RULE 112 PRELIMINARY INVESTIGATION
protection clause.
1. What is preliminary investigation? Who are
authorized to conduct preliminary investigation?
Preliminary investigation is an inquiry to determine
whether there is sufficient ground to engender a well-
founded believe that (1) a crime has been committed,
(2) the respondent is probably the one who committed
it, and (3) he should be held for trial.
According to section 2 of Rule 112, those authorized to
conduct preliminary investigation are the following:
1. Provincial or City Prosecutors and their assistants.
2. National and Regional State Prosecutors
3. Other officers as may be authorized by law.
Those other officers authorized by law are the
following:
1. PCGG in cases of ill-gotten wealth, graft and
corruption cases of Marcos family, relatives, friends, and
cronies, and other cases as may be assigned by the
President.
2. Ombudsman in crimes/offenses committed by
public officers or employees
Notes:
In cases cognizable by the Sandiganbayan
primary jurisdiction. It can take over at any
stage.
In cases falling under the jurisdiction of other
courts concurrent jurisdiction with DOJ. Once
jurisdiction is vested in one of them, the other
cannot take over.
3. Comelec in violation of the Omnibus Election Code.
2. A case was first filed for PI in the DOJ. Later, the same
case was filed with the Comelec. Should the Comelec
continue with the Preliminary Investigation even if it
was already filed in the DOJ? Why?
NO. Jurisdiction to conduct preliminary investigation is
concurrent with DOJ.
3. What about the Truth Commission? Is this valid?
Why is it different from the jurisdiction of PCGG which
is directed to investigate Marcos cases?
In Biraogo v Philippine Truth commission, the Truth
commission was held to be invalid because it is directed
to conduct PI of the graft and corruption cases of the
Arroyo administration, thus making it against the equal
PCGG is different because it also investigates ill-gotten
wealth cases and not limited to Marcos cases.
4. In what instances will there be preliminary
investigation?
General Rule: If the penalty is imprisonment of at least 4
years, 2 months, and 1 day, without regard to the fine
Exception: when the respondent has waived his right;
when a person is lawfully arrested without a warrant
except in cases provided under Section 6, Rule 112.
5. What is inquest proceedings?
According to Section 1 DOJ Circular No. 61 series of
1993, it is an informal and summary investigation
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for the
purpose of determining whether or not said persons
should remain under the custody and correspondingly
be charged in court.
6. Who is the inquest officer? How are inquest
proceedings commenced?
The inquest officers are the prosecutors assigned by the
City or Provincial Prosecutor to inquest duties.
Inquest proceedings are commenced upon receipt by
the Inquest Officer from the law enforcement
authorities of the complaint/referral documents which
should include:
1. Affidavit of the arrest
2. Investigation report
3. Statement of the complainant and witnesses
4. Other supporting evidence gathered by the police in
the course of the latters investigation of the criminal
incident involving the arrested or detained person.
7. Do the PNP and NBI conduct preliminary
investigation?
No. They are only authorized to do fact-finding.
8. What if the documents submitted were incomplete?
The Inquest officer shall direct the law enforcement
agency to submit the required evidence within the
period prescribed under the provisions of Article 125
RPC; otherwise, the Inquest Officer shall order the
release of the detained person. Where the inquest is
conducted outside office hours, the law enforcement
officers shall be directed to file case with the
City/Provincial Prosecutor for appropriate action.
9. What are the periods under Article 125 of the RPC?
36 hours in cases of capital offenses. 18 hours in cases
punishable by correctional penalties. 12 hours for cases
punishable by light penalties.
10. Under the Human Security act, what are the cases
falling under it?
It pertains to acts of terrorism which creates a state of
panic or threat to public security.
11. Within how many hours or days should the person
arrested through a warrantless arrest be delivered to
the judicial authorities?
The person must be delivered within 3 days.
12. If there is probable cause but they cannot detain
him anymore because the period provided in Art 125
has already lapsed, what will the inquest officer do?
They will conduct Preliminary Investigation.
13. During the inquest proceedings, is it required that
the detained person be present?
Yes. Exceptions:
1. confined in a hospital
2. detained in a place under maximum security
3. production of the detained person involve security
risks
4. the presence is not feasible by reason of age, health,
sex, and other similar factors.
14. If the warrantless arrest is not valid, what should
the inquest officer do?
Recommend the release of the person arrested or
detained, note down the disposition of the referral
document, prepare a brief memorandum indicating the
reasons for the action taken and forward the same,
together with the record of the case to the
City/Provincial Prosecutor for appropriate action.
15. What if even if the arrest is not valid, he should be
held answerable for the offense, what will happen?
The order of release shall direct the officer having
custody to serve upon the detainee the subpoena or
notice of preliminary investigation.
16. How should the inquest officer determine probable
cause in inquest proceedings?
There is probable cause in the instances mentioned in
section 5, Rule 113.
17. Is it automatic when a person is arrested without a
warrant that he can never have preliminary
investigation?
No. The detained person should be asked if he desires to
avail himself of a PI. If he does, he shall be made to
execute a waiver of the provisions of Art125 RPC with
the assistance of a lawyer and, in case of non-availability
of a lawyer, a responsible person of his choice.
18. After the complaint or information is filed, how can
you ask for Preliminary investigation?
Ask for PI within 5 days of learning of the filing of the
Information.
19. Let us say that it has been 15 days since the
complaint has been filed but he only learned about it
after the 15th day, can he still ask for preliminary
investigation?
Yes, as long as he asks for it within 5 days after learning
about the filing.
20. Is the right to PI constitutional right?
No. It is only statutory. It does not impair the jurisdiction
of the court and does not nullify the information filed in
court.
21. What is the procedure for preliminary
investigation?
See section 3 Rule 112.
22. What about objects as evidence? Should they be
attached to the complaint-affidavit?
No, they need not be furnished a party but shall be made
available for examination, copying, or photographing at
the expense of the requesting party.
23. What must the prosecutor certify?
That the affiants has voluntarily executed and
understood their affidavits.
24. After the complaint-affidavit is filed, what does the
prosecutor do?
He will determine whether or not to dismiss the
complaint within 10 days after the filing of the
complaint. He shall EITHER:
(a) dismiss it if he finds no ground to continue with the
investigation
(b) require the respondent to file a counter-affidavit by
issuing a subpoena to the respondent attaching to it a
copy of the complaint and its supporting affidavits and
documents.
25. If the counter-affidavit is filed, should the
respondent swear also? Must the prosecutor make
another certification?
Yes.
26. Let us say the respondent received the subpoena
and said Oh my gosh, I just cant deal with this shit
right now. I dont wanna face this! I want to ignore it,
forever!?
The prosecutor will still proceed with his resolution
determining the existence of probable cause, regardless
of the absence of the counter-affidavit, without any halt
because it is their mandated duty according to the
manual for prosecutors.
27. What if the last known address is no longer the
address of the respondent, he is in hiding, the
subpoena could not be served. What will happen?
Determine probable cause regardless of the serving of
subpoena.
28. Regardless of whether the respondent received the
subpoena, the prosecutor must rule on the case on the
basis of the complaint-affidavit. This is an example of
how it is not part of the constitutional right of due
process. Let us say that the counter-affidavit was filed,
the prosecutor will determine probable cause. Let us
say that he recommended that there is probable cause,
what will happen next?
The investigating prosecutor 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.
The record of the case shall be forwarded to the
provincial or city prosecutor or chief state prosecutor or
to the Ombudsman or his deputy in cases cognizable by
the Sandiganbayan.
29. What if the investigating prosecutor found
probable cause but the city prosecutor did not?
There will be no Information filed.
30. The resolution normally states wherefore
probable cause is found to charge A with 2 counts of
rape. Then the information for 2 counts of rape is filed
against A. at the bottom if it is bailable, you will see the
recommended amount of bail. The rules provide that
no Information shall be issued without the approval of
which the provincial/city prosecutor or chief state
prosecutor. If it is only the investigating prosecutor
which approved the information, is that a valid
information? Is that a ground to quash the
information?
No it is not valid and is a ground to quash.
It is important to determine who are those
authorized to file the information. We have
already learned that lack of jurisdiction over the
person is a ground to quash. Now, we are
learning about the insufficiency of the complaint
as a ground to quash the information. What if
the crime involved here is a private offense? It
should be instituted by the private complainant.
What if the private individual did not want to file
the complaint but the prosecutor himself did it,
is that valid? No. It has to be the private
complainant that institutes the complaint for
those private offenses.
The resolution must come before the
Information.
 The chief state prosecutor must approve the
Information.
31. There is finding of PC, and you are the respondent.
What is your remedy, how do you assail the resolution
finding probable cause against you?
1. Petition for review with the Secretary of Justice
2. Motion for reconsideration with the Prosecutor
32. Is it necessary that before you file a petition for
review with the SOJ that there should first be a motion
for reconsideration?
No, a motion for reconsideration is not indispensable.
The Rules provide, under the NPS Rule on Appeals, that
you may file a petition for review with the SOJ within 15
days upon receipt of the resolution or within 15 days
upon receipt of the resolution denying the motion for
reconsideration.
33. Should the motion for reconsideration be verified?
What do you mean by verified?
Yes. It means that you swear that it is true and correct
based on your personal knowledge and on the records.
34. So you file a petition for review, what should be the
contents of your petition for review?
1. The names and addresses of the parties
2. The Investigation Slip number and criminal case
number, if any, and title of the case, including the
offense charged in the complaint
3. The venue of the preliminary investigation
4. The specific material dates showing that it was filed
on time
5. Clear and concise statement of facts, the assignment
of errors and the reasons or arguments relied upon for
the allowance of the appeal
6. Proof of service of a copy of the petition to the
adverse party and the Prosecution Office concerned.
35. A Petition for Review is filed before an information
is filed. Subsequently after the filing of the petition for
review there was an order for the issuance of warrant
of arrest and the accused was arrested and there was
an order for arraignment. Can you have the
proceedings suspended on the basis of the pending
petition for review?
Yes. Within 60 days from filing of the petition as the
period wherein the SOJ must rule on the petition for
review.
36. If after 60 days the SOJ has not yet ruled on the
petition for review, is the court mandated to further
suspend the proceedings? NO.
37. If you file a motion for reconsideration rather than
a petition for review, will the proceedings with the
court be suspended?
No. That is the difference between the petition for
review and a motion for reconsideration.
38. If afterwards there is a resolution of the SOJ
reversing the resolution of the Office of Prosecutor and
directing the withdrawal of the information, can that
be done absolutely?
No, it is already filed in court and the case is deemed
within the jurisdiction of the court and no longer in the
prosecutor. It is in the discretion of the court.
39. If you file petition for review and subsequently
there was an arraignment, will that cause the dismissal
of the petition for review? No.
40. But if you file the petition for review after
arraignment, what will happen? The SOJ will deny due
course.
41. Are there instances where you do not file directly
with SOJ and you just file with the provincial
prosecutor the petition for review? Yes.
42. Can you have judicial review of the preliminary
investigation?
As a general rule, no because they are granted discretion
but the exception is (1) when there is grave abuse of
discretion amounting to lack or excess of jurisdiction and
(2) there is no plain, speedy, adequate remedy under the
ordinary course of law.
43. So let us say that you did not file a motion for
reconsideration, you did not file a petition for review,
can you go straight and ask for a petition for certiorari?
No because there are other plain, speedy, adequate
remedy under the ordinary course of law such as a
motion for reconsideration and a petition for review.
44. Let us say that you are already in the SOJ and it was
denied and then you file a motion for reconsideration
and it was denied. And there is Grave Abuse of
Discretion, and there is no other plain, speedy,
adequate remedy, you can avail of rule 65. Where do
you file it? CA pursuant to the hierarchy of courts
45. What about with the Comelec? Who conducts the
preliminary investigation? If you want to assail the
resolution, is it the Comelec En banc or division? After
the resolution, where do you go for appeal?
46. With the Ombudsman, there are 2 aspects here:
where the public officer or employee commits an
offense, it can be administrative or a criminal case.
Administrative is when there is a violation of the civil
service rules, among others. Let us say that in the
administrative aspect, there is a ruling, what is your
remedy? Can you file a motion for reconsideration?
Then afterwards, how do you appeal?
Yes, you can file a motion for reconsideration within 5
days, under the Ombudsman Law. Appeal to CA, under
Rule 43.
47. Denied motion for reconsideration, what is your
remedy? Certiorari under rule 65 to the Supreme Court.
48. What is the difference between PC in preliminary
investigation and PC in issuance of warrant of arrest?
In preliminary investigation, the determination of PC is
an executive function lodged in those authorized to
conduct PI. In the issuance of warrant of arrest, the
determination is a judicial function lodged in the judges.
49. How should the judge determine whether there is
probable cause? Should he personally interview the
witnesses?
According to Soliven v Makasiar, the term personally
in the provision mandating the determination of
probable cause of a judge means that they should
examine the evidence and the records. Furthermore, in
the case of Okabe, the court held that the judge can rely
on the resolution of the prosecutor as it is as if he is
reviewing the resolution but he cannot rely solely on the
resolution as he must consider the affidavits, counter-
affidavits of the parties and their witnesses, together
with other supporting evidence.
50. If a warrant of arrest is issued but the judge merely
relied on the recommendation of the prosecutor, what
is your remedy against the warrant of arrest?
Move for the quashal of the warrant of arrest
RULE 113 ARREST
1. What is an arrest?
It is the taking of a person into custody in order that he
may be bound to answer for the commission of an
offense.
2. What are the instances where there can be a valid
warrantless arrest under Section 5 of Rule 113?
1. When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense.
2. When an offense has just been committed and he has
probable cause to believe based on personal knowledge
of facts and circumstances that the person to be
arrested has committed it
3. When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he
is serving final judgment or is temporarily confined while
his case is pending, or has escaped while being
transferred from one confinement to another.
3. Who may effect the warrantless arrest?
Any private person or public officer.
4. Your classmate A is attempting to steal the cellphone
of your other classmate B. Can you arrest her? Is it
required that you announce that you are arresting her?
Yes, according to Section 9 Rule 113, a private person
shall inform the person to be arrested of the intention
to arrest him and the cause of the arrest, UNLESS the
latter is either engaged in the commission of an offense,
is pursued immediately after its commission, or has
escaped, flees, or forcibly resists before the person
making the arrest has opportunity to inform him, or
when the giving of such information will imperil the
arrest.
5. Let us say that you are afraid of A because she is
armed so what you did you went to the police station
and brought a picture of A and told the police that it is
the picture of the person you saw attempting to steal
the cellphone of your classmate B. And then after that
the police went to the classroom to arrest A. Is the
arrest valid? Why?
No. Because the police has no personal knowledge of the
circumstances of the crime and what they relied on is
merely hearsay.
happily dancing to his own beat while holding his
cellphone light above him and suspected that he may
be high. The K9 dog sniffed the person and barked. Can
you arrest the person?

6. You were drinking with B. While you were drinking, 11. What is the doctrine in Terry?
you remembered the time when B cheated you in
pusoy dos. You got angry and attacked B, who called
the police while he was being attacked. The police
came and saw B bloodied in the ground. You on the
other hand were sitting near his body. The police asked
you what happened, you told them ginusto nya yan!
Dapat lang talagang mangyari yan sakanya! Gusto mo
ulitin ko? Can they arrest you without a warrant of
arrest?

Yes, the rule requires (1) probable cause and (2)

personal knowledge. Probable cause is established
when the police heard her say gusto mo ulitin ko?
There is personal knowledge because it was the victim
himself who called and they answered the call and when
they got there you were justifying it, thus a reasonable
person would conclude that you probably committed
the crime.

7. In Mendiola there was a crowd around a bloodied

person on the ground. You are a police officer and
made your way to the body. You asked him who
stabbed him and he answered that a guy in a white
shirt stabbed him with a bolo. In a corner of the street,
you saw a man with a bloodied shirt holding a bolo with
blood dripping from it. Can you validly arrest that
person without a warrant of arrest?

Yes probable cause is established by the circumstances.

8. There are children below the age of 10 selling drugs

and you saw them. Does that mean that there can
never be arrested and there will never be proceedings
against them?

9. There has been a surveillance over B who is a drug

dealer. After 6 months of surveillance, the police
decided to arrest B without a warrant?

Yes, the Court held in the case of Harvey v Santiago that

there is probable cause established due to the
surveillance of the person arrested.

10. Let us say that you are a PDEA officer for 20 years
and you have with you a K9 dog. You saw a person