RULE 112 - PRELIMINARY INVESTIGATION

A. DEFINITION/DESCRIPTION

Section 1. Preliminary investigation defined. — 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.

Section 1. When required. - 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 offense where the penalty
prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.

a. When a matter of right

1. The holding of a preliminary investigation is not required by the Constitution. It is not a

fundamental right and is not among those rights guaranteed in the Bill of Rights. The right thereto is of a
statutory character and may be invoked only when specifically created by statute (Marinas v. Siochi, 104
SCRA 423). But while the right is statutory rather than constitutional, since it has been established by
statute, it becomes a component of due process in criminal justice (Doromal v. Sandiganbayan, 177
SCRA 354; Duterte v. Sandiganbayan, 289 SCRA 721; Ong v. Sandiganbayan, 470 SCRA 7).
When so granted by statute, the right is not a mere formal or technical right. It is 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 v. Sandiganbayan, 289 SCRA 721).

2. The right to preliminary investigation may be waived by the accused either expressly or
impliedly. The right to a preliminary investigation may be waived for failure to invoke the right prior to or
at the time of the plea (People v. Gomez, 117 SCRA 73; People v. Bulusan, 160 SCRA 492; Go v. Court
of Appeals, 206 SCRA 138).

The posting of a bond by the accused constitutes such a waiver, such that even if the warrant was
irregularly issued, any infirmity attached to it is cured when the accused submits himself to the jurisdiction
of the court by applying for bail (In Re: Letter of Freddie Manuel, 54 SCAD 97, Aug. 4, 1994). It is also
cured by submitting himself to arraignment (People vs. Hubilo, 220 SCRA 389).
b. Distinguish from preliminary examination

1. A “preliminary investigation” is conducted by the prosecutor to ascertain whether the alleged offender
should be held for trial, to be subjected to the expense, rigors and embarrassment of trial or if the
offender is to be released. A “preliminary inquiry or a preliminary examination” is conducted by the judge
to determine probable cause for the issuance of a warrant of arrest. This is a judicial function (People v.
Inting, 187 SCRA 788; AAA v. Carbonnel, 524 SCR 496).

2. “Preliminary investigation” is executive in nature. It is part of the prosecutor's job. “Preliminary

examination” is judicial in nature and is lodged with the judge. Sound policy supports this distinction.
Otherwise judges would be unduly laden with the preliminary investigation and examination of criminal
complaints instead of concentrating on hearing and deciding cases filed before their courts (Ledesma v.
Court of Appeals, 278 SCRA 656; Co v. Republic, 539 SCRA 147)

Fenequito vs. Vergara, Jr. 677 SCRA 113 ,

 July 18, 2012

1. Section 35 (l), Chapter 12, Title III of Book IV of the Administrative Code of 1987, mandates the
Office of the Solicitor General to represent the Government in the Supreme Court and the Court of
Appeals in all criminal proceedings, whereas, Section 11 of Presidential Decree No. 1275 provides
that the provincial and city prosecutor shall have charge of the prosecution of all crimes,
misdemeanors and violations of city or municipal ordinances in the courts of such province or
city and shall therein discharge all the duties incident to the institution of criminal prosecutions.
—It is wrong for petitioners to argue that it is the OSG which has authority to file an appeal with the RTC.
Section 35 (l), Chapter 12, Title III of Book IV of Executive Order No. 292, otherwise known as the
Administrative Code of 1987, mandates the OSG to represent “the Government in the Supreme Court
and the Court of Appeals in all criminal proceedings.” On the other hand, Section 11 of Presidential
Decree No. 1275, entitled “Reorganizing the Prosecution Staff of the Department of Justice and the
Offices of the Provincial and City Fiscals, Regionalizing the Prosecution Service, and Creating the
National Prosecution Service,” which was the law in force at the time the appeal was filed, provides that
the provincial or the city fiscal (now referred to as prosecutor) “shall have charge of the prosecution of all
crimes, misdemeanors and violations of city or municipal ordinances in the courts of such province or city
and shall therein discharge all the duties incident to the institution of criminal prosecutions.
2. Unless otherwise ordered, an Assistant City Prosecutor or a State Prosecutor may file an
appeal with the Regional Trial Court (RTC), questioning the dismissal by the Metropolitan Trial
Court (MeTC) of a case for lack of probable cause, even without prior authority or approval of the
City Prosecutor or the Chief State Prosecutor.—Petitioners’ reliance on Presidential Decree No. 911 is
misplaced, as the cited provision refers only to cases where the assistant fiscal or state prosecutor’s
power to file an information or dismiss a case is predicated or conditioned upon the prior authority or
approval of the provincial or city fiscal or the Chief State Prosecutor. There is nothing in the said law
which provides that in cases of appeal an Assistant City Prosecutor or a State Prosecutor may file the
same only upon prior authority or approval of the City Prosecutor or the Chief State Prosecutor.

Burgundy Realty Corporation vs. Reyes 687 SCRA 524 ,

December 10, 2012

1. Decisions or resolutions of prosecutors are subject to appeal to the Secretary of Justice who,
under the Revised Administrative Code, exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.― Review
as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in
the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence
committed in the initial steps of an administrative activity or by an administrative agency should be
corrected by higher administrative authorities, and not directly by courts.

2. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case.― It

must be remembered that the finding of probable cause was made after conducting a preliminary
investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. Its
purpose is to determine whether (a) a crime has been committed; and (b) whether there is a probable
cause to believe that the accused is guilty thereof.

3. In a preliminary investigation, the public prosecutor merely determines whether there is

probable cause or sufficient ground to engender a well-founded belief that a crime has been
committed, and that the respondent is probably guilty thereof and should be held for trial.― It
does not call for the application of rules and standards of proof that a judgment of conviction requires
after trial on the merits. The complainant need not present at this stage proof beyond reasonable doubt.
4. A preliminary investigation does not require a full and exhaustive presentation of the parties’
evidence.― Precisely, there is a trial to allow the reception of evidence for both parties to substantiate
their respective claims.

B. WHO MAY CONDUCT P.I.

a. The following are authorized to conduct a preliminary

Investigation:
i. Provincial or City Prosecutors and their assistants;
ii. National and Regional State Prosecutors; and
iii. 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.

b. The following are also authorized to conduct a preliminary

investigation:
i. Under the amendments to the Omnibus Election Code, the Commission on
Elections, through its duly authorized legal officers, has the power, concurrent
with the other prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under the Omnibus Election
Code and to prosecute the same (Sec. 265, B.P. 881, Omnibus Election Code,
as amended by RA. 9369, Sec. 43).
ii. The Office of the Ombudsman has the authority to investigate and prosecute on
its own or on complaint by any person, any act or omission of any public officer
or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take
over, at any stage, from any investigatory agency of the government, the
investigation of such cases (Sec. 15[1], R.A. 6770).
iii. The Presidential Commission on Good Government with the assistance of the
Office of the Solicitor General and other government agencies is empowered to
investigate, file and prosecute cases investigated by it (Executive Order No. 14,
May 7,1986).

Abanado vs. Bayona 677 SCRA 595,

July 30, 2012

1. The conduct of a preliminary investigation is primarily an executive function.―Thus, the courts

must consider the rules of procedure of the Department of Justice in conducting preliminary investigations
whenever the actions of a public prosecutor is put in question. An examination of the 2008 Revised
Manual for Prosecutors of the Department of Justice National Prosecution Service (DOJ-NPS Manual),
therefore, is necessary.
2. The Department of Justice National Prosecution Service (DOJ-NPS) Manual states that the
resolution of the investigating prosecutor should be attached to the information only “as far as
practicable.” Thus, such attachment is not mandatory or required under the rules.―We find that
there is nothing in the DOJ-NPS Manual requiring the removal of a resolution by an investigating
prosecutor recommending the dismissal of a criminal complaint after it was reversed by the provincial, city
or chief state prosecutor. Nonetheless, we also note that attaching such a resolution to an information
filed in court is optional under the aforementioned manual.

Heirs of the Late Nestor Tria vs. Obias 636 SCRA 91,
November 24, 2010

1. Cases subject to review by the Office of the President of resolutions issued by the Secretary of
Justice concerning preliminary investigations of criminal cases.— On the procedural issue raised by
the petitioners, we hold that the Office of the President did not err in taking cognizance of the appeal of
respondent, and that the CA likewise had jurisdiction to pass upon the issue of probable cause in a
petition challenging the OP’s ruling.

Memorandum Circular No. 58 provides: x x x x No appeal from or petition for review of

decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal cases
shall be entertained by the Office of the President, except those involving offenses punishable by
reclusion perpetua to death wherein new and material issues are raised which were not previously
presented before the Department of Justice and were not ruled upon in the subject
decision/order/resolution, in which case the President may order the Secretary of Justice to
reopen/review the case, provided, that, the prescription of the offense is not due to lapse within six (6)
months from notice of the questioned resolution/order/decision, and provided further, that, the appeal or
petition for review is filed within thirty (30) days from such notice. Henceforth, if an appeal or petition for
review does not clearly fall within the jurisdiction of the Office of the President, as set forth in the
immediately preceding paragraph, it shall be dismissed outright and no order shall be issued requiring the
payment of the appeal fee, the submission of appeal brief/memo-randum or the elevation of the records
to the Office of the President from the Department of Justice.

2. Preliminary investigation is executive in character.—It does not contemplate a judicial function. It is

essentially an inquisitorial proceeding, and often, the only means of ascertaining who may be reasonably
charged with a crime. Prosecutors control and direct the prosecution of criminal offenses, including the
conduct of preliminary investigation, subject to review by the Secretary of Justice. The duty of the Court in
appropriate cases is merely to determine whether the executive determination was done without or in
excess of jurisdiction or with grave abuse of discretion. Resolutions of the Secretary of Justice are not
subject to review unless made with grave abuse.

3. Probable cause is defined as 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.— It is a reasonable ground of
presumption that a matter is, or may be, well-founded, such a state of facts in the mind of the prosecutor
as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean “actual and positive cause” nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. A finding of probable cause
merely binds over the suspect to stand trial; it is not a pronouncement of guilt.
4. Court may ultimately resolve the existence or non-existence of probable cause.—This Court may
ultimately resolve the existence or non-existence of probable cause by examining the records of the
preliminary investigation when necessary for the orderly administration of justice, or to avoid oppression
or multiplicity of actions.

5. Non-referral by the Office of the President (OP) to the Department of Justice (DOJ) of the
respondent’s motion for reconsideration not violative of due pro­cess.—Petitioners’ argument that
the non-referral by the OP to the DOJ of the appeal or motion for reconsideration filed by the respondent
had deprived them of the opportunity to confront and cross-examine the witnesses on those affidavits
belatedly submitted by the respondent is likewise untenable. Under the procedure for preliminary
investigation provided in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, as amended, in
case the investigating prosecutor conducts a hearing where there are facts and issues to be clarified from
a party or witness, “[t]he 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.”

6. The justice secretary is not precluded from exercising his power of review over the
investigating prosecutor even after the information has already been filed in court; The justice
secretary’s subsequent resolution withdrawing the information or dismissing the case does not
cause the court to lose jurisdiction over the case.—In fact, the court is duty-bound to exercise judicial
discretion and its own independent judgment in assessing the merits of the resulting motion to dismiss
filed by the prosecution.

C. PROCEDURE IN METRO MANILA vs. OUTSIDE METRO MANILA

Uy vs. Javellana 680 SCRA 13 , September 05, 2012

1. The court shall not order the arrest of the accused except for failure to appear whenever
required.―Judge Javellana’s issuance of a Warrant of Arrest for the accused in People v. Cornelio, is in
violation of Section 16 of the Revised Rule on Summary Procedure, categorically stating that “the court
shall not order the arrest of the accused except for failure to appear whenever required.” Judge Javellana
never claimed that the accused failed to appear at any hearing. His justification that the accused was
wanted for the crime of attempted homicide, being tried in another case, Crim. Case No. 04-096, is totally
unacceptable and further indicative of his ignorance of law. People v. Cornelio, pending before Judge
Javellana’s court as Crim. Case No. 04-097, is for malicious mischief, and is distinct and separate from
Crim. Case No. 04-096, which is for attempted homicide, although both cases involved the same
accused. Proceedings in one case, such as the issuance of a warrant of arrest, should not be extended or
made applicable to the other.

2. The Revised Rule on Summary Procedure does not provide for a preliminary investigation prior
to the filing of a criminal case under said Rule.―A criminal case within the scope of the Rule shall be
commenced in the following manner:

SEC. 11. How commenced.― The filing of criminal cases falling within the scope of this Rule shall be
either by complaint or by information; Provided, however, That in Metropolitan Manila and in Chartered
Cities, such cases shall be commenced only by information, except when the offense cannot be
prosecuted de oficio. The complaint or information shall be accompanied by the affidavits of the
complainant and of his witnesses in such number of copies as there are accused plus two (2) copies for
the court’s files. If this requirement is not complied with within five (5) days from date of filing, the case
may be dismissed. previously referred to the Lupong Tagapamayapa shall be dismissed without
prejudice.

We see no ambiguity in the aforequoted provisions. A case which has not been previously referred to the
Lupong Tagapamayapa shall be dismissed without prejudice. A motion to dismiss on the ground of failure
to comply with the Lupon requirement is an exception to the pleadings prohibited by the Revised Rule on
Summary Procedure. Given the express provisions of the Revised Rule on Summary Procedure, we find
irrelevant Judge Javellana’s argument that referral to the Lupon is not a jurisdictional requirement. The
following facts are undisputed: People v. Celeste, et al. was not referred to the Lupon, and the accused
filed a Motion to Dismiss based on this ground. Judge Javellana should have allowed and granted the
Motion to Dismiss (albeit without prejudice) filed by the accused in People v. Celeste, et al.

D. INQUEST; WHAT IS

1. Inquest is the 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 custody and
correspondingly be charged in court (Sec. 1, Part II, Manual for Prosecutors).. Such proceedings must
terminate within the period prescribed under Art. 125 of the Revised Penal Code.

2. An inquest is not a preliminary investigation. It is a summary investigation and which does not
follow the procedures set forth in Sec. 3 of Rule 112 of the Rules of Court.

3. The inquest is conducted by a public prosecutor who is assigned inquest duties as an Inquest
Officer and is to discharge his duties, unless otherwise directed, only at the police stations/headquarters
of the PNP in order to expedite and facilitate the disposition of inquest cases (Sec. 2, Part II, Manual for
Prosecutors).

a. When applied
b. Waiver of Art. 125 of RPC

People vs. Valencia 214 SCRA 88 , September 18, 1992

1. Findings of trial court accorded great respect and finality.- The inconsistencies in the testimonies
of the prosecution witnesses cited by accused-appellant have not been shown to be deliberately made to
distort the truth and cannot, therefore, be regarded as dissolving and destroying the probative value of the
witnesses’ testimonies on the identity of the suspect, the presence of the rumble and the entry point of the
“sumpak” pellets. Settled is the rule that the findings of the trial court on the credibility of the witnesses
are accorded great respect and finality in the appellate court where the same are supported by the
evidence on record.

2. Prosecuting officer can file information even without preliminary investigation under Sec. 7 of
Rule 112.- A person who is lawfully arrested, without a warrant pursuant to paragraph 1(b), Section 5,
Rule 113, Rules of Court should be delivered to the nearest police station and proceeded against in
accordance with Rule 112, Section 7, which provides that the prosecuting officer can file the Information
in court without a preliminary investigation, which was done in the accused-appellant’s case. Since the
records do not show whether the accused-appellant asked for a preliminary investigation after the case
had been filed in court, as in fact, the accused-appellant signified his readiness to be arraigned, the Court
can only conclude that he waived his right to have a preliminary investigation, when he did, in fact,
pleaded “Not Guilty” upon his arraignment.

E. QUANTUM OF EVIDENCE
a. Probable Cause vs. Prima Facie

Presidential Commission on Good Government vs. Navarro-Gutierrez 773 SCRA 434 , October 21,
2015

1. It must be emphasized that in determining the elements of the crime charged for purposes of
arriving at a finding of probable cause, only facts sufficient to support a prima facie case against
the respondents are required, not absolute certainty.—Probable cause implies mere probability of
guilt, i.e., a finding based on more than bare suspicion, but less than evidence that would justify a
conviction. To reiterate, the validity of the merits of a party’s defense or accusations and the admissibility
of testimonies and evidences are better ventilated during the trial stage than in the preliminary stage. In
sum, the Court is convinced that there is probable cause to indict individual respondents of violating
Sections 3(e) and (g) of RA 3019. Hence, the Ombudsman committed grave abuse of discretion
amounting to lack or excess of jurisdiction in dismissing the criminal complaint against them.

2. The conduct of preliminary investigation proceedings, whether by the Ombudsman or by a

public prosecutor, is geared only to determine whether or not probable cause exists to hold an
accused-respondent for trial for the supposed crime that he committed.— In Fenequito v. Vergara,
Jr., 677 SCRA 113 (2012), the Court defined probable cause and the parameters in finding the existence
thereof in the following manner, to wit: Probable cause, for the purpose of filing a criminal information, has
been defined as such facts as are sufficient to engender a well-founded belief that a crime has been
committed and that respondent is probably guilty thereof. The term does not mean “actual or positive
cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief.
Probable cause does not require an inquiry whether there is sufficient evidence to procure a conviction. It
is enough that it is believed that the act or omission complained of constitutes the offense charged. A
finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has
been committed by the suspects. It need not be based on clear and convincing evidence of guilt, not on
evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute
certainty of guilt. In determining probable cause, the average man weighs facts and circumstances
without resorting to the 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.

3. Preliminary investigation is merely an inquisitorial mode of discovering whether or not there is

reasonable basis to believe that a crime has been committed and that the person charged should
be held responsible for it. Being merely based on opinion and belief, a finding of probable cause
does not require an inquiry as to whether there is sufficient evidence to secure a conviction.—“[A
preliminary investigation] is not the occasion for the full and exhaustive display of [the prosecution’s]
evidence. The presence and absence of the elements of the crime is evidentiary in nature and is a matter
of defense that may be passed upon after a full-blown trial on the merits.” Hence, “the validity and merits
of a party’s defense or accusation, as well as the admissibility of testimonies and evidence, are better
ventilated during trial proper than at the preliminary investigation level.”

4. In the recent case of Estrada v. Ombudsman, 748 SCRA 1 (2005), the Supreme Court (SC)
declared that hearsay evidence is admissible in determining probable cause in preliminary
investigations because such investigation is merely preliminary, and does not finally adjudicate
rights and obligations of parties.—It was error for the Ombudsman to simply discredit the TWG’s
findings contained in the Executive Summary which were adopted by the Ad Hoc Committee for being
hearsay, self-serving, and of little probative value. It is noteworthy to point out that owing to the initiatory
nature of preliminary investigations, the technical rules of evidence should not be applied in the course of
its proceedings. Citing a case decided by the Supreme Court of the United States, it was held that
probable cause can be established with hearsay evidence, as long as there is substantial basis for
crediting the hearsay.