Rule 112 Preliminary Investigation- PAMARAN NOTES b.

b. To preserve the evidence and keep the witnesses within the control of
Diane Muego the State.
c. To determine the amount of bail if the offense is bailable.
NATURE OF RIGHT TO PRELIMINARY INVESTIGATION
Section 1. Preliminary investigation defined; when required. Preliminary
investigation is an inquiry or proceeding to determine whether there is Preliminary investigation is merely inquisitorial, and it is often the only means
sufficient ground to engender a well-founded belief that a crime has been of discovering the persons who may be reasonably charged with a crime, to
committed and the respondent is probably guilty thereof, and should be held enable the fiscal to prepare a complaint or information.
for trial.
It is NOT a judicial proceeding. Though the prosecutor, in some cases, is an
officer of the executive department exercising powers akin to those of the
Except as provided in section 7 of this Rule, a preliminary investigation is
required to be conducted before the filing of a complaint or information for an court and the similarity ends at this point.
offense where the penalty prescribed by law is at least four (4) years, two (2) It can be conducted ex parte if the respondent cannot be subpoenaed or does
months and one (1) day without regard to the fine. not appear after due notice.
The investigation is advicely called preliminary as it is yet to be followed by a It is not created by the Constitution. Its origin is statutory and it exists and the
trial proper. The occasion is not for full and exhaustive display of the parties right thereto can be invoked only when so established and granted by law.
evidence, it is for the presentation of such evidence only as may engender a
Preliminary Investigation is not an essential part of due process of law. In fact,
well-grounded belief that an offense has been committed (Hashim vs boncan)
it may be suppressed entirely without offending any constitutional prohibition.
Purpose: Its often repreated purpose is to secure the innocent against hasty,
But, once it is granted by law, the accused, unless he waives it, may not be
malicious and oppressive prosecutions and to protect him from open and
brought to trial without the merits without compliance with the statutory
public accusation of a crime, from the trouble, expense and anxiety of a public
requirements of preliminary investigation for, by then, it becomes part of due
trial and also to protect the State from useless and expensive prosecutions.
process in criminal cases.
THREE FOLD PURPOSE:
In fact undue delay in the conduct of preliminary investigation cannot be
a. To inquire regarding commission of a crime and the connection of the corrected and will result to dismissal of the case
accused with it in order that he may be informed of the nature and
character of the crime charged against him and if thereis probable
cause that he is guilty, the State may take necessary steps to bring him
to trial
EFFECT OF THE DENIAL OF THE RIGHT TO PRELIMINARY
INVESTIGATION; REMEDY
US vs Banzuela- The accused who is deprive of his liberty, tried and
sentenced without preliminary investigation having been made in this regard
is convicted without due process of law.
However, lately, in Pilapil vs SB- The Supreme Court held that the absence of
preliminary investigation does not affect the Courts jurisdiction over the case.
Nor do they impair the validity of the information or otherwise render it
defective but, if there were no preliminary investigations and the defendants,
before entering their plea, invite the attention of the court to their absence, the
court, instead of dismissing the information should conduct an investigation
and order the fiscal to conduct it.
WAIVER OF PRELIMINARY INVESTIGATION- The right to preliminary
investigation is a personal right which the accuse may waive either expressly
or by implication.
Where the accused waived his right to preliminary investigation, the fiscal
may forthwith file the corresponding information with the proper court.
It is settled rule that the right to preliminary investigation is deemed waived
by the failure to claim it before the accused pleaded or by his silence or fails
to request for it within 5 days from the time he learns of it the filing of
complaint or information.
Where the accused posted bond for his release and subsequently proceeded to
trial without claiming that he did not have the benefit of preliminary
investigation, he is deemed to have waived such right or any irregularity. But,
posting bail alone does not constitute a waiver of right to preliminary
investigation. It is posting of bail and submitting to arraignment that
irregularity is waived.
Where the respondent requested for the postponement and the city fiscal
proceeded with the same without notifying the respondent, there was
opportunity ot be heard but lost by negligence by failing to attend the
scheduled date of investigation.
A fortiori, absence of the accused constitutes a waiver of his right to
preliminary investigation.
CASES WHERE PRELIMINARY INVESTIGATION IS REQUIRED
Required to be conducted before the filing of the complaint or information for
an offense where the penalty prescribed by law is at least 4 years, 2 months
and 1 day without regard to fine.
The need for preliminary investigation depends upon the imposable penalty
for the crime charged in the complaint or information filed irrespective of the
court where it is to be filed.
The withholding of PI in cases punishable with a penalty below 4 years 2
months and 1 day is not termed to be unjust or unfair. The lost of time entailed
in the conduct of preliminary investigation with the consequent extensive
deprivation of the accuseds liberty, in case, he fails to post bail, which at
times outlast the period of the penalty for the offense, besides the mental
anguish suffered in protracted litigation are eliminated with the occurrence of
a speedy, and expeditious trial and prompt verdict on his innocence or guilt
ADMISSION INTO THE WITNESS PROTECTION PROGRAM
Before the start of the preliminary investigation, it may be important on the
part of the State or complainant to ascertain if there is any person who has
witnessed or has knowledge or information on the offense and has testified,
testifying or will testify on the said crime. IF there is any, steps should be
taken, for him to apply, if he is qualified under the Witness Protection
Program (RA 6981)
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
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
Under the last category falls the Graft Investigating Officers of the
Ombudsman and any lawyer in the government service designated by the
Ombudsman as special prosecutor or investigator.
The COMELEC too, through its duly authorized legal officers, has the power
to conduct preliminary investigations of all election offenses punishable under
election code and prosecute the same.
Under EO 14, the PCGG is empowered to file and prosecute cases, civil or
criminal, with the Sandiganbayan and involving cases of ill-gotten wealth of
Pres. Marcos.
AUTHORITY CO EXTENSIVE WITH TERRITORIAL
JURISDICTION
The authority of the prosecutors to conduct PI is limited to all offenses
cognizable by the proper court within their respective territorial jurisdiction.
In other words, PI shall be conducted in the place where the crime was
committed
AUTHORITY TO CONDUCT PRELIMINARY INVESTIGASTION
AND PROSECUTION OF GOVERNMENT-RELATED CASES OR
CHARGES AGAINST PUBLIC OFFICERS OR EMPLOYEES
It is now a settled rule as stated in George Uyvs Sandiganbayan that the
ombudsman is clothed with the authority to conduct preliminary investigation
and prosecute all criminal cases involving public official and employee, not
only those within the jurisdiction of the Sandiganbayan but as well as those
under the regular courts.
RA 6770 Section 15 vests the Ombudsman with the power to investigate and
prosecute any act or omission which appears to be illegal, unjust and
improper.
This definition is broad enough to embrace any crime committed by a public
officer or employee.
Sec11 of RA 6770 grants the Special Prosecutor the authority to conduct PI
and prosecute criminal cases within the jurisdiction of the Sandiganbayan
shall not be construed as confining the scope of the investigatory and
prosecutor power of the ombudsman to such cases. The special prosecutor is
merely a component of the Ombudsman and may only act under the
supervision and authority of the latter.
The power of the Ombudsman under sec 15 of RA 6770 is not an exclusive
authority but rather a shared or concurrent authority in respect to the offenses
cognizable by the regular courts.
Section 3. Procedure. 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 who 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 officer 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.
PROCEDURAL STEPS:
a. Filing of complaint- the complaint filed with the officer for purposes
of PI must be accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents in such number of
copies as there are respondents.
 These are required to be sworn to before any prosecutor or government
official authorized to administer oath. In their absence, sworn to a
notary public.
The officer must certify that he has personally examined the affiant
and that he is satisfied that the latter voluntarily executed and
understood his affidavit.
If made before any one who did not conduct the PI, he must again
appear before the investigating officer for his examination. Otherwise,
the latter cannot state that he has personally examined the
complainant and witnesses which is required in sec 4 hereof.
b. Action on the complaint- within 10 days after the filing of the
complaint, the investigating officer shall either dismiss the same if he
finds no ground to continue with the investigation or issue a subpoena
to the respondent.
The respondent shall have the right to examine the evidence submitted
by the complainant which he may not have been furnished and copy
them at his expense.
c. Counter affidavit and other supporting evidence also sworn to and
certified- Within 10 days from receipt of subpoenas, the respondent
shall submit his counter affidavit and that of his witnesses. It shall be
sworn to and certified and copies shall be furnished to the
complainant.
d. If respondent cannot be subpoenaed or does not submit counter
affidavit within 10 days, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.
The presence of the accused is not a condition sine qua non as long as
efforts to reach him are made.
e. Hearing by investigating officer The IO may set a hearing if there
are facts and issues to be clarified from a party or witness. The parties
may be present without the right to examine or cross examine.
The hearing shall be held within 10 days from receipt of coutner
affidavits or from expiration of period to submit. It shall be terminated
after 5 days.
f. Determination by the investigating prosecutor- Within 10 days after
the preliminary investigation, the IO shall determine whether or not
there is sufficient ground to hold respondent for trial.accused cannot
be compelled to appear in the preliminary investigation. If he does not
appear, he is deemed to have waived this right.
SEC 4: Resolution of the Investigating prosecutor and its review
Rationale: If the prosecutor finds cause to hold respondent for trial, he should
prepare a resolution to that effect and corresponding information.
The information must be accompanied by a sworn certification that he
conducted the requisite PI, affidavits and witnesses and that there is
reasonable ground to believe that a crime has been committed and accused is
probably guilty thereof. Omission of this, however, is not fatal.
IF he finds no probable cause, he must dismiss the case. It is as much the duty
of the prosecutor to protect the innocent as to prosecute guilt.
PROBABLE CAUSE- existence of facts and circumstances as would excite a
belief, in a reasonable mind, acting on facts within the knowledge of the
prosecutors, that the person charged was guilty of the crime for which he was
prosecuted.
DUTY OF THE ASSISTANT PROSECUTOR
If the PI was conducted by an assistant prosecutor, he must forward the
records of the case to the provincial or city prosecutor. As the case maybe
with 5 days from the resolution.
The determination made by the assistant fiscal or state prosecutor is at best
recommendatory. No information may be filed or dismissed by him without
prior approval of the provincial or city prosecutor.
The Regional state prosecutor is not authorized to do so.
The provincial or city prosecutor must take appropriate action within 10 days
from receipt of records.
APPEAL TO THE SECRETARY OF JUSTICE
The rule authorizes parties to file a petition to DOJ sec for review or
resolution of the city/provincial fiscal or chief prosecutor
1. The secretary of justice may, upon proper petition or motu propio,
reverse the resolution of the provincial/city prosecutor and direct the
fiscal to file a corresponding information without the need of another
preliminary investigation.
2. The secretary of justice may also dismiss or move for dismissal of the
complaint or information
The provincial/city prosecutor has no authority to review or overrule the
decision of the DOj secretary.
Where the information was already filed in court but the accused filed for
petition for review with DOJ, the court is bound to suspend the arraignment
for a period not exceeding 60 days (Rule 116, sec 11)
This does not contradict the case of Crespo vs mogul because said case merely
advised the DOJ to as far as practicable, refrain from entertaining a petition
for review or appeal when complaint/info is already filed in court.
Despite petition for review to DOJ, however, issuance and implementation or
enforcement of warrant of arrest are not deferred or suspended.
A certiorari should not be considered as the proper remedy to annul the result
of a preliminary investigation. Where a motion to quash is denied, the remedy
is not certiorari but to go to trial without prejudice to reiterating the same in
said trial. In the event that adverse decision is rendered after trial, an appeal
therefrom should be the next legal step.
APPEAL TO OFFICE OF PRESIDENT
Under Memorandum Circular 58, an appeal or petition may be filed with the
Office of the President for review of the decisions/orders/preliminary
investigation of criminal cases issued by DOJ sec in cases involving only
reclusion perpetua to death wherein new and material issues are raised which
were not previously presented.
The appeal herein is optional. The interested party may file a petition for
review directly with the Court of Appeals.
PETITION FOR CERTIORARI WITH SC UNDER RULE 65; WHEN A
PETITION FOR REVIEW UNDER RULE 43
Remedy of the aggrieved parties from resolutions of the office of Ombudsman
finding probable cause in criminal or non-administrative cases , when tainted
with grave abuse of discretion is to file an original action for certiorari with
Supreme Court not CA
In administrative disciplinary cases, however, handled by Ombudsman, a
petition for Review under rule 43 filed to CA. note: Sec 27 RA 6770
In all administrative disciplinary cases, orders, directives, or decisions of the
Office of the Ombudsman may be appealed to the Supreme Court by filing a
petition for certiorari within ten (10) days from receipt of the written notice of the
order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court. (Fabian vs Desierto)

Section 7 rule III of Admin Order No. 07: Finality of decision- 10 days from
receipt of notice of decision or order denying the motion for reconsideration to
appeal the decision.
Note: An appeal shall not stop the decision from being executory in case the
penalty is suspension or removal and the respondent wins such appeal, he
shall be considered as having been udner preventive suspension and shall be
paid the salary and other emoluments he did not receive by reason of the
suspension or removal.
SUMMARY: When it comes to decision/reso of ombudsman in criminal cases
or PI where there is grave abuse of discretion, it should be petition for
certiorari under rule 65 directly to SC.
But when it is administrative disciplinary measures, it should be a petition for
review before CA under Rule 43.