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Preliminary Investigation

Rule 112 outlines the process and purpose of preliminary investigations, which are inquiries to determine if there is sufficient evidence to believe a crime has been committed and if the accused should stand trial. A preliminary investigation is required for offenses punishable by over four years of imprisonment unless the accused was arrested without a warrant and does not request one. The document details the procedures, rights, and roles of various officials in conducting these investigations, emphasizing that it is not a trial and does not place the accused in jeopardy.

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12 views3 pages

Preliminary Investigation

Rule 112 outlines the process and purpose of preliminary investigations, which are inquiries to determine if there is sufficient evidence to believe a crime has been committed and if the accused should stand trial. A preliminary investigation is required for offenses punishable by over four years of imprisonment unless the accused was arrested without a warrant and does not request one. The document details the procedures, rights, and roles of various officials in conducting these investigations, emphasizing that it is not a trial and does not place the accused in jeopardy.

Uploaded by

Abijah Cristobal
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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RULE 112: PRELIMINARY INVESTIGATION

What is preliminary Investigation?


-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.

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 such a case, 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.

What is the purpose of a preliminary investigation?

1. To determine if 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.

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 shall have 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, expenses and anxiety of a public trial.

4. To protect the state from having to conduct useless and expensive trials.

What is the scope of preliminary investigation?


-Preliminary investigation is merely inquisitorial and it is often the only means of discovering whether the offense has
been committed and the persons responsible for it to enable the fiscal to prepare his complaint or information. 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. It does not place the accused in jeopardy.

Is the right to a preliminary investigation a fundamental right?


-No, it is a statutory right and may be waived expressly or by silence. It is also not an element of due process, unless
it is expressly granted by law.

Can an accused demand the right to confront and cross-examine his witnesses during the preliminary
investigation? --No. The preliminary investigation is not part of the trial. It is summary and inquisitorial in nature, and
its function is not to determine the guilt of the accused out merely to deterring the existence of probable cause.

Is the lack of a preliminary investigation a ground for dismissing a complaint?


-No, the absence of a preliminary investigation does not affect the jurisdiction of the court but merely the regularity
of the proceedings. The court cannot dismiss the complaint on this ground, and it should instead conduct the
investigation or order the fiscal or lower court to do it.

Is the lack of a preliminary Investigation a ground for dismissing a complaint?


-No. The absence of a preliminary Investigation does not affect the jurisdiction of the court but merely the regularity
of the proceedings. The court cannot dismiss the complaint on this ground, and it should instead conduct the
investigation or order the fiscal or lower court to do it.

What is the effect of the absence of a certification that a preliminary investigation was conducted?
-It is of no consequence. What is important is that there was actually an investigation, that the accused was informed
thereof and was allowed to present controverting evidence.

When should the right to preliminary investigation be invoked?


-The accused should invoke it before plea, or else, it is deemed waived.
What if the court denies the invocation of the right to a preliminary investigation, what is the remedy of the
accused?
-He must immediately appeal it to the appellate court. He cannot later raise the issue for the first time on appeal.

If the complaint or information is amended, should a new preliminary investigation be conducted?


No.

If the complaint or information is substituted, should a new preliminary investigation be conducted?


Yes.

• Who may conduct a preliminary investigation?


1. Provincial or city prosecutors and their assistants
2. Judges of the MTCS
3. National and Regional State Presecutors
4. Comelec with respect to election offenses
5. Ombudsman with respect to Sandiganbayan offenses and other offenses committed by public officers
6. PCGG with respect to ill-gotten wealth cases
Can RTC judges conduct a preliminary investigation?
No. Although this should not be confused with the authority of the RTC to conduct an examination for the purpose of
determining probable cause when issuing a warrant of arrest.

What is the procedure in conducting a preliminary investigation?


1. The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainants and his witnesses as well as other documents to establish probable cause. The affidavits must be
subscribed and sworn before the prosecutor or government official authorized to administer oath or notary public
2. Within 10 days from the filing of the complaint, the investigating officer shall either:
a. dismiss it if he finds no ground to continue the investigation; or
b. issue a subpoena to the respondent accompanied by the complaint and affidavits. →The respondent shall
have the right to examine the evidence, etc.
3. Within 10 days from receipt of the subpoena, the respondent shall submit his counter-affidavit, the affidavits of his
witnesses, and other documents in his defense. Affidavits should also be sworn and subscribed. The respondent
cannot file a motion to dismiss in lieu of a counter-affidavit.
4. If the respondent cannot be subpoenaed or if he fails to file his counter-affidavit within 10 days, the investigating
officer shall resolve the complaint based on the evidence submitted by the complainant.
5. If there are facts and issued which need to be clarified, the investigating officer may set a hearing. The parties can
be present, but they cannot cross-examine. The hearing shall be held within 10 days from the submission of the
counter-affidavits or from the expiration of the period of their submission. It shall be terminated within 5 days.
6. Within 10 days from the termination of the investigation, the investigating officer shall determine whether or not
there is probable cause to hold the respondent for trial.

• Is a preliminary investigation a judicial proceeding?


-Yes, because there is an opportunity to be heard and the production and weighing of evidence upon which a
decision is rendered Since it is a judicial proceeding, the requirement of due process in judicial proceedings is also
required in preliminary investigations.

What is the difference between criminal investigation and preliminary investigation?


-Criminal investigation is a fact-finding investigation carried out by law enforcement officers for the purpose of
determining whether they should file a complaint for preliminary investigation. Preliminary investigation is
conducted for the purpose of determining if there is probable cause to hold a person for trial.

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.
• Is the presence of counsel in the preliminary investigation mandatory?
-No, Preliminary investigation is a summary proceeding and is merely inquisitorial in nature. The accused cannot yet
invoke the full exercise of his rights.

• How does the investigating prosecutor resolve the findings after preliminary investigation?

1. If he finds probable cause to hold the respondent for trial, he shall prepare the resolution and certify under
oath in the information that:
a. he or 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 against him;
d. that he was given an opportunity to submit controverting evidence.
2. If he finds no probable cause, he shall recommend the dismissal of the complaint.
3. Within 5 days from his resolution, he shall forward the record of the case to the provincial or city prosecutor
of chief state prosecutor of the Ombudsman. They shall act on the resolution within 10 days from receipt and
shall immediately inform the parties of such action.
4. No complaint of 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
5. If 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 Ombudsman on the ground that
probable cause exists, the latter may either:
a. by himself, file the information; or
b. direct another assistant prosecutor to file the information without need for a new preliminary
investigation.
6. The Secretary of Justice may upon petition by a proper party or by itself, reverse or modify the resolution of
the provincial or city prosecutor, the chief state prosecutor, or the ombudsman. In such a case, he shall direct
the prosecutor concerned to either file the information without need for a new preliminary investigation or
to dismiss or in court move for its dismissal if already filed in court.

If there was no preliminary investigation conducted, what is the remedy of the accused? (RICA P)
1. Refuse to enter plea
2. Insist on a preliminary investigation
3. File certiorari if refused
4. Raise it as an error on appeal
5. File a petition for prohibition

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