It becomes a component of due
Q-7: What is the
process in criminal justice.
nature of PI: a right?
It is also a substantive right. To deny the claim of the accused to a
preliminary investigation would be to deprive him the full measure
of his right to due process (Duterte vs Sandiganbayan).
Section 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 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
Q-8: What is the complaint or information is filed directly with the
Municipal Trial Court or Municipal Circuit Trial Court for
coverage for PI? 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 that there is no
necessity for placing the accused under custody, he may
issue summons instead of a warrant of arrest. (9a)
Section 2. Officers authorized to conduct preliminary
investigations. —
The following may conduct preliminary investigations:
(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
Q-9: Who are the
officers authorized to (d) Other officers as may be authorized by law. (please
conduct PI? read Riano)
Their authority to conduct preliminary investigations shall include
all crimes cognizable by the proper court in their respective
territorial jurisdictions. (2a)
Note: Before the amendments, judges of the MTC and MCTC were
allowed to conduct PI. But pursuant to amendment made by the
court on August 30, 2005 in AM 05-26-SC which took effect on
October 3, 2005, Judges of the first level courts are no longer
Ella allowed to conduct PI. The same rule applies to RTC Judges.
It is the filing of the complaint with the investigating
Q-10: When does PI officer/prosecutor that starts the preliminary investigation
commence? process. In actual application, the complaint is normally initiated
Ella through an affidavit of complaint.
Q-11: What are the The complaint shall state the address of the respondent
and shall be accompanied by the affidavits of the
contents of a complainant and his witnesses, as well as other
complaint for supporting documents to establish probable cause. They
purposes of PI, How shall be in such number of copies as there are
many copies should respondents, plus two (2) copies for the official file. The
be prepared, its affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to
accompanying administer oath, or, in their absence or unavailability,
documents? Khriar 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.
Accompanying documents:
1. Affidavits of the complainant
2. Affidavits of his witnesses
3. Other supporting documents
(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
Q-12: After having subpoena to the respondent attaching to it a copy of the
obtained a complaint complaint and its supporting affidavits and documents.
and its accompanying
documents, what The prosecutor, official or notary public before whom the
could be the steps an affidavits were subscribed and sworn to does not perform a mere
Investigating Officer mechanical duty.
might perform? He is obligated by the Rules of Court to conduct a personal
When? examination of the affiants and corollarily, to certify that he
personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
Section 6. Service. — Service of a subpoena shall be made in
the same manner as personal or substituted service of
summons. The original shall be exhibited and a copy thereof
delivered to the person on whom it is served, tendering to him
the fees for one day's attendance and the kilometrage allowed
by these Rules, except that, when a subpoena is issued by or on
Q-13: In what manner behalf of the Republic of the Philippines or an officer or agency
should subpoenas be thereof, the tender need not be made. The service must be
served? made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the
subpoena is duces tecum, the reasonable cost of producing the
books, documents or things demanded shall also be tendered.
(6a, R23)
Q-14: After having
(c) Within ten (10) days from receipt of the subpoena
receipt of subpoena, with the complaint and supporting affidavits and
what are the options documents, the respondent shall submit his counter-
left to the affidavit and that of his witnesses and other supporting
respondent? When? 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.
Yes, since the Rules of Court are to be liberally contrued, the
respondent should be allowed through a proper motion to have
Q-15: Is a motion for the proceedings reopened to allow him to submit his counter-
extension of time to affidavit and the affidavits of his witnesses and other evidence he
file Counter Affidavit may present.The motion, however, should be done before the
allowed? prosecutor has issued a resolution in the case. Further, such
motion should contain an exclamation for the failure to timely file
Princess the counter affidavit.
The respondent who receives the subpoena, complaint, affidavits
Q-16: Is a motion to
and other supporting documents, is not allowed to file a motion to
dismiss allowed to be
dismiss in lieu of counter-affidavit, he is required to submit his
filed in lieu of
counter-affidavit, the affidavit of his witnesses and the supporting
affidavit?
documents relied upon for his defense.
Q-17:What are the (d) If the respondent cannot be subpoenaed, or if
consequence if subpoenaed, does not submit counter-affidavits within
the ten (10) day period, the investigating officer shall
respondent could not resolve the complaint based on the evidence presented
be subpoenaed, or by the complainant.
does not submit his
counter affidavit?
A clarificatory hearing is not indispensable during PI. Under Section
3 of Rule 112, it is within the discretion of the investigation officer
whether to set the case for further hearings to clarify some
matters. Rather than being mandatory, it is optional on the part of
the investigating officer (Racho v Miro, 567 SCRA 213, 222).
Q-18: Is clarificatory
hearing mandatory?
What are the dos and If, after the filing of the requisite affidavits and their supporting
donts during evidences, there are facts material to the case which the
clarificatory hearing? investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or
cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the
clarificatory questioning may be conducted in writing, whereby the
questions desired to be asked by the investigating officer or a
party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing
and under oath. (Duterte vs Sandiganbayan)
No, preliminary investigation is a summary proceeding a
Q-19: Is right to nd is merely inquisitorial in nature
counsel observed > The accused cannot yet fully exercised his rights
during PI? > However, if a confession is to be obtained from respo
ndent, an uncounselled confession would be void
(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.
Section 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
Q-20: When is case record, an authorized officer, has personally examined the
deemed submitted for complainant and his witnesses; that there is reasonable ground to
Resolution? 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.
The hearing shall be held within ten (10) days from submission of
the counter-affidavits and other documents or from the expiration
Q-21: What is the of the period for their submission. It shall be terminated within
period to conduct PI? five (5) days.
The resolution of the investigating prosecutor shall be strictly
confidential and may not be released to the parties, their counsels,
Q-22: Explain the or any other unauthorized person until the same shall have been
confidentiality finally acted upon by the provincial, city, or chief state prosecutor
requirements for PI. or his duly authorized assistant and approved for promulgation
and release to the parties. Proceedings in preliminary
investigations shall be strictly confidential to protect the
reputation of the official involved and to encourage the
spontaneity conducive to effective communication.
ACTION OF THE CHIEF STATE/REGIONAL STATE/PROVINCIAL OR
CITY PROSECUTOR ON THE RECOMMENDATORY RESOLUTION
The Chief State/Regional State/Provincial or City Prosecutor
concerned shall act on all resolutions within a period of thirty (30)
days from receipt thereof, extendible for another thirty (30) days
in cases involving complex issues and/or heavy workload of the
head of office, by either:
xxxx
3. reversing the recommendation of the investigating prosecutor,
in which case, the Chief State/Regional State/Provincial or City
Prosecutor a. may file the corresponding Information in court
(except the Regional State Prosecutor); or
b. direct any other state prosecutor or assistant prosecutor, as the
Q-23: What could be case may be, to do so.
the possible courses In both instances, there is no more need for the head of office
of action of the concerned to conduct another preliminary investigation.
city/provincial/PROSG (Emphases supplied.)
EN on the
recommendatory Based on the foregoing, the guidelines for the documentation of a
resolution? resolution by an investigating prosecutor, who after conducting
preliminary investigation, finds no probable cause and
recommends a dismissal of the criminal complaint, can be summed
as follows:
(1) the investigating prosecutor prepares a resolution
recommending the dismissal and containing the following:
a. summary of the facts of the case;
b. concise statement of the issues therein; and
c. his findings and recommendations.
(2) within five days from the date of his resolution, the
investigating fiscal shall forward his resolution to the provincial,
city or chief state prosecutor, as the case may be, for review;
(3) if the resolution of the investigating prosecutor is reversed by
the provincial, city or chief state prosecutor, the latter may file the
information himself or direct another assistant prosecutor or state
prosecutor to do so;
(4) the resolution of the investigating prosecutor shall be strictly
confidential and may not be released to the parties, their counsels
and/or any other unauthorized person until the same shall have
been finally acted upon by the provincial, city or chief state
prosecutor or his duly authorized assistant and approved for
promulgation and release to the parties; and
(5) that the resolution of the investigating prosecutor, the
complainant's affidavit, the sworn statements of the prosecution's
witnesses, the respondent's counter-affidavit and the sworn
statements of his witnesses and such other evidence, as far as
practicable, shall be attached to the information.
CITY PROSECUTOR ARMANDO P. ABANADO, Complainant,
vs.
JUDGE ABRAHAM A. BA YONA, Presiding Judge, Municipal Trial
Court in Cities, Branch 7, Bacolod City,Respondent.
Q:24: What are the
recourses of the The order of the court, dismissing a case for lack of probable
complainant/respond cause, is a “final order since it disposes of the case, terminates the
ent if case is proceedings, and leaves the court with nothing further to do with
dismissed? respect to the case.” (Cajipe v. People)
CASES FOR READING
1. De Lima vs Reyes,
G.R. No 209330, Jan
11, 2016 Princess
2. WEBB VS. DE
LEON
GR 12134, 247
SCRA 652 (Aug 23,
1995)
3.De Ocampo vs
Secretary of Justice,
G.R. No. 147932, 25
January 2006
4.Estrada v.
Ombudsman, G.R. No.
212140-41, January
21, 2015
5.People v. Inting G.R.
No. 88919, July 25, Yasmin
1990 Abinal
