RULE112 135

PRELIMINARY INVESTIGATION

25. Record of Preliminary Investigation Generally Not Part of the

RULE 112
PRELIMINARY INVESTIGATION
1. Preliminary Investigation
2. Absence or Irregularity of Preliminary Investigation
3. Probable Cause
4. National Prosecution Service Officers
5. Other Officers Authorized by Law
6. Judges are Not Authorized to Conduct Preliminary Investigation
7. Effect of Preliminary Investigation Conducted Without Authority
8. Overview of the Procedure
9. Investigating Prosecutor's Recommendation
10. Action on Recommendation of Reviewing Officer
Record of the Case
26. Cases Not Requiring Preliminary Investigation but Filed with
the Prosecutor
27. Cases Not Requiring Preliminary Investigation and Not Covered
by the Rule on Summary Procedure
28. Cases Covered by the Rule on Summary Procedure
Section 1. Preliminary investigation defin ed; when required. - 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.
Except as provided in Section 7 of this Rule, a preliminary inves-
tigation 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.

11. Prohibited Motions for Reinvestigation Under the Revised
Guidelines for Continuous Trial
12. Remedy Against an Adverse Finding
13. For Cases Requiring Preliminary Investigation
14. Judicial Determination of Probable Cause
15. Personal Examination
16. Probable Cause Hearing
17. Dismissal of Case for Failure to Establish Probable Cause
18. Order to Present Additional Evidence
19. When Warrant of Arrest not Necessary
20. Purpose of Inquest
21. Inquest Proceedings
22. Remedies After Inquest
23. Absence or Unavailability of Inquest Prosecutor
24. Preliminary Investigation Records Forwarded to the Court
134
PRELIMINARY INVESTIGATION
A preliminary investigation for the purpose of determining the
existence of probable cause is an executive function,1 inquisitorial in
nature,2 and is not part of a trial.3
In a preliminary investigation, the prosecutor determines whether or
not there is probable cause, that is, "whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent therein is probably guilty thereof and should be held for trial."4
Its goal, therefore, is to "determin[e] whether or not an information may be
prepared against the accused." 5
It is important to note that at this stage of the proceedings, the
proper term is respondent, not accused, as the preliminary investigation
De Lima v. Reyes, G.R. No. 209330, 11 January 2016; Callo-C/aridad v. Esteban, G.R. No.
191567, 20 March 2013; People v. Navarro, G .R. No. 96229, 25 March 1997; Castillo v.
Villaluz, G.R. No. L-34285, 08 March 1989.
Pilapil v. Sandiganbayan, G.R. No. 101978, 07 April 1993; Community Rural Bank v.
Talavera, A.M. No. R'IJ-05-1909, 06 Ap ril 2005.
Metropolitan Bank and Trust Company v. Reynado, G .R. No. 164538, 09 Augus t 2010.
De Lima v. Reyes, G.R. No. 209330, 11 January 2016, citing Rules of Court, Rule 112,
Section 1.
Abaya-Ang v. Ang, G.R. No. 178511, 04 December 2008; Uy v. Office of the Ombudsman,
G .R. N os. 156399-400, 27 June 2008.
 f
1 ; 136
CRIMINAL PROCEDURE RULE112
PRELIMINARY INVF.STIGATION
137

d the respondent. The term or information

h . . may be fil ed by a prosecutor without
. need of
is generally between the offended party,~~ att·on is filed in court in sue mvestig~tion ~rovided an inquest has been conducted in

~
h the uuorm '
accused only becomes proper w en hi!' ines against the accused, accord~nce with existing rules. In the absence or unavailability
which case it becomes the People of the P 1PP . of an mquest prosecutor, the complaint may be filed by the
' I · in witness.
and the offended party becomes the comp am g offend~d party or a peace office directly with the proper court on
the basts of the affidavit of the offended party or arresting officer
Statutory Right or person.
. . . t· ti. ·s "not a casual affair." 6 It is a substantive
PreIurunary mves 1ga on 1 . 1 7
Before the complaint or information is filed, the person
· ht, that although not consti'tutional in nature,. 1s also
ng . not
. mere
• "ty formal.
d ·
~este~ may ask for a preliminary investigation in accordance
II Th
· ht to preliminary
. erefore, t o d eny one,s ng ,, mvestigation 1s o epnve
him of the full measure of due process. 8 with t~s Rule, but he must sign a waiver of the provisions
I of Article 125 of the Revised Penal Code, as amended, in the
The purpose of a preliminary investigatio~, aside from d:t~rmining presence of _h is counsel. Notwithstanding the waiver, he may
probable cause, is to "secure the innocen~ agamst hasty, malicious an_d apply for bad and the investigation must be terminated within
oppressive prosecution and to protect him from an op_e n and publ~c fifteen (15) days from its inception.
accusation of a crime, from the trouble, expenses and anxiety of a pubhc
trial." 9 It also aims to "to protect the state from having to conduct useless After the filing of the complaint or irlformation in court
without a preliminary investigation, the accused may, within five
and expensive trials." 10
(5) days from the time he learns of its filing, ask for a preliminary
The rules require such investigation before an information or an investigation with the same right to adduce evidence in his
offense punishable by at least four (4) years, two (2) months and one (1) day defense as provided in this Rule. (Emphasis supplied.)
may be filed in court. Thus, for all other offenses, or those punishable by
less than four years, two months and one day, preliminary investigation is Due-Process
not mandatory. An exception to the rule, meaning a case where the offense
is punishable by at least four (4) years, two (2) months and one (1) day but Due process in a preliminary investigation is laid out in jurisprudence
preliminary investigation is not required, is for cases where the respondent as the right to be heard and be given reasonable opportunity to submit
evidence in one's defense:
undergoes inquest proceedings. Further, under Section 6, Rule 112 of the
Rules of Court a person subjected to inquest proceedings may request In the context of a preliminary investigation, the right to due
a preliminary investigation, in which case a waiver of the provisions of process of law entails the opportunity to be heard. It serves to
Article 125 of the Revised Penal Code must be signed in the presence of accord an opportunity for the presentation of the respondent's
counsel: side with regard to the accusation. Afterwards, the investigating
Section 6. VVhen accused lawfully arrested without warrant. - officer shall decide whether the allegations and defenses lead to a
reasonable belief that a crime has been committed, and that it was
When a person is lawfully arrested without a warrant involving an
the respondent who committed it. Otherwise, the investigating
offense which requires a preliminary investigation, the complaint
officer is bound to dismiss the complaint.

Ang-Abaya v. Ang, G.R. No. 178511, 04 December 2008. "The essence of due process is reasonable opportunity
Duterle v. Sandiganbayan, G.R. No. 130191, 27 April 1998 to be heard and submit evidence in support of one's defense.''
Duterte
an Gv.RSandiganbayan, G.R. No. 130191' 27 April 1998., a·h·ng DoromaI v. sand'1gan- What is proscribed is lack of opportunity to be heard. Thus, one
ba N
85468
1/Febru·a i;, 1~2· r
s , ~ptember 1989 and Go V. Court ofAppeals, G .R. No. 101837,
Office of the Omb~d::::oG :mio v. :bando, G.R. No. 176830, 11 February 2014; Uy v.
who has been afforded a chance to present one's own side of the
story cannot claim denial of due process. 11 (Emphasis supplied;
1.
G.R. No. 143802, 16 No;e~~r : 56399400, 27 June 2008; Sales v. Sandiganbayan,
2 citations omitted)
Ang-Abaya v. Ang, G.R. No. 178511 04 D ..
No. 150185, 27 May 2004. ' ecember 2008, cihng Okabe v. Gutierrez, G.R.
10
Duterle v. Sandiganbayan, G.R. No. 130191 27 . .. II Ocampo v. Aba11do, G.R. No. 176830, 11 February 2014.
G.R. Nos. 59241-44, 05 July 1989 · Salt CA, April 1998, c1tmg Tandioc v. Resultan,
' av. , L-41395, 31 July 1986.
 CRIMINAL PROCEDURE 139
138 RULE112
PRELIMINARY INVESTIGATION
. th accused, jurisprudence has
As to the specific rights available to . e reliminary investigation when required, is not to quash the information, but to remand it to the
clarified that " the rights of the respondent 1 r;
p ,,12 Section 3, Rule 112 investigating officer to conduct the investigation:

I are limited to those granted by pr<:><=edura ;w:t a counter-affidavit, to

provides the following rights: "the nght to su mt I inant and where the
. II h "d
examme a ot er ev1 ence su
bmitted by the comp a
..
,
uestions to the par ties or
fisc~ s~ts a hearing to propound clar1fica!ory be resent but without the
At the outset, this Court bears mention of the rudimentary
rule that the absence of a preliminary investigation is not a
ground to quash a complaint or information under Section 3,
Rule 117 of the Rules of Court. The proper procedure in case
their witnesses, to be afforded an opporturuty to P
of lack of preliminary investigation is to hold in abeyance the
right to examine or cross-examine.13
proceedings upon such information and the case remanded to
A preliminary investigation is also "not a trial o~ the _case on the the Office of the Provincial Fiscal or the Ombudsman, for that
merits" and also "not the occasion for a full and exhaustive display of the matter, for him or the Special Prosecutor to conduct a preliminary
parties evidence" as it only needs to determine whether there isyrobable investigation. 21
cause or "a well-grounded belief that an offense has been comrrutted, and
that the accused is probably guilty thereof."14 Mor~over'. it is also _not th~ However, a motion for reinvestigation or remand for preliminary
place to issue objections to the "admissibility of testimo!'1es and ~vidence investigation is a prohibited pleading under 2(b)(iii) of the Revised
or to "presence or absence of the elements of the c~e, . as s~ch 1ss~es ~e Guidelines for Continuous Trial of Criminal Cases22 in three instances:
"better ventilated during trial proper than at the prehmmary investigation iii. Motion for reinvestigation of the prosecutor
Ievel."15 recommending the filing of information once the information
has been filed before the court (1) if the motion is filed without
ABSENCE OR IRREGULARITY OF PRELIMINARY INVESTIGATION prior leave of court; (2) when preliminary investigation is
The absence of preliminary investigation does not affect the court's not required under Sec. 8, Rule 112; and (3) when the regular
jurisdiction over the case, but only to the regularity of the proceedings.16 preliminary investigation is required and has been actually
Neither does it impair or render defective the information.17 conducted, and the grounds relied upon in the motion are
not meritorious, such as issues of credibility, admissibility of
Thus, failure of accused to invoke his right to a prelimirlary evidence, innocence of the accused, or lack of due process when
investigation before or at the time of entering a plea at arraigriment is a the accused was actually notified, among others.zi (Emphasis
waiver of such right and any irregularity that attended it. 18 Therefore, the supplied.)
right can no longer be invoked for the first time in the appellate courts. 19
This is so because " [t]he right to a preliminary investigation is not a PROBABLE CAUSE
fundamental right and may be waived expressly or by silence." 20
Probable cause for purposes of filing a criminal information has been
As to the proper remedy and procedure, jurisprudence has ruled defined by jurisprudence as follows:
that the proper remedy in the absence of preliminary investigation,
Probable cause, for purposes of filing a criminal information,
has been defined as such facts as are sufficient to engender a
I
12
Estrada v. Ombudsman, G.R. N os. 212140-41, 21 January 2015, citing Webb v. De Leon, well-founded belief that a crime has been committed and
13
G.R. No. 121234, 23 August 1995.
Estrada v. Ombudsman, G.R. Nos. 212140-41, 21 January 2015, citing Paderanga v. Drilon,
that the private respondent is probably guilty thereof. It is I
G.R. No. 96080, 19 April 1991.
such a state of facts in the mind of the prosecutor as would
14
Community Rural Bank v. Talavera, A.M. No. RTJ-05-1909, 06 April 2005. lead a person of ordinary caution and prudence to believe or
15
Lee v. KBC Bank N.V., G.R. N o. 164673, 15 January 2010, citing Andres v . Cuevas, G.R. entertain an honest or strong suspicion that a thing is so. The
No. 150869, 09 June 2005.
16
Paderanga v. Dri/on, G.R. No. %080, 19 April 1991.
17
Pilapil v. Sandiganbayan, G.R. No. 101978, 07 April 1993. 21 Pilapil v. Sa11diganbaya11, G.R. No. 101978, 07 April 1993.
18
People v. Umbrero, G.R. No. 93021, May 20, 1991. 22
A.M. No. 15-06-10-SC.
19
,. People v . l.Azo, G.R. No. 75367, 19 June 1991. 23 A.M. No. 15-06-10-SC, 2(b)(iii).
Pilapil v. Sa11diganbaya11, G.R. No. 101978, 07 April 1993.
 140 CRIMINAL PROCEDURE
term does not mean actual or positive cause; nor does it import
absolute certainty. It is merely based on opinion and reas~nable
belief. Thus, a finding of probable cause does not require an
inquiry into whether there is sufficient evidence to proc_ur~ a
conviction. It is enough that it is believed that the ac! or omiss10_n
complained of constitutes the offense charged. Precisely, there is
a trial for the reception of evidence of the prosecution in support
of the charge.24 (Emphasis supplied.)
Probable cause for the purpose of filing an information, in Rule
112, Sections 1 and 3, should not be confused with the other probable
cause mentioned under the Rules of Criminal Procedure. In Estrada v.
Ombudsman,25 the Supreme Court enumerated the four (4) instances where
probable cause is determined:
There are four instances in the Revised Rules of Criminal
Procedure where probable cause, based only on the likelihood or
probability of guilt, is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating
officer, 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.
A preliminary investigation is required before the filing
of a complaint or information for an offense where the
penalty prescribed by law is at least four years, two
months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge,
to determine whether a warrant of arrest or a
commitment order, if the accused has already been
arreste_d, shall be issued and that there is a necessity
of placmg the respondent under immediate custody in
order not to frustrate the ends of justice;
(3) In Section S(R) of Rule 113: By a peace officer or a
private person making a warrantless arrest when an
offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has
committed it; and
Villanueva v. Secretary of Justice, G.R. No. 162187, 18 November 2005· B
COMELEC, G.R. No. 153945, 04 February 2003. ' aytan v.
25
Estrada v. Ombudsman, G.R. Nos. 212140-41, 21 January 2015.
RULE112 141
PRELIMINARY INVESTIGATION
(4 ) In Section 4 of Rule 126: By the judge to determine
whether a search warrant shall be is;ued, and only
upon probable cause in connection with one specific
offense to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
partic~larly describing the place to be searched and
th~ ~~gs t~be seized _which may be anywhere in the
Phihppmes. (Emphasis and underscoring supplied.)
. What is common, however, among these instances probable cause,
is that the standard of requires only the "likelihood" or "probability" of
guiit.27
In Estrad~ v. Omb~dsman, the Supreme Court ruled that probable cause
may be established with hearsay evidence "as long as there is substantial
basis for crediting the hearsay":
. Thus, probable cause can be established with hearsay
evidence. as long as there is substantial basis for crediting the
hearsay. Hearsay evidence is admissible in determining probable
cause in a preliminary investigation because such investigation
is merely preliminary, and does not finally adjudicate rights and
obligations of parties. However, in administrative cases, where
rights and obligations are finally adjudicated, what is required
is "substantial evidence" which cannot rest entirely or even
partially on hearsay evidence. Substantial basis is not the same
as substantial evidence because substantial evidence excludes l
hearsay evidence while substantial basis can include hearsay
evidence. To require the application of Ang Tibay, as amplified in
GSIS, in preliminary investigations will change the quantum of
evidence required in determining probable cause from evidence
of likelihood or probability of guilt to substantial evidence of
guilt.28 (Emphasis and underscoring supplied.)
Section 2. Officers authorized to conduct preliminary investigations. - The
following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) National and Regional State Prosecutors; and
26 Estrada v. Ombudsman, G.R. Nos. 212140-41, 21 January 2015.
-n Estrada v. Ombudsman, G.R. Nos. 212140-41, 21 January 2015.
28 Estrada v. Ombudsman, G.R. Nos. 212140-41, 21 January 2015.
 142
CRIMINAL PROCEDURE RULE 112 143
PRELIMINARY INVESTIGATION

· ed bylaw.
Other officers as may beauth onz
(c) . . so designated by the Ombudsman, to conduct preliminary investigation of
. . investigations shall include cases coming within the jurisdiction of the Sandiganbayan.33
1
Their authority to conduct pre immalJ'. th ir respective territorial
all crimes cognizable by the proper court m e With respect to election offenses, Article IX-C, Section 2(6) of the 1987
jurisdictions. Constitution vests in the Commission on Elections (COMELEC) the power

NATIONAL PROSECUTION SERVICE OFFICERS

. ·
The pre1urunary ·
inves t·1gati·on of criminal cases
. is lodged
. with. the
Department of Justice through the National P~ose_cut1~n Service. Its officers
2
are authorized to conduct preliminary investigation.
The Prosecution Staff, under the control and supervision of the
Department of Justice, is headed by the Prosecutor General, and compo~ed
of Deputy State Prosecutors, Assistant State_Prose~ut~rs, and Prosecut~on
Attorneys. It may "conduct the preliminary investigation ~d prosecution
of criminal cases involving national security, those for which task forces
have been created and criminal cases whose venues are transferred to
avoid miscarriage of justice, all when so directed by the Secretary of Justice
as public interest may require."30
The Provincial or City Prosecutor, or their assistants, have the power
to "investigate and/ or cause to be investigated all charges of crimes,
misdemeanors and violations of penal laws and ordinances within their
respective jurisdictions, and have the necessary information or complaint
prepared or made and filed against the persons accused." 31
LAW
OTHER OFFICERS AUTHORIZED BY
to "investigate and, where appropriate, prosecute cases of violations of
election laws, including acts or omissions constituting election frauds, t
offenses, and malpractices." The law further vests upon the COMELEC,
through its duly authorized legal officers, concurrent with the other
prosecuting arms of the government" the power to conduct preliminary
investigation and to prosecute election offenses under Batas Pambansa Big.
81.34
By Executive Order Nos. 1 and 14, the Presidential Commission on
Good Government (PCGG) has the power to investigate and prosecute
ill-gotten wealth cases of the former President Marcos, his relatives and
associates, and graft and corrupt practices cases that may be assigned
by the President to the PCGG to be filed with the Sandiganbayan. This
authority to investigate extended to the PCGG includes the authority to
conduct a preliminary investigation.35 The PCGG also has the power to
conduct preliminary investigation of cases of graft and corruption as the
President may assign from time to time.36
JUDGES ARE NoT AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATION
Batas Pambansa Bg. 129 otherwise known as The Judiciary
Reorganization Act of 1980, provides for the authority of judges of

The Special Prosecutor and his prosecution staff comprise the Office
Metropolitan Trial Courts, except those in the National Capital Region,
of Municipal Trial Courts, and Municipal Circuit Trial Courts to conduct I I
I

of the Special Prosecutor, which is an organic component of the Office of preliminary investigation. Section 37 of the law provides:
the Ombudsman and under the Ombudsman's supervision and control. Section 37. Preliminary investigation. - Judges of Metropolitan
The Office of the Special Prosecutor conducts preliminary investigation Trial Courts, except those in the National Capital Region, of
and prosecutes criminal cases within the jurisdiction of the Sandiganbayan, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
"under the supervision and control and upon the authority of the have authority to conduct preliminary investigation of crimes
Ombudsman." 32 alleged to have been committed within their respective territorial
A~ide from the Special Prosecuting Officers, the Rules of Procedure of jurisdictions which are cognizable by the Regional Trial Courts.
the Of?ce of the Ombuds1?an ~so authorizes Ombudsman Investigators, The preliminary investigation shall be conducted in accor-
Deputized Prosecutors,
. . . investigating officials authonze
· d b y Iaw t o dance with the procedure prescribed in Section 1, paragraphs
cond uct pre11minary investigations or lawyers m· th ·
' e government service
29
33 AO No. 07, Rules of Procedure of the Offic~ of the Ombudsman, Rule II, Sec~on 3.
See RA No. 10071, Sections 3 and 5. 34 BP Big. 881, Section 265; RA No. 9369, SechOn 43; Arroyo v. Department oflustice, G.R.
30
RA No. 10071, Section 5. No 199082 18 September 2012.
31
RA No. 10071, Section 9. lS : J'r. v . PCGG, G ·R· Nos: 92319-20, 02 October 1990.
32
RA No. 6770, Section 11. C01uangco,
36 Republic of the Philippines v. Sa11d1ga11baya11, G.R. No. 115906, 26 September 1994.

144 CRIMINAL PROCEDURE
. N 911 · Provided,
(a), (b), (c), and (d), of Presid_en~1al D~cree ti :hon .the Judge
I however, That if after the prehrrunary mves g ds of the case
finds a prima facie case, he shall forward the recor d.
to the Provincial/City Fiscal for the filing of the correspon mg
information with the proper court.
No warrant of arrest shaII be 1ssu · ed by the . Judge
. in
. .th
connection w1 any cnmma1 co. . mplai·nt filed with
. .him for
.
preliminary investigation, unless after an examn:1at1on 10
writing and under oath or affirmation of the ~omplamant and
his witnesses, he finds that a probable cause exists.
Any warrant of arrest issued in accordance herewith may
be served anywhere in the Philippines.
A.M. No. 05-8-26-SC, which took effect on 03 October 2005, amended
Rules 112 and 114 of the Revised Rules on Criminal Procedure, and removed
the conduct of preliminary investigation from judges of the fi~st _level
courts. MTC judges are thus no longer authorized to conduct prehmmary
investigation.37
EFFECT OF PRELIMINARY INVESTIGATION CONDUCTED W ITHOUT A UTHORITY
When the officer who filed the information is without authority,
such as w hen there is no prior written approval of the information by the
provincial or city prosecutor, the information is considered infirm and is
a jurisdictional defect that cannot be cured.38 Such an information may be
subject of a motion to quash, without prejudice to the refiling of the case by
an officer properly authorized.
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 whom must certify that he pe;sonally
37
Conquilla v. Bernardo, A.M. No. MTJ-09-1737, 09 Februa 2011
38
People v. Garfitt, C .R. No. 153176, 29 March 2004. ry ·
J
RULE 112 145
PRELIMINARY INVESTIGATION
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.
t
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) ff the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) days
period, the investigating office 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 th~ right t? ex~~ or
cross-examine. They may, however, submit to the mvestigating
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.
 146 CRIMINAL PROCEDURE
RULE112 147
PRELIMINARY INVESTIGATION
. sn·gation, the investigating
t r the inve .
(f) Within ten (10) days af e ot there is sufficient ground in court does not comply with a set of constitutive averments,
officer shall determine whether or n it is vulnerable to a motion to quash. The filing of a motion to
to hold respondent for trial. dismiss in lieu of a counter-affidavit is proscribed by the rule on
preliminary investigation, however.41
OVERVIEW OF THE PROCEDURE According to the rules, the complaint must state the address of the
. .d the procedure for the conduct of respondent, accompanied by supporting documents to establish probable
Section 3 of Rule 112 provi es reliminary investigation
preliminary investigation. If the cas~ undefr!~~t~p 3 of Rule 112. On th~ cause against the respondent. Among these documents are the affidavits
the applicable provision is the entirety O c on d d of the complainant and his or her witnesses and other documents, which
. t . directly filed with the prosecutor an oes are part of the complaint, unlike an information in which all material
o ther h and , if the complam 1s . . Secti 3( ) Of R 1 11
not undergo preliminary investigation, then only on a u e 2 averrnents should be in one document.42
· 39 Further, m
apphes. · cases fallingund er the Rule on Summary Procedure,
The rules state that the persons executing the complaint or its
then only Section 3(a) applies. components, i.e., offended party, any peace officer, or other public officer
As earlier stated, preliminary investigation is required for all cases charged with the enforcement of the law violated, as well as the witnesses
where the penalty prescribed is at least four (4) years, two (2) months, and whose statements are attached to the complaint affidavit, must appear
one (1) day. before either a prosecutor or a government official authorized to administer
an oath, or in their absence, a notary public, and swear to the truth of the
In general, the procedure under the entirety of Section 3 shall consist of
allegations in the complaint affidavit. These authorized persons shall affix
the following order: filing the complaint or complaint-affidavits, issuance
their signatures on the affidavit(s) and certify that they personally examined
of subpoena, filing of counter-affidavit, optional clarificatory hearing, and
resolution of the prosecutor. the affiants and that they are satisfied that the affiants voluntarily executed
and understood their affidavits.
Sec. 3(a) - Complaint-Affidavit or Complaint In an exceptional case, the Supreme Court ruled that a complaint-
The process of preliminary investigation starts with the filing of a affidavit notarized by a notary public in a foreign jurisdiction is in
complaint, or more particularly a complaint-affidavit. compliance with the requirement of sworn and subscribed affidavit.43
Moreover, the lack of an oath is a mere formal defect "which does not affect
For public crimes, the complaint need not be filed by the offended party, the substantial rights of the defendant on the merits." 44 I
as it can be initiated by "any competent person with personal knowledge 'I

of the acts com.mutted by the offender[,]" which includes witnesses.40 For
private crimes, the provisions of Rule 110, Section 5, are applicable.
A c~mplaint_(~ore properly, complaint-affidavit) for the purposes of
con~u~ting a prehn:m1ary in_vestigati?n _is not the same as that for initiating
a cnmmal prosecution, as discussed m Jurisprudence:
. ~ c~mp_laint for purposes of conducting relimin
investigation IS not required to exhibit the attend. ptru tur aryf
aco 1·t inf mgs c eo
mp am o~ ormation laid down in Rule 110 (Prosecution of
Offenses) which already speaks of the People of the Phil" .
as a party, an accused rather than a res ond tppmes
shall pronounce judgment If P. ent: and a court that
· a complamt or information filed
Section 3(a) also states that the affidavits of the complainants and
•I
his witnesses shall be certified by a prosecutor or notary, whichever is I I,
applicable, is to the effect that he "personally examined the affiants an? I
that he is satisfied that they voluntarily executed and understood thetr I
affidavits." I
As a rule, the affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oaths: or, in
their absence or unavailability aforementioned, before a notary pubhc, each
of whom must certify that he personally examined the affian~s an~ th~t h!
is satisfied that they voluntarily executed and understood thetr affidavits.
41 Santos-Cancio v. Department of Justice, G .R. No. 175057, 29 January 2008.
42 Santos-Cancio v. Department of Justice, G .R. No. 175057, 29 Janua ry 2008.

..
39

40
Rtdes of Court, Rule 112, Section 8(a). "3 Sasot v. People, G.R. N o. 143193, 29 June 2005.
Sonano v. People, G.R. No 162336 01 F b Sasot v. People, G.R. No. 143193, 29 June 2005.
· ' e ruary 2010. 45 Rules of Court, Rule 112, Sectio n 3 (a).
 148 CRIMINAL PROCEDURE
Sec. 3(b) -Action on the Complaint Affidavit (Dismissal or Subpoena)
. of the complaint,
This ru Ie prov1·des tha t w1·thin 10 days after the filing
I the investigating officer may do either one of rn:o (2) th!ngs:
complaint if he finds no ground to continue with t~e mveshgahon, or 2)
issue a subpoena to the respondent. The subpoena 1s sent to the address
~) di~miss the
indicated on the face of the complaint-affidavit. Attached t_o the subpoena
is a copy of the complaint-affidavit, as well as the supporting documents,
including witnesses' affidavits, if any.
Section 3(d), Rule 112 allows the prosecutor to resolve the complaint
based on the evidence before him if a respondent could not be subpoenaed.
The provision does not require the receipt of the subpoena as a condition
sine qua non to the validity of the proceedings the presence of the accused as
long as efforts to reach him were made, and an opportunity to controvert
the evidence of the complainant is accorded him.46 The reason for this
rule is to prevent "underhanded attempts of a respondent to delay the
prosecution of offenses."47
Right of Examination
Un?er Sectio_n 3(b) or Ru!e 112, the respondent shall have the right
to examme the ~v1dence subrmtted by the complainant which he may not
have ~en furnished and to copy them at his expense. If the evidence is
~olummous, the complainant may be required to specify those which he
mtends t~ pre_sent agairist the respondent, and these shall be made available
fo~ exammation . or copy~g by the respondent at his expense. Where
ob1ects are _subrmtted as evidence in preliminary investigation, they need
not b_e furrushed a party, but they shall be made available for examination,
copymg, or photographing at the expense of the requesting party.
The right of examination set forth under Section 3(b) Rule 112 of th
Rules of Court does not require the prosecutor to furni 'h d e
with the t affid • f s a respon ent
. co1:1° er- av1ts o his co-respondents, as a res ondent' s ri ht
of exammahon refers only to the evidence submitte d by t hp . g 48
e complamant.
Sec. 3(C) - Counter Affidavit
Within 10 days from receipt of the s b . prosecutor no longer conducted hearings after respondent submitted her
supporting affidavits and docum t u poena with the complaint and
en s, or such date as the prosecutor may
Ocampo v. Abando, G.R. No. 176830 11 F b
854 (1988). ' e ruary 20l4; Rodis v. Sandiganbayan, 248 Phil.
Ocampo v. Aba11do, G.R. No. 176830 11 F
854 (1988). ' ebruary 2014; Rodis v. Sandiganbayan, 248 Phil.
Estrada v. Ombudsmau, G.R. Nos. 212140
-41, 21 January 2015.
RULE112 149
PRELIMINARY INVESTIGATION
deem suffici~nt, ~he respondent is required to submit his counter-affidav it
. .
a~d 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 in the same manner as complaint affidavits.
In cas~ of ~ailure or refusal by the subpoenaed respondent to submit
counter-~fidav1 ts, the investigating office shall resolve the complaint based
on the evidence presented by the complainant within a 10-day period.
Reply Affidavit
Reply affidavits area matterof discretion on the part of the investigating
prosecutor, thus a prosecutor may require or can allow the filing or
submission of reply affidavits. As ruled in case law: "[a] complainant in a
preliminary investigation does not have a vested right to file a Reply - this
right should be granted to him by law. There is no provision in Rule 112 of
the Rules of Court that gives the Complainant or requires the prosecutor to
observe the right to file a Reply to the accused's counter-affidavit." 49
Sec. 3(d) - Resolution of the Assistant Prosecutor
As already discussed, in case of inability to subpoena the respondent,
or failure or refusal of the respondent to file counter-affidav its, the
investigating officer shall resolve the complaint based on the evidence
presented, within a 10-day period.
Sec. 3(e) - Optional Clarificatory Hearing
Under the rules, the investigating officer may set a hearing if there are
facts and issues to be clarified from a party or a witness. "The propounding
of clarificatory questions is an important component of a preliminary
investigation, moreso where it was requested by [respondents in the
preliminary investigation)] in order to shed light on the affidavits of
50
desistance purportedly executed by the private complainant. The hearing
shall be held within 10 days from submission of the counter-affidav its and
other documents or from the expiration of the period for their submission,
and shall be terminated within five (5) days. Where the investigating
counter-affidav it, this simply means that "at that point the investigating
51
prosecutor believed that there were no more matters for clarification."
49 Artillero v. Casimiro, G.R. No. 190569, 25 April 2012.
50 Mandia, Jr. v. Ombudsman, G.R. No. 132977, 29 November 2000.
51 De Ocampo v. Secretary ofJustice, G.R. No. 147932, 25 January 2006.
 RULE112 151
150 CRIMINAL PROCEDURE PRELIMINARY INVESTIGATION
• in Section 3(e) of Rule 112, rather
11 11
Where the investigating prosecutor recommends the dismissal of
As evidenced by the term may . . optional on the part the complaint but his recommendation is disapproved by the provincial
than being. d larifi atory hearing is or city prosecutor or chief state prosecutor or the Ombudsman or his
man atory, a c c . , ble during preliminary
of the investigating officer. It is not ind1spensa deputy on the ground that a probable cause exists, the latter may, by
investigation.52 himself, file the information against the respondent, or direct another
. .
Where the investigating prosecutor sets such a clarificatory
. hearing,
. assistant prosecutor or state prosecutor to do so without conducting
· can be present at the hearing
· bu t w 1·thout the nght another preliminary investigation.
the parties . to examme .
·
or cross-examine. They may su b ·
mit to th · estigating officer questions
e inv . . If upon petition by a proper party under such rules as the Department
w hich may be aske d to the party or witness concerned. . This. nght
. toffiask of Justice may prescribe or motu propio, the Secretary of Justice reverses
clarificatory questions however is not absolute. The investigating o cer or modifies the resolution of the provincial or city prosecutor or chief
I I • 1153
•
has the "discretion whether or not he will propound these questions. state prosecutor, he shall direct the prosecutor concerned either to file
the corresponding information without conducting anther preliminary
Sec. 3(f) - Determination of the Prosecutor
investigation, or to dismiss or move for dismissal of the complaint or
This rule states that within ten (10) days after the investigation, information with notice to the parties. The same rule shall apply in
whether or not a hearing for additional evidence was set, " the investigating preliminary investigations conducted by the officers of the Office of the
officer shall determine whether or not there is sufficient ground to hold Ombudsman.
respondent for trial."
INVESTIGATING P ROSECUTOR'S R ECOMMENDATION
Section 4. 'Resolution of investigating prosecutor and its review. - If the
investigating prosecutor finds cause to hold the respondent for trial, After conducting preliminary investigation as laid down in Section 3
or Rule 112, the prosecutor may find probable cause to hold a respondent
he shall prepare the resolution and information. He shall certify under
for trial, in which case he shall prepare the recommended resolution
oath in the information that he, or as shown by the record, an authorized
and information. At the bottom of the information, the investigating
officer, has personally examined the complainant and his witnesses; that
prosecutor executes a certification that form the evidence presented,
there is reasonable ground to believe that a crime has been committed there is a reasonable ground to believe that the offense charged has been
and that the accused is probably guilty thereof; that the accused was committed and that the accused is probably guilty thereof.54 If, on the
informed of the complaint and of the evidence submitted against him; other hand, the investigating prosecutor finds that no probable cause
and that he was given an opportunity to submit controverting evidence. exists to hold respondent for trial, he shall recommend the dismissal of
Otherwise, he shall recommend the dismissal of the complaint. the complaint.
Within five (5) days from his resolution, he shall forward the record Whatever the investigating prosecutor' s recommendation is, it
of the case to the provincial or city prosecutor or chief state prosecutor, must be with prior written authority or approval of the provincial or city
or to the Ombudsman or his deputy in cases of offenses cognizable by prosecutor or chief state prosecutor or the Ombudsman or his deputy. For
the Sandiganbay'?1 in t~e ~xercise of its original jurisdiction. They shall this purpose, within five (5) days from his resolution, the investigating
act on the resolution w1thm ten (10) days from their receipt thereof and prosecutor shall forward the record of the case to the pertinent reviewing
shall immediately inform the parties of such action. prosecutor. They shall act on the resolution within 10 days from their
. ~o c?mplaint or inf~rmation may be filed or dismissed by an receipt thereof and shall immediately inform the parties of such action.
mvestigating prosecutor without the prior written authority or approval
of the provincial_ or city prosecutor or chief state prosecutor or the A CTION ON R ECOMMENDATION OF R EVl£WING OFFICER
Ombudsman or his deputy.
The provincial or city prosecutor or chief state prosecutor, or
the Ombudsman or his deputy in cases of offenses cognizable by the
52
53
De Ocampo v. Secretary of f11stice, G.R. No. 147932, 25 January 2006. 54 Okabe v. Gutierrez, G .R. No. 150185, 27 May 2004.
Paderanga v. Drilon, G.R. No. 96080, 19 April 1991.
 152 CRIMINAL PROCEDURE
. • • l ·urisdiction, shall either
Sandiganbayan in the exercise of its ongma J d t·
. . . .
approve or disprove the mvestigattng pro
secutor's recommen a ion.
. tt· ttn
Where the mves ga g pro
· . • of the
secutor recommends the dismissal • peti~ons for review of resolutions of Provincial/City Prosecutors in cases
1
complaint but his recommendation is disapproved by the pro~mcia or city
prosecutor or chief state prosecutor or the Ombudsman or ~s dep~ty on
the ground that a probable cause exists, the latter may, b~ himself, file the
information against the respondent, or direct another assistant pr~se~utor
or state prosecutor to do so without conducting another prehmmary
investigation.
PROHIBITED MOTIONS FOR REINVESTIGATION UNDER THE R EVISED GUIDELINES FOR
CONTINUOUS TRIAL
Under the Revised Guidelines for Continuous Trial of Criminal Cases,
the following motions for reinvestigation are prohibited motions:
A motion for reinvestigation of the prosecutor recom-
mending the filing of the information once the information has
been filed with the court (1) if the motion is filed without prior
leave of court, (2) when preliminary investigation is not required
under Sec. 8, Rule 112; and (3) when the regular preliminary
investigation is required and has been actually conducted, and
the grounds relied upon in the motion are not meritorious, such
as issues of credibility, admissibility of evidence, irmocence
of the accused, or lack of due process when the accused was
actually notified among others.55
REMEDY AGAINST AN ADVERSE FINDING
Chief State Prosecutor, Regional State Prosecutors and Provincial or City
Prosecutor
A party affected by a finding of either the presence or absence of
probable cause may file a petition for review under the rules prescribed
by the Department of Justice. The Department of Justice Circular No. 70,
the_2000 NPS Rule on Appeal, applies to "appeals from resolutions of the
Chief State ~rosecutor, Re_gi~nal ~tate Prosecutors and Provincial/City
Prosecutors m cases of prehmmary mvestigation/reinvestigation."56
..The aggrieved
. . . in such cases, may appeal by fil"mgaverifi"e d
party,
· or of the
petition for review within 15 days from recei·pt of the reso1ution
55
Revised Guidelines for Continuous Trial of C . . I Cas
III.2.b.iii. nrruna es, A.M. No. 15-06-10-SC,
56
Department of Justice Circular No. 70 2000 NPS Rul
' e on Appeal, Section 1.
RULE112 153
PRELIMINARY INVESTIGATION
. • • if
• or remvestigation
the motion for reconsi'derat10n • one h as been
fl d of
denial .thin
1
e_ '. WI 15 ~ays from receipt of the assailed resolution.57 Further, "all
co~z~ble b_Y t~e ~etropolitan Trial Courts, Municipal Trial Courts, and
M~cipa! Circmt Tnal Courts, except in the National Capital Region, shall
be filed_~Ith the Regional State Prosecutor concemed.58 For all other cases,
the petition shall be filed with the Office of the Secretary. Department of
Justice.59 '
Office of the Ombudsman
In the case of criminal preliminary investigations conducted under the
Rules of Pro_cedure of the Office of the Ombudsman, the aggrieved party's
remedy against an adverse finding is a motion for reconsideration within
five (5) days from notice. Rule II, Section 7 of the same Rules provides:
Section 7. Motion for reconsideration - Only one motion
for reconsideration or reinvestigation of an approved order or
resolution shall be allowed, the same to be filed within five (5)
days from notice thereof with the Office of the Ombudsman,
or the proper Deputy Ombudsman as the case may be, with
corresponding leave of court in cases where information has
already been filed in court[.]6()
Consequence of Remedy
If upon petition by a proper party or motu proprio the Secretary of
Justice reverses or modifies the resolution of the investigating officer, 'I
I
he shall direct the prosecutor concerned either to file the corresponding I
information without conducting another preliminary investigation, or to
dismiss or move for dismissal of the complaint or information with notice
to the parties. The same Rule applies, mutatis mutandis, to preliminary
investigations conducted by officer of the Office of the Ombudsman.
Effect of Availing the Remedy on the Filing of the Petition
The filing of a petition for review with the Secretary of Justice" shall not
hold the filing of the corresponding information in court on the basis of the
finding of probable cause in the appealed resolution[,]" unless otherwise I
directed by the Secretary of Justice.61 However, the filing of the Petition 11
I
57
58
Department of Justice Circular No. 70, 2000 NPS Rule on Appeal, Section 3.
Department of Justice Circular No. 70-A, 10 July 2000. II
59 Department of Justice Circular No. 70, 2000 NPS Rule on Appeal, Section 4.
oo Rules of Procedure of the Office of the Ombudsman, as amended, AO No. 7, 10 April
1990, Rule II, Section 7.
•' Department of Justice Circular No. 70, 2000 NPS Rule on Appeal, Section 9.
 154 CRIMINAL PROCEDURE
. f the accused for a period not
for Review will suspend the arra1grunent O . • 62
exceeding sixty (60) days from the filing of the petit!On.
I . . of a motion
The filmg . for recons1'd era t'10n or reinvestigation with .the
Office of the Ombudsman "shall not bar the filing of the correspo~dmg
information in Court on the basis of the finding of probable cause m the
resolution subject of the motion."6.J
Section 5. When wnrrnntofnrrestmny issue. - (a) By the-!egion.al Trial C~urt.
- Within ten (10) days from the filing of the complamt or mformation,
the judge shall personally evaluate the resolution of the prosecutor and
its supporting evidence. He may immediately dismiss the case if the
evidence on record clearly fails to establish probable cause. If he finds
probable cause, he shall issue a warrant of arrest, or a commihnent order
when the complaint or information was filed pursuant to section 6 of this
Rule. In case of doubt on the existence of probable cause, the judge may
order the prosecutor to present additional evidence within five (5) days
from notice and the issue must be resolved by the court within thirty (30)
days from the filing of the complaint of information.
(b) By the Municipal Trial Court. - When required pursuant to the
second paragraph of section 1 of this Rule, the preliminary investigation
of cases falling under the original jurisdiction of the Metropolitan
Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court shall be conducted by the prosecutor. The
procedure for the issuance of a warrant of arrest by the judge shall be
governed by paragraph (a) of this section.
(c) 1:.Vhen warrant of arrest not necessan;. - A warrant of arrest shall
not issue if the accused is already under detention pursuant to a warrant
issued by the municipal trial court in accordance with paragraph (b) of
this section, or if the complaint or information was filed pursuant to
section 6 of this Rule or is for an offense penalized by fine only. The
court shall them proceed in the exercise of its original jurisdiction.
FOR CASES REQUIRING PRELIMINARY INVESTIGATION
65
. 1:his . rule applies to cases previously reqmrmg preliminary
mvestigat10n at the level of the Office of the Prosecutor bef th fil'
f th inf • . ore e mg
o . e ormahon i_n cour~. The same rule applies whether the case is filed
with the Metropohtan Tnal Court, Municipal Trial Co t M · · al
.
C 1rcmt· T 'al c f ur or uruc1p
n ourt, or those whose imposable penalty d oes not exceed six
·
62
Rules of Court, Rule 116, Section ll(c).
6J
AO No. 07, Rules of Procedure of the Office of th O b d
e m u sman, Rule II, Section 7.
RULE112 155
PRELIMINARY INVESTIGATION
~6) years, regardless of the fine, or the Regional Trial Court, for those whose
imposable penalty exceeds six (6) years but the penalty is at least four (4)
years two (2) months and one (1) day, regardless of the fine.
. For cases not requiring preliminary investigation at the level of the
Office of the Prosecutor but the information is later filed in court, Section 8,
Rule 112 of the Rules of Court is the applicable rule.64
Once the information is filed, the court will have to ascertain if there
is probable cause for issuance of the warrant of arrest.
For cases falling under the Rule on Summary Procedure, the applicable
rule is Section 12 of the Rules on Summary Procedure.65
Sec. 8. Cases not requiring a preliminary investigation nor covered by the Rule an Summary
Procedure. -
(a) Iffiled with the prosecutor. - If the complaint is filed directly with the prosecu-
tor involving an offense punishable by imprisonment of less four (4) years, two (2)
months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be
observed. The prosecutor shall act on the complaint based on the affidavits and other
supporting documents submitted by the complainant within ten (10) days from its
filing.
(b) Iffiled with the Municipal Trial Court. - If the complaint or information is filed
directly with the Municipal Trial Court or Municipal Orcuit Trial Court for an
offense covered by this section, the procedure in section 3(a) of this Rule shall be
observed. U within ten (10) days after the filing of the complaint or information,
the judge finds no probable cause after personally evaluating the evidence, or after
personally examining in writing and under oath the complainant and his witnesses
in the form of searching question and answers, he shall dismiss the same. He may, I
however, require the submission of additional evidence, within ten (10) days from I
notice, to determine further the existence of probable cause. If the judge s till finds no
probable cause despite the additional evidence, he shall, within ten (10) days from
its submission or expiration of said period, dismiss the case. When he finds probable
I
cause, he shall issue a warrant of arrest, or a commitment order if the accused had
already been arrested, and hold him for trial. However, if the judge is satisfied that
there is no necessity'for placing the accused under custody, he may issue summons .j
instead of a warrant of arrest.
Sec. 12. Duty of court. -
(a) If commenced by complaint. - On the basis of the complaint and the affidavits and I
other evidence accompanying the same, the court may dismiss the case outright for
being patently without basis or merit and order the release of the accused if in custody.
(b) If commenced by infonnation. - When the case is commenced by information,
or is not dismissed pursuant to the next preceding paragraph, the court shall issue
an order which, together with copies of the affidavits and other evidence submitted
by the prosecution, shall require the accused to submit his counter-affidav it and the
affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof
on the complainant or prosecutor not later than ten (10) days from receipt of said
order. Toe prosecution may file reply affidavits within ten (10) days after receipt of
the counter-affidavits of the defense.

CRJMINAL PROCEDURE
156
.. Jiminary investigation, Section
For offenses previously requmng pre( ) f s upon filing of the
3 op 10~ the warrant of arrest
S(a) of this rule gives the court three. O
information- a) dismissal of the case, b) issuance t t b .
O
after detemrination of probable cause, or c) order the pros:u or su . nut
additional evidence to clear any doubt as to which of the st two options
he will choose. The options available to the judge is stated in case law as
follows:
Section S(a) of Rule 112, grants the trial co':11"t three ~ptions
upon the filing of the criminal complaint or information. . He
may: a) dismiss the case if the evidence on record cle~I~ f~Jed
to establish probable cause; b) issue a warrant of arrest if 1t finds
probable cause; or c) order the prosecutor to present additional
evidence within five days from notice in case of doubt on the
existence of probable cause.66
Once the information is filed in court, it is the duty of the judge before
arraignment to determine existence of probable cause,67 and a pending
motion to quash will not defer the issuance of the warrant of arrest. 68
Moreover, after arraignment has taken place the judge can no longer
determine probable cause.69
The question of whether or not to issue a warrant of arrest, or dismiss
the case, or to require additional evidence, ultimately rests on the sound
discretion of the court.
JUDICIAL DETERMINATION OF PROBABLE CAUSE
Article III, Section 2 of the Constitution states that no warrant of arrest
shall issue except upon probable cause determined personally by the judge:
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon
prob~ble _cause to be determined personally by the judge after
ex~ation under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
Hao v. People, G.R. No. 183345 17 Se t be
54, 13 N ovember 2012. ' p em r 2014; People v. Yaddao, G.R. Nos. 162144-
67
Rules of Court, Rule 112, Section 5 (a)
..
68
io
De Lima v. Guerrero, G.R. No. 22978l, October 2017
People v. Andrade, G ·R· No· 187000, 24 N ove m ber 2014.·
•
RULE 112 157
PRELIMJNARY INVFSTIGATION
The rule provides that once the information has been filed, the judge
shall then "personally evaluate the resolution of the prosecutor and its
supporting evidence" to determine whether there is probable cause to issue
a warrant of arrest. "The task of the presiding judge when the Information
is filed with the court is first and foremost to determine the existence or
non-existence of probable cause for the arrest of the accused." 70 Thus, to
move the court to conduct a judicial determination of probable cause is
a mere superfluity, for with or without such motion, the judge is duty-
bound to personally evaluate the resolution of the public prosecutor and
the supporting evidence.71 Moreover, under the Revised Guidelines for
Continuous Trial of Criminal Cases, such motions for judicial determination
of probable cause is a prohibited motion.n
PERSONAL EXAMINATION
The judicial determination of probable cause made by the judge is a
personal examination, as described in jurisprudence:
The judicial determination of probable cause, on the other
hand, is one made by the judge to ascertain whether a warrant
of arrest should be issued against the accused. The judge must
satisfy himself that based on the evidence submitted, there is
necessity for placing the accused under custody in order not to
frustrate the ends of justice. If the judge finds no probable cause,
the judge cannot be forced to issue the arrest warrant. 73
Probable cause for the purposes of issuing a warrant of arrest" pertains
to facts and circumstances which would lead a reasonably discreet and
prudent person to believe that an offense has been committed by the
person sought to be arrested." 74 "[T[he standard used for the issuance of a
warrant of arrest is less stringent than that used for establishing the guilt
of the accused. As long as the evidence presented shows a prima facie case
against the accused, the trial court judge has sufficient ground to issue a
warrant of arrest against him." 75
An important distinction should be made between probable cause for
the purpose of determining whether a warrant of arrest should be issued
,0 Baltazar v. People, G .R. No. 174016, 28 July 2008.
n Leviste v. Alameda, G.R. No. 182677, 03 August 2010.
n Revised Guidelines for Continuous Trial of Crimina l Cases, A.M. N o. 15-06-10-SC,
IIl.2.b.i.
73 People v. Castillo, G .R. No. 171188, 19 June 2009; People v. Court of Appeals, G.R. N o.
126005, 21 Janu ary 1999; Ho v. People, G.R. No. 106632, 09 October 1997.
74
75
De Joya v. Marquez, G .R. No. 162416, 31 January 2006.
De Joya v. Marquez, G.R. No. 162416, 31 January 2006.
 158 CRIMINAL PROCEDURE
which known as judicial determination, and probable cause for t~e p_urpose
. an 1'nforma t'10n, w hich 1·s known as executive determmahon (by
of fil mg
I
the prosecutor).
Three important matters regarding judicial determination of p~obab!e
cause for the purpose of issuing a warrant of arrest was synthesized m
People v. Court of Appeals, citing Ho v. People:
First, as held in Inting, the determination of probable ca1;1se
by the prosecutor is for the purpose different from that which
is to be made by the judge. Whether there is reasonable ground
to believe that the accused is guilty of the offense charged and
should be held for trial is what the prosecutor passes upon. The
judge, on the other hand, determines whether a warrant of
arrest should be issued against the accused, i.e., whether there
is a necessity for placing him under immediate custody in order
not to frustrate the ends of justice. Thus, even if both should base
their findings on one and the same proceedings or evidence,
there should be no confusion as to their distinct objectives.
Second, since their objectives are different, the judge cannot
rely solely on the report of the prosecutor in finding probable
cause to justify the issuance of a warrant of arrest. Obviously
and understandably, the contents of the prosecutors report will
support his own conclusion that there is reason to charge the
accused of an offense and hold him for trial. However, the judge
must decide independently. Hence, he must have supporting
evidence, other than the prosecutors bare report upon which to
legally sustain his own findings on the existence or non-existence
of probable cause to issue an arrest order. This responsibility of
determining personally and independently the existence of non-
existence of probable cause is lodge in him by no less than the
most basic law of the land. Parenthetically, the prosecutor could
ease the burden of the judge and speed up the litigation process
by forwarding to the latter not only the information and his bare
resolution, but also so much of the records and the evidence on
hand as to enable His Honor to make his personal and separate
judicial finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete or entire records
of the case during the preliminary investigation be submitted
to and examined by the judge. We do not intend to unduly
burden trial courts by obliging them to examine the complete
records of every case all the time simply for the purpose of
ordering the arrest of the accused. What is required, rather, is
RULE112 159
PRELIMINARY INVESTIGATION
that the i'udge mus thave suffi . . documents (such
th c1ent supporting
as ~ complaint, affidavits, counter-affidavits, sworn statements
of ~itnesses or transcript of stenographic notes, if any) upon
which to _make his independent judgment, or at the very least,
u~on which to verify the findings of the prosecutor as to the
exi~tence of probable cause. The point is: he cannot rely solely and
entirely _on_the i:irosecutors' recommendation, as the Respondent
Court did_m this case. Although the prosecutor enjoys the legal
presu_mphon of regularity in the performance of his duties and
functions which in turn gives his report the presumption of
accuracy, the Constitution, we repeat, commands the judge to
personally determine probable cause in the issuance of warrants
of arrest. This Court has consistently held that a judge fails in
his bounden duty if he relies merely on the certification or the
report of the investigating officer.76 (Emphasis supplied; citations
omitted.)
PROBABLE CAUSE HEARING
Ocampo v. Abando77 clarifies that a hearing to determine probable cause is
not mandatory for a judge to issue a warrant of arrest; a personal evaluation
of the prosecutor's report and supporting documents shall be sufficient:
Probable cause for the issuance of a warrant of arrest has
been defined as 'such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested.'
Although the Constitution provides that probable cause shall be
determined by the judge after an examination under oath or an
affirmation of the complainant and the witnesses, we have ruled
that a hearing is not necessary for the determination thereof. In
fact, the judge's personal examination of the complainant and the
witnesses is not mandatory and indispensable for determining
the aptness of issuing a warrant of arrest.
It is enough that the judge personally evaluates the
prosecutor's report and supporting documents showing the
existence of probable cause for the indictment and, on the
basis thereof, issue a warrant of arrest; or if, on the basis of
his evaluation, he finds no probable cause, to disregard the
76 People v. Court of Appeals, G.R. No. 126005,_21 January 1999, citing Ho v. People, G.R.
No. 1066.32, 09 October 1997; People v. I11 hng, G.R. No. 88919, 25 July 1990; See also
Okabe v. Gutierrez, 27 May 2004.
77 Ocampo v. Abando, G.R. No. 176830, 11 February 2014.
 CRIMINAL PROCEDURE
160
. he submission of additional
prosecutor's resolution and_req~ire_t d t mining its existence.
affidavits of witnesses to aid him 10 e er
(Emphasis and underscoring supplied.)
DISMISSAL OF CASE FOR FAILURE TO ESTABLISH PROBABLE C AUSE
. · the case outright
If theJ'udge finds no probable cause, he may d isrnis; h. t
. rrest warrant In sue ms ance,
and the judge cannot be forced to issue an a . . . . eal the
Cajipe v. People79 states two (2) possible remedies: first is to app
decision, and second, is to refile the case:
The RTC judge was within his powers to dismiss the
case against petitioner HPG officers. Section 6, Rule 112 of the
Rules of Criminal Procedure provides that the judge "may
immediately dismiss the case if the evidence on record cle~ly
fails to establish probable cause." The CA should ha~e d~rued
the People's petition for special civil action of certior~n that
assails the correctness of the order of dismissal since Section 1 of
Rule 65 provides that such action is available only when ''. there
is no appeal, or any plain, speedy, and adequate remedy m the
ordinary course of law."
The fact, however, is that Section 1, Rule 122 of the same
rules provides that an appeal may be taken in a criminal action
from a judgment or final order like the RTC's order dismissing
the case against petitioner HPG officers for lack of probable
cause. It is a final order since it disposes of the case, terminates
the proceedings, and leaves the court with nothing further to
do with respect to the case against petitioner HPG officers. The
Court had made a similar pronouncement in Santos v . Orda, Jr. Of
course, the People may refile the case if new evidence adduced
in another preliminary investigation will support the filing of
a new information against them. But that is another matter. For
now, the CA clearly erred in not denying the petition for being a
wrong remedy.80 (Emphasis and underscoring supplied.)
ORDER TO PRESENT ADDITIONAL EVIDENCE
The option of the court to order the prosecutor to present additional
evidence is not mandatory. The trial court's first option under the above
is for it to "immediately dismiss the case if the evidence on record clearly
78
,. Pe<JJ:le v. Court of Appeals, C .R. No. 126005, 21 January 1999.
Ca11pe v. People, G.R. No. 203605, 23 April 2014.
80
Cajipe v. Peaple, G.R. No. 203605, 23 April 2014.
161
RULE 112
PRELIMINARY INVESTIGATION
fails to establish probable cause." 81 Therefore, "it is only ' in case of doubt
on the existence of probable cause' that the judge may order the prosecutor
to present additional evidence within five (5) days from notice." 82
W HEN WARRANT OF ARREST Nor NECESSARY
' According to paragraph (c) of this rule, a warrant of arrest is not
necessary if the accused is already under detention pursuant to a warrant
issued by the municipal trial court in accordance with paragraph (b) of this
section, or if the complaint or information was filed pursuant to inquest
proceedings, or is for an offense penalized by fine only. The court shall
then proceed in the exercise of its original jurisdiction.
Section 6. When accused lawfully arrested without warrant. - When a
person is lawfully arrested without a warrant involving an offense which
requires a preliminary investigation, the complaint or information may
be filed by a prosecutor without need of such investigation provided
an inquest has been conducted in accordance with existing rules. In the
absence or unavailability of an inquest prosecutor, the complaint may
be filed by the offended party or a peace officer directly with the proper
court on the basis of the affidavit of the offended party or arresting
officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this Rule, but
he must sign a waiver of the provision of Article 125 of the Revised Penal
Code, as amended, in the presence of his counsel. Notwithstanding the
waiver, he may apply for bail and the investigation must be terminated
within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule.
PURPOSE OF INQUEST
A preliminary investigation is required 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 fine.83 As an exception, the rules provide that there is no need for a
81 People v. Yaddao, C .R. N os. 162144-54, 13 November 2012.
82 People v. Yaddao, C.R. Nos. 162144-54, 13 November 2012.
83 Rules of Court, Rule 112, Section 1.
 CRIMINAL PROCEDURE
162
. f ful arrest without a warrantll'
preliminary investigation m cases O a Iaw . st where available, has
involving such type of offense, so long as an mque '
been conducted.
Inquest is defined in jurisprudence as "an informal and ~umml~
· t in criminal cases mvo vmg
investigation conducted by a pubhc prosecu or f
persons arrested and detained without the benefit of a warr~t O arreSt
issued by the court for the purpose of determining whether sa_id perso,~
should remain under custody and correspondingly be charged m court.
Thus the end result of inquest is generally either the filing of an
I ~M
information in court or the release of the arrested person. oreover,
"[t]he rules on inquest do not provide for a motion for reconsideration."
87
The release of the arrested person does not necessarily mean ~at th~re will
be no further proceedings, as "[i]n case the inquest proceedings yield no
probable cause, the private complainant may pursue the case through the
regular course of a preliminary investigation." 88
Strictly speaking, inquest only applies in cases where there is a
warrantless arrest, and the offense requires a preliminary investigation.
Otherwise, the case shall be filed directly in court. In those cases which do
not require preliminary investigation and the person was arrested without
a warrant, the person arrested would be immediately detained. The option
of the person detained would then be to apply for bail, as at that point there
is already a deprivation of his liberty.
INQUEST PROCEEDINGS
Commencement of Proceedings
Inquest shall be considered commenced upon receipt by the Inquest
Officer from the law enforcement authorities of the complaint/referral
documents, which shall include the affidavit of arrest, the investigation
report, the statement of the complainant and witnesses; and other supporting
evidence gathered by the police in the course of the latter's investigation of
the criminal incident involving the arrested or detained person.89
..
85
Rules of Court, Rule 113, Section 5(a), S(b) .
Leviste v. Alam~da, G.R. No. 182677, 03 August 2010, citing New Rules on In uest, OOJ
De~artment Circular No. 61 {September 21, 1993), Section 1.
. ulG.R. No. 182677, 03 August 2010, a·n·ng N ew Ru Ies on Inques t, OOJ
Lev,ste v. Alameda,
De~artment C ire ar No. 61 (September 21, 1993), Sections 13, 15.
., Lev1ste v. Alameda, G.R. No. 182677, 03 August 2010
88
Leviste v. Alameda, G.R. No. 182677, 03 August 2010·
89
New Rules on Inquest, DOJ Department Circular N. 61
3. o. , September 21, 1993, Section
RULE112 163
PRELIMINARY INVESTIGATION
Initial Duty of the Inquest Officer
The initial duty of the inquest officer is to determine, based on the
complaint/referral documents submitted by the arresting officers, if the
arrest of the detained person was made "in accordance with the provisions
of paragraphs (a) and (b) of Section 5, Rule 113[,]" or the rules on valid
warrantless arrest.9() This is so because "inquest proceedings are proper
l
only when the accused has been lawfully arrested without warrant." 91
If the Warrantless Arrest is Invalid: Release, or Release with Subpoena/Notice of
Preliminary Investigation
If the arrest was not properly effected or the evidence on hand warrant
the conduct of preliminary investigation, the inquest officer should proceed
under Section 9 of the New Rules on lnquest92 which provides:
Sec. 9. Where Arrest Not Properly Effected. - Should the
Inquest Officer find that the arrest was not made in accordance
with the Rules, he shall:
a) recommend the release of the person arrested or
detained;
b) note down the disposition on the referral document;
c) prepare a brief memorandum indicating the reasons
for the action taken; and
d) forward the same, together with the record of the case,
to the City or Provincial Prosecutor for appropriate action.
Where the recommendation for the release of the detained
person is approved by the City or Provincial Prosecutor but the
evidence on hand warrant the conduct of a regular preliminary
investigation, the order of release shall be served on the
officer having custody of said detainee and shall direct the
said officer to serve upon the detainee the subpoena or notice
of preliminary investigation, together with the copies of the
charge sheet or complaint, affidavit or sworn statements of the
complainant and his witnesses and other supporting evidence.93
q
90 New Rules on Inquest, OOJ Department Circular No. 61, September 21, 1993, Section
91
8.
Lad/ad v. Velasco, G.R. Nos. 172070-72, 1 June 2007; Rules of Court, Rule 112, Section 6 .
., New Rules on Inquest, OOJ Department C~ular No. 61, September 21, 1993.
. 93 New Rules on Inquest, OOJ Department Circular No. 61, September 21, 1993, Section
9.
 RULE112 165
CRIMINAL PROCEDURE
164 PRELIMINARY INVESTIGATION

. . ry Investigation or Proceed Finding of Lack or Existence ofProbable Cause

• Tl / "d• A ail 0 r Pre11mrna
If the Warrantless Arrest zs va1 • v ~
Probable cause in the New Rules on Inquest is defined as "when the
to Inquest Proper
evidence submitted to the Inquest Officer engenders a well-founded belief
Avail of Preliminary Investigation that a crime has been committed and that the arrested or detained person
. "d Section 10 of the New Ru1es on is probably guilty thereof." 97
If the warrantless ~ st is vali ~hall be asked whether he wishes to
Inq~est state t~a! the d~taine_d p~rso~ he chooses to do, he must execute, If the inquest officer, in the conduct of the inquest proper, finds
avail of a prehrrunary investigation. sible erson of his choice, probable cause, he shall prepare the complaint/ information and

a waiver of the pro~isions of Artie e,,

t
with the assistance o~ _a lawyer 0 ~ ~~i:~ the rfevised Penal Code.94
waiver b a person arrested
According to Republic Act No. 7438, ~a]ny f th
or detained under the provisions of Article 125 o e ehvis
fr ·
ed Penal Code
f hi
. d b uch person in t e presence o s
[... ] shall be in writing and signe y s .d d f no effect " 95
counsel; otherwise, the waiver shall be null and vm ~ 0 . . ·
This preliminary investigation availed of shall be terminated within 15
days from inception.
Inquest Proper
If the option for preliminary investigation is n~t av~iled of, the
proceedings now move to the inquest proper as stated ~ Section 11 of the
New Rules on Inquest, where the inquest prosecutor examines ~he sta~ement
or affidavit of the complainants and witness, and other supporting evidence,
and in an informal and summary proceeding, determines whether or not
there is probable cause for the filing of an information.
The submission of counter-affidavits in inquest proceedings is
not allowed, unless the detailed person avails of the option to avail of a
preliminary investigation, waiving the provisions on Article 125 of the
Revised Penal Code, because in such cases, the proceedings are converted
to a regular preliminary investigation.96
Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The
penalties provided in the next preceding article shall be imposed upon the public
officer or employee who shall detain any person for some legal ground and shall fail
to deliver such person to the proper judicial authorities within the period of; twelve
(12) hours, for crimes or offenses punishable by light penalties, or their equivalent;
eighteen (18) hours, for crimes or offenses punishable by correctional penalties,
or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by
afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his deten-
tion and shall be allowed upon his request, to communicate and confer at any time
with his attorney or counsel.
..
95 RA No. 7438, Section 2(e).
AO No. 407, Office of the President, 26 June 1998.
recommend the filing thereof to the prosecutor for filing thereof, which
may be done by the inquest prosecutor or another prosecutor to whom
the case is assigned.98
R EMEDIES A FTER INQUEST
A person arrested without a warrant, after the conduct of an inquest,
has the following remedies: request for a preliminary investigation, either
before or after the filing of the information, or apply for bail. No Motion
for Reconsideration, nor Petition for Review of the resolution of inquest
prosecutor is allowed in the rules, although a Petition for Review may be
available after availing of a preliminary investigation or reinvestigation.99
In such cases, one may either avail of the remedies earlier mentioned or
proceed to trial. These available remedies are summarized in Leviste v.
Alameda:100
BEFORE TIIE FILING OF COMPLAINT OR INFOR-
MATION IN COURT, the private complainant may proceed
in coordinating with the arresting officer and the inquest
officer during the latter's conduct of inquest. Meanwhile, the
arrested person has the option to avail of a 15-day preliminary
investigation. provided he duly signs a waiver of any objection
against delay in his delivery to the proper judicial authorities
under Article 125 of the Revised Penal Code. For obvious
reasons, this remedy is not available to the private complainant ,
since he cannot waive what he does not have. The benefit of the
provisions of Article 125, which requires the filing of a complaint
or information with the proper judicial authorities within the
applicable period, belongs to the arrested person.
"' New Rules on Inquest, OOJ Department Circular No. 61, September 21. 1993, Section
12.
98 New Rules on Inquest, OOJ Department Circular No. 61, September 21, 1993, Section
13.
99
100
Leviste v. Alameda, G.R. No. 182677, 03 August 2010.
Leviste v. Alameda, G.R. No. 182677, 03 August 2010.
 166 CRIMINAL PROCEDURE
The accelerated process of inquest, owing_ to its s~mmary
nature and the attendant risk of running against Article 125,
ends with either the prompt filing of an information in court or
the immediate release of the arrested person. Notably, the rules
on inquest do not provide for a motion for reconsideration.
Contrary to petitioner's position that private complainant
should have a1wealed to the DOT Secretary. such remedy is not
immediately available in cases subject of inquest.
'I Noteworthy is the proviso that the appeal to the DOJ
fl Secretary is by 'petition by a proper party under such rules as
I ~que~t pr~eedm~s and the accused failed to participate in the preliminary
the Department of Justice may prescribe.' The rule referred to is
I, the 2000 National Prosecution Service Rule on Appeal, Section
1 of which provides that the Rule shall 'apply to appeals from
Ii resolutions xxx in cases subject of preliminary investigation/
reinvestigation.' In cases subject of inquest, therefore, the
II private party should first avail of a preliminary investigation
or reinvestigation, if any, before elevating the matter to the
DOJ Secretary.
I In case the inquest proceedings yield no probable cause, the
private complainant may pursue the case through the regular
course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED
IN COURT, the rules yet provide the accused with another
opportunity to ask for a preliminary investigation within five
days from the time he learns of its filing. The Rules of Court
and the New Rules on Inquest are silent, however, on whether
the private complainant could invoke, as respondent heirs of
the victim did in the present case, a similar right to ask for a
reinvestigation. (Emphasis and underscoring supplied.)
Request for Preliminary Investigation
The person arrested without a warrant, for an offense requiring
preliminary investigation, can request for preliminary investigation in two
(2) instances.
First, according to the second paragraph of Section 6 of Rule 112,
before the ~ling of c~mplaint or info~~on in_ court, the arrested person
has the option to avail of a 15-day prelurunary mvestigation, provided he
duly signs a waiver of any objection against delay in his delivery to the
proper judicial authorities under Article 125 of the Revised Penal Code.
Second, according to the third paragraph of Section 6 of Rule 112 after
the filing of the complaint or information in court without a prelirrrinary
RULE 112 167
PRELIMINARY INVESTIGATION
investiga~on, _t~e accused may, within five (5) days from the time he
I~~ of it~ filmg, ask for a preliminary investigation. This period for
~!mg a ~otion for preliminary investigation after an information has been
filed aga':Il5t an accused who was arrested without a warrant has been
char~cterized as_mandatory by the Court, as such a motion filed beyond
the five~day pe~o~ should no longer be entertained.101 Moreover, under t
the Revised Gu1delmes for Continuous Trial of Criminal Cases a "motion
for . pre!i~nary investigation filed beyond the five-day re~lementary
penod m mque~t proceedings under Sec. 6, Rule 112 [...), or allowed in
mvestigation despite due notice" is a prohibited motion.102
Bail After Inquest
Owing to the summary nature of proceedings in inquest bail is not
available ~uring the conduct of the same. Once, however, the ~roceedings
have termmated and the inquest officer has determined the lawfulness of
the arrest, the person affected may apply for bail.
Moreover, "[a] person lawfully arrested and detained but who has not
yet ~en formally ~harged in court, can seek provisional release through
the_ filmg of~ application for bail. He need not wait for a formal complaint
or information to be filed since bail is available to all persons where the
offense is bailable."103 Thus, the last sentence of the second paragraph of
Section 6~ ~ule 112 provides that the arrested person may apply for bail
after availmg of the option for a preliminary investigation, after waiver
of his right under Article 125 of the Revised Penal Code. Further, under
Section 17(b), Rule 113, "[a]ny person in custody who is not yet charged in
court may apply for bail with any court in the province, city, or municipality
where he is held."
ABSENCE OR UNAVAILABILITY OF INQUEST PROSECUTOR
The rules provide that in the absence or unavailability of an inquest
prosecutor, the case may be filed directly in court by the offended party or
peace officer, thus dispensing with the inquest proceedings. This situation
101
People v. Court ofAppeals, G.R. No. 116623, 23 March 1995.
102
Revised Guidelines for Continuous Trial of Criminal Cases, AM. No. 15-06-10-SC,
Ill.2.b.ii.
100 Paderanga v. Court of Appeals, 317 Phil. 862 (1995); Ruiz v. Beldia, A.M. No. RlJ-02-
1731, 16 February 2005. See also A.M. No. 03-8-02-SC, Re: Guidelines on the Selection
and Appointment of Executive Judges and Defining Their Powers, Prerogatives and
Duties, Chapter V, Section 6, where a special raffle is held " in petitions for the writ
of habeas corpus, applications for bail in cases where the complaint or information has
not yet been filed with the court."

CRIMINAL PROCEDURE
168
many public prosecutors
is very rare in chartered cities since th ere are
I assigned in these areas.
ti the information or complaint.
Section 7. Records. - (a) Re.cords supp_or ng h 11 be supported by
- An information or complamt filed m court .s a d their witnesses
the affidavits and counter-affidavits of the parties an ti on th;
together with the other supporting evidence and the reso1u on
case.
(b) Record of preliminary investigation. - The record of the prelimin-;?'
investigation conducted by a prosecutor or other officers as may e
authorized by law shall not form part of the record of the case. Howev;;,
the court, on its own initiative or on motion of any p~, may order! e
production of the record or any of its partwhe~ n~cessary_m the resolution
of the case or any incident therein, or when it 1s to be introduced as an
evidence in the case by the requesting party.
PRELIMINARY INVESTIGATION RECORDS FORWARDED TO THE COURT
Records in support of the information o~ complaint,. sue~ as the
affidavits and counter-affidavits of the parties and th~rr witnesseS,
together with the other supporting evidence and the resolution ?f the case,
are generally not forwarded to the court. These d~uments_ if ele~ate~
upon order of the court, may be considered by the tnal court Judge m his
determination of probable cause for the issuance of a warrant of arrest.
Commenting on this provision of the rules, jurisprudence has added
that:
If the judge is able to determine the existence or ~on-
existence of probable cause on the basis of the records subnutted
by the investigating prosecutor, there would no longer be a l warrant of arrest, or a commitment order if the accused had already been
need to order the elevation of the rest of the records of the
case. However, if the judge finds the records and/ or evidence
submitted by the investigating prosecutor to be insufficient, he
may order the dismissal of.the case, o~ direct the investi~ating
prosecutor either to submit more evidence or to submit the
entire records of the preliminary investigation, to enable him to
discharge his duty. The judge may even call the complainant and
his witness to themselves answer the court's probing questions
to determine the existence of probable cause.104
1 °' Okabe v. Judge Gutierrez, G.R. No. 150185, 27 May 2004.
RULE 112 169
PRELIMJNARY INVESTIGATION
R ECORD OF P RELIMINARY I NVESTIGATION G ENERALLY N oT P ART OF THE R ECORD OF
THE C ASE
U_nde~ this rule, the records of the preliminary investigation, including
the aff1dav1ts and counter-affidavits, are generally not part of the record of
the case. As an exception, upon motion of any party, said records or a part
ther~of _may be pr~duced "when necessary in the resolution of the case or
any incident therein, or when it is to be introduced as an evidence in the
case by the requesting party."
Section 8. Cases not requiring a preliminary investigation nor covered IJy the
Rule on Summary Procedure. - (a) Iffiled with the prosecutor. - If the complaint
is filed directly with the prosecutor involving an offense punishable by
imprisonment of less than four (4) years, two (2) months and one (1) day,
the procedure outlined in section 3(a) of this Rule shall be observed.
The prosecutor shall act on the complaint based on the affidavits and
other supporting documents submitted by the complainant within ten
(10) days from its filing.
(b) If filed with the Municipal Trial Court. - If the complaint or
information is filed with the Municipal Trial Court or Municipal Circuit
Trial Court for an offense covered by this section, the procedure in
section 3(a) of this Rule shall be observed. If within ten (10) days after the
filing of the complaint or information, the judge finds no probable cause
after personally evaluating the evidence, or after personally examining
in writing and under oath the complainant and his witnesses in the form
of searching questions and answers, he shall dismiss the same. He may,
however, require the submission of additional evidence, within ten (10)
days from notice, to determine further the existence of probable cause. If
the judge still finds no probable cause despite the additional evidence,
he shall, within ten (10) days from its submission or expiration of said
· period, dismiss the case. When he finds probable cause, he shall issue a
arrested, and hold him for trial. However, if the judge is satisfied that
there is no necessity for placing the accused under custody, he may issue
summons instead of a warrant of arrest.
C ASES NOT R EQUIRING PRELIMINARY INVESTIGATION BUT FILED WTTH THE P ROSECUTOR
For cases requiring a preliminary investigation, the applicable rule
is Section 5 of Rule 112. Cases where the offense charged is punishable by
imprisonment of less than four (4) years, two (2) months and one (1) day
are cognizable by the municipal trial courts and preliminary investigation
is not mandatory.1(15
os
1 Borlo,igan, Jr. v. Pea, G.R. No. 143591, 23 November 2007.
170 CRIMINAL PROCEDURE RULE112 171
PRELIMINARY INVESTIGATION

. . liminary investigation, upon the filing CASES COVERED BY THE RULE ON SUMMARY P ROCEDURE
For cases not requ1:1"mg_ pre hall take the appropriate
of the complaint and affidavit, the prosecutor s_ d nts submitted Generally, the instances referred to as falling under the Revised Rule
action based o~ the affidavits ~d othe~ su~porting o~~~; if he does not on Su~ill;' Procedure are those offenses punishable by a penalty not
by the complamant. He may either a) dismiss the comp h inf f1 if exceeding six (6) months.109
see sufficient reason to proceed with the case, orb) file~ e orma ?n
he finds probable cause.106 While probable cause should fir~t be deter~ne~ For complaints or information filed directly before the first level courts
before an information may be filed in court, the prosec_utor_is not man ate under Section 11110 of the Revised Rule on Summary Procedure Section
to require the respondent to submit his counter-affidavit to oppose the ·
13111 0 f ~he same provides . '
that the court has two options: a) to set the case
complaint.107 The prosecutor cannot be faulted fo~ rE:lying merely on t~e for ~aignment ~d trial if it finds "cause or ground to hold the accused
complaint-affidavit without requiring the submission of respondent s for trial, or to b) dismiss the case, if it finds no such cause or ground. In the
counter-affidavit.108 case of those commenced by information, the court shall issue an order
requiring the accused to submit his counter-affidavit and the affidavit of
CASES NOT REQUIRING PRELIMINARY INVESTIGATION AND NoT COVERED BY T HE his ~i"tnesses.112 Fo~ those commenced by complaint, the court may on the
RULE ON SUMMARY PROCEDURE basis ?f the complamt and supporting evidence, " dismiss the case outright
The instances referred to in this section of the rules apply to cases for being patent~y wi~o~t basis or merit[,)" and if not dismissed outright,
the court shall likewise issue an order requiring evidence, affidavits and
which are punishable by a penalty less than four (4~ years, ~~ (2)
counter-affidavits from both parties,113
months and one (1) day, but more than six (6) months. Smee prehmmary
investigation is not required, the complaint may be directly filed with the In su~ary Procedure, the warrant of arrest is generally not issued,
first level court. except for failure to appear whenever required.114 "
If the complaint is directly filed with the first level court, the rule
requires the judge to examine whether probable cause exists _t~ ho~d
respondent for trial. The judge does this by personally exanurung m
writing and under oath the complainant and his witnesses in the form
of searching questions and answers. He may require the submission of
additional evidence, within 10 days from notice, to determine further the
existence of probable cause.
However, what is different here from cases where preliminary
investigation is required are the options of the judge. Under this rule, he
has three (3) options: a) if he finds probable cause, he shall issue a warrant
of arrest, or a commitment order if the accused had already been arrested,
and hold him for trial; b) if he finds no probable cause, he shall dismiss the
case; or c) if he is satisfied that even if there is probable cause, there is no
necessity for placing the accused under custody, he may issue summons
instead of a warrant of arrest.

109
Revised Rule on Summary Procedure, Section l.B.
110
Revised Rule on Summary Procedure, Section 11.
Ill
Revised Rule on Summary Procedure, Section 13.
106
Borlongan, Jr. v. Pea, G .R. No. 143591, 23 November 2007. 112 Revised Rule on Summary Procedure, Section 12(b).
107
Borlongan, Jr. v. Pea, G .R. No. 143591, 05 May 2010. 113 Revised Rule on Summary Procedure, Section 12(a).
108
Borlongan, Jr. v. Pea, G .R. No. 143591, 23 November 2007. 11,
Revised Rule on Summary Procedure, Section 16.