RULE 112 – PRELIMINARY INVESTIGATION 5. To determine the amount of bail, if the offense is bailable.

What is a preliminary investigation? What are the instances when probable cause needs to be established?
It is an inquiry or proceeding to determine whether there is sufficient ground to 1. When issuing a warrant of arrest or a commitment order
engender a well-founded belief that a crime has been committed and the respondent 2. A peace officer of private person in warrantless arrests
is probably guilty thereof, and should be held for trial. 3. To determine whether a search warrant shall be issued.

What is the nature of the right?
It is merely inquisitorial and a means of determining the persons who may be
reasonably charged with a crime. It is not a trial of the case on the merits.
Is PI part of the criminal trial?
It is not part of the trial of the criminal action in court. Nor it its record part of the
records of the case. The dismissal of the case by the investigator will not bar the filing
of another complaint for the same offense, but if re-filed, the accused is entitled to
another preliminary investigation.
Who are the persons authorized to conduct a PI?
1. Provincial or city prosecutors and their assistants;
2. National and Regional State Prosecutors; and
3. Other officers as may be authorized by law; such as:
a. Ombudsman
b. COMELEC
c. PCGG, with the assistance of the OSG;
d. And other government agencies, empowered to investigate, file and
prosecute cases investigated by it.

Is the right for PI a constitutional right? Can the court interfere the conduct of PI?
It is merely a substantive right, not a constitutional right. To deny the claim of the The courts cannot interfere in the conduct of PI, leaving the investigatory officers
accused to a PI would be to deprive him of his full measures of his right to due process. sufficient discretion to determine probable cause. Exception is grave abuse discretion.

When PI is required to be conducted? What is the extent of authority of the Ombudsman in the conduct of the PI
Before the filing of a complaint or information for an offense where the penalty The ombudsman has primary authority to investigate and exclusive authority to file a
prescribed by law is imprisonment of at least 4 years, 2 months and 1 day without prosecute Sandiganbayan cases.
regard to the imposable fine. - Does not include administrative cases of court personnel because the 1987
constitution vests in the SC administrative supervision over all courts and
What are the rights of the respondent in a PI? court personnel.
1. To submit a counter affidavit
2. To examine the evidence submitted by the complainant at his own expense; When does PI commence?
and Filing of the complaint with the investigating prosecutor.
3. To be present during clarificatory hearing
What are documents accompanying the complaint?
Can the right to a PI be waived? 1. The affidavits of complainant
Yes. The right to PI is deemed waived when the accused fails to invoke it before or at 2. Affidavits of witnesses
the time of entering a plea at arraignment. 3. Other supporting documents that would establish probable cause
It shall be deemed waived by:
 Express waiver or by silence Affidavits of the complainant shall be subscribed and sworn to before:
 Failure to invoke it during arraignment 1. Any prosecutor
 Consenting to be arraigned and entering a plea of not guilty without invoking 2. Any government official authorized to administer oaths; or
the right to preliminary investigation 3. In the absence or unavailability of the aforementioned, a notary public.
 Failure to request for it within 5 days from the time he learns of the filing of
the complaint or information, in those instances where the accused is lawfully The officer must certify that:
arrested without a warrant. 1. He has personally examined the affiants
Waiver must be clear and unequivocal manner. 2. He is satisfied that they voluntarily executed and understood their affidavits

What are the purposes of PI?
1. For the investigating prosecutor to determine if the crime has been
committed;
2. To protect the accused from inconvenience, expense and burden of
defending himself in a formal trial unless probability of his guilt is first
ascertained by a competent authority;
3. To secure the innocent against hasty, malicious, and oppressive prosecution
and to protect him from an open and public accusation of a crime and anxiety
of a public trial;
4. To protect the State from having to conduct useless and expensive trial; and
What is duty the Investigating Officer?
From the filing of the complaint, the investigating officer has 10 days within which to
decide on which of the ff. options to take:
1. Dismiss the complaint if he finds no ground conduct the investigation;
2. To issue a subpoena in case he finds the need to continue with the
investigation, in which case the subpoena shall be accompanied with the
complaint and its supporting affidavits and documents.
Within 10 days from receipt of Subpoena the respondent is required to submit:
1. a counter-affidavit
 2. the affidavits of his witnesses
3. the supporting documents relied upon for his defense.
No counter-affidavit or cannot be subpoenaed: investigating officer shall be resolve
the complaint based on the evidence presented by the complainant.
Is motion to dismiss allowed during PI?
In preliminary investigation, a motion to dismiss is not an accepted pleading for it
merely alleges the innocence of the respondent without rebutting or repudiating the
evidence of the complainant.
Is a clarificatory hearing mandatory?
It is not mandatory. A hearing may be set by the investigating officer only when there
are facts and issues to be clarified either from a party or witness, which shall be
conducted within ten days from the submission of the counter-affidavit, other
affidavits and documents filed by the respondent.
Does the record of the PI form part of the records of the case?
No. records of the PI shall not form part of the case.
Exception, when the considers in necessary in the resolution of the case or any
incident therein or it is introduced as evidence in the case.
Resolution of the Investigating Prosecutor
Within 10 days from the termination of the investigation, the IP shall determine
whether or not there is sufficient ground to hold the respondent for trial.
Afterwards, if the investigating officer finds cause to hold respondent for trial, he shall
prepare the resolution and information. Otherwise, he shall recommend the dismissal
of the complaint.
What does the information filed by the IP contain?
The information shall contain a certification by the investigating officer under oath in
which he shall certify the ff.:
1. that he, as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses;
2. that there is reasonable ground to believe that a crime has been committed
and that accused is probably thereof;
3. the accused was informed of the complaint and of the evidence submitted
against him;
4. that he was given a opportunity to submit controverting evidence
-Within 5 days from the issuance of his resolution, the IP shall forward the record the
case to the provincial, or city prosecutor of chief sate prosecutor, or to the
Ombudsman or his deputy by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten days from their receipt thereof
and shall be immediately inform parties of such.
What is the effect when there is no prior written authority or approval of the
provincial, or city prosecutor or ombudsman or his deputy
Complaints or information filed before the courts without prior written authority or
approval for the foregoing authorized officers renders the same defective and,
therefore subject to quashal pursuant to Rule 117.
What is the remedy of the aggrieved party from the resolution of the IP as
approved by his superior?
The aggrieved party is not precluded from filing a MR from receipt of the assailed
resolution. Only one MR shall allowed.
An aggrieved party may appeal by filing a verified petition for review with SJ and by
furnishing copies thereof to adverse party the prosecution office issuing appealed
resolution.
The appeal shall be taken within 15 days from receipt of the resolution or the denial
of the MR if one has been filed within 15 days from receipt of the assailed resolution.
Only one MR is allowed.
Unless the Secretary directly otherwise, the appeal shall not stay the filing of the
corresponding information in court on the basis of the finding of probable cause in the
assailed decision.
May a prosecutor be compelled by mandamus to file a complaint regarding a
complaint filed which he previously dismissed for ack of merit after PI?
No. determination of probable cause is within the discretion of the prosecutor. The
remedy is an appeal to the SJ.
Rule on reversal or modification of the Resolution of the Provincial or City
Prosecutor
The SJ may motu proprio reverse or modify the resolution of provincial or city
prosecutor or chief state prosecutor.
The SJ may review resolutions of his subordinates in criminal resolutions of his
subordinates in criminal cases despite the information being filed in court.
Once a criminal complaint or information is filed in court, any disposition thereof, such
as its dismissal or the conviction or acquittal of the accused, rests in the sound
discretion of the court. While the prosecutor retains the discretion and control of the
prosecution of the case, he cannot impose his opinion on the court. The court is the
best and sole judge on what to do with the case. Accordingly, a motion to dismiss the
case filed by the prosecutor before or after the arraignment, or after a reinvestigation,
or upon instructions of the Secretary of Justice who reviewed the records upon
reinvestigation, should be addressed to the discretion of the court. The action of the
court must not, however, impair the substantial rights of the accused or the right of
the People to due process of law. (Crespo vs Mogul)
What is the remedy of an aggrieved party against a Resolution of the SJ?
The resolution if the SJ is appealable administratively before the Office of the
President, and the decision of the latter may be appealed before the CA pursuant to
Rule 43.
Grave abuse, Rule 65 certiorari.
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. (Memorandum No. 58, 1993)
What is the remedy of an aggrieved party against a Resolution of the
Ombudsman?
Petition for Review via Rule 43 before the CA
Special Civil Action for Certiorari via Rule 65 before the CA in criminal cases
What is the effect of the filing of a Petition for Review before the DOJ if the
information was already filed in court?
This Court and the Court of Appeals possess the power to review findings of
prosecutors in preliminary investigations. Although policy considerations call for the
widest latitude of deference to the prosecutor’s findings, courts should never shirk
from exercising their power, when the circumstances warrant, to determine whether
the prosecutor’s findings are supported by the facts, or as in this case, by the law. In
so doing, courts do not act as prosecutors but as organs of the judiciary, exercising
their mandate under the Constitution, relevant statutes, and remedial rules to settle
cases and controversies. Indeed, the exercise of this Court’s review power ensures
that, on the one hand, probable criminals are prosecuted and, on the other hand, the
innocent are spared from baseless prosecution.
When warrant of arrest may issue?
Within ten (10) days after the preliminary investigation the investigating judge shall
transmit the resolution of the case to the provincial or city prosecutor or to the
Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction, for appropriate action.
The resolution shall state the findings of facts and the law supporting his action,
together with the record of the case which shall include: (a) the warrant, if the arrest
is by virtue of a warrant;
(b) the affidavits, counter-affidavits and other supporting evidence of the parties;
(c) the undertaking or bail of the accused and the order for his release;
(d) the transcripts of the proceedings during the preliminary investigation; and
(e) the order of cancellation of his bail bond, if the resolution is for the dismissal of
the complaint
What are the options of the judge upon the filing of the Information?
1. Dismiss the case of the evidence on record clearly failed to establish probable
cause;
2. If he finds probable cause, issue a WOA or commitment order
3. In case of doubt as to the existence of probable cause, order the prosecutor
to present additional evidence within five days from notice, the issue to be
resolved by the court within thirty days from the filing of the information.
What are the instances where warrant of arrest is not necessary?
1. When the accused is already under detention
2. If the accused is lawfully arrested without a warrant
3. The offense is penalized by fine only
Enumerate the cases where PI is not required
1. When the penalty prescribed by law for the offense involves less than 4
years, 2 months and 1 day
2. If a person is arrested lawfully without a warrant involving an offese which
requires PI, an complain or Information may be filed against him without
need of a PI provided that inquest has been conducted.
How cases where PI is not required instituted?
1. By filing the complaint directly with the prosecutor
2. By filing the complaint or information in the MTC
What are the instances when amendment of an information does not warrant
a new PI?
1. Amendment to information is not substantial
2. The court orders the filing of correct information involving a cognate offense
What is an inquest proceeding?
An inquest is an informal and summary investigation conducted by a public prosecutor
in a criminal case involving persons arrested and detained without the benefit of a
warrant of arrest issued by the court for the purpose of determining whether said
persons should remain under custody and correspondingly charged in court. (Section
1, DOJ Circular No. 61)
What is the remedy of the person arrested without warrant if he wants a preliminary
investigation?
BEFORE the complaint or information is filed, he may ask for one provided that he
signs a waiver of his rights under Article 125 of the Revised Penal Code in the
PRESENCE of his counsel. He may still apply for bail in spite of the waiver. The
investigation must be terminated within 15 days.
● Correlate this with Section 2 [e] of RA 7438 – Law Protecting Rights of Persons
under custody – i.e. he must be assisted by his counsel. Otherwise the waiver is not
valid.
AFTER the complaint of information is filed but before arraignment, the accused may,
within 5 days from the time he learns of its filing, ask for a preliminary investigation.
(Sec. 6, Rule 112, Rules of Court)
● The request for preliminary investigation should be made before plea, otherwise the
right to ask for a preliminary investigation shall be deemed waived.
● The period for filing a motion for preliminary investigation after an information has
been filed against an accused who was arrested without a warrant has been
characterized as mandatory by the court. In People vs Figueroa, the Supreme Court
held that as the accused in that case did not exercise his right within the five-day
period, his motion for reinvestigation was denied.