25 October 2021

Preliminary Investigation
Rule 112

Preliminary investigation – possibility that the complaint is true

Custodial investigation – determine whether there is a proper case and should filed for purpose of preliminary
investigation

Preliminary Investigation Custodial Investigation

An inquiry or proceeding to determine whether there Fact-finding by law enforcers whether complaint
is sufficient ground to engender a well-founded belief should be filed for purposes of PI
that a crime has been committed and the respondent is
probably guilty thereof and should be held for trial

Custodial Investigation
 It starts the moment the accused was arrested and brought to the police station.
 It is the stage where police investigation is no longer a general inquiry into an unsolved crime but has begun
to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that
elicits incriminating statements

Custodial Investigation Report

 A report in writing on the fact-finding inquiry conducted by the law enforcers, prepared by the investigation
officer and signed and thumb marked by the detained person after reading and explaining to him by his
counsel indicating whether the complaint should be filed for purposes of PI.

Is the PI an essential part of the information?

 No. As such, defect on it does not affect the INFORMATION.

Nature of the preliminary investigation

 It is not a constitutional right but a mere statutory personal right that may be waived.
 Thus, the person cannot be compelled to be present during the PI
 It is not part of the trial but an executive function. Hence, the dismissal during PI does not constitute double
jeopardy (executive process, public prosecutor)
 (Double jeopardy applies only to judicial processes)
 It covers all offences triable by RTC or MTC, if the penalty is at least 4 years, 2 months and 1 day
 Nevertheless, it is a substantial right, the denial of which deprive a person of his right to due process
 Inordinate delay in the conduct of PI is also violative of due process
 Must be invoked before plea or else it is deemed waived
 There is a presumption of regularity that the prosecutor has conducted the requisites PI
 The one who claims otherwise must prove it

Preventive measure (remedies) when accused is denied of PI

 Refuse to enter a plea and to the continuation of further proceedings
 Move for an investigation or reinvestigation, if the court already acquired jurisdiction

Officers authorized to conduct PI

 Province/City Prosecutors and their Assistants (deputy city prosecutor, assistant provincial prosecutor,
assistant city prosecutor, etc.)
 Judges of MTC, except in MM and chartered cities
 National/regional state prosecutors
 COMELEC, on criminal violations of election laws
 Lawyers designated as special prosecutors under the Administrative Code
 Special Prosecutors of Ombudsman, on cases before the Sandiganbayan
 PCGG, on active and retired members of AFP for violation of RA 3019 and 1379 dealing with recovery of ill-
gotten wealth of Marcos, his family and cronies
Procedure of PI
1. Filing of complaint
2. Initial action of investigating officer
3. Submission of counter-affidavits
4. Clarificatory hearing
5. Resolution by prosecutors

Contents of the Resolution of PI

1. That the prosecutor personally examined the complainant and witnesses
2. That there is reasonable ground to believe that a crime has been committed
3. That the accused is probably guilty thereof
4. That the accused was given an opportunity to controvert

Prosecutor
Resolution
To be forwarded with in 5 days from rendering it together with records of the case
Chief Prosecutor
Affirm or dismiss within 10 days from receipt
If affirmed, he must indicate his written authority/approval
If dismissal, the proceeding is terminated
If the resolution is dismissal but it is disapproved by Chief Prosecutor, the latter may either:
1. File the information or;
2. Direct another to file it without any further PI
DOJ Secretary
Petition for Review
Arraignment is suspended for 60 days during the pendency of petition for review with the DOJ Secretary
President
Appeal if penalty is death, life imprisonment of reclusion perpetua

Absence of counsel during the PI

 It does not go into the jurisdiction of the court, hence, such irregularity must be properly raised before
trial so that the court can remand the case to the prosecutor for purposes of reinvestigation
 Nevertheless, an uncounseled confession during PI is inadmissible in evidences

PI in warrantless arrests
 A person arrested in flagrante delicto can ask for PI before the filing of C/I in court.
 But he must sign a waiver of the provisions of Art. 125 RPC in the presence of his counsel, although he
can apply for bail by this time.
 Refusal to sign said waiver would allow the prosecutor or the offended party/peace officer can directly
file

Art. 125
Delay in the delivery of detained persons
12 hours – light felonies (Imprisonment not exceeding 6 months)
Make sure to put on record the exact time you or your relative was arrested
18 hours – correccional penalties (6 months and 1 day up to 6 years)
36 hours – afflictive or capital penalties (6 years to 12 years or 12 years to death)
(Go to barangay and report exact time if not stated in the report of the police)

Inquest
 It has the same feature as Custodial/Criminal Investigation, except that the determination in here is
whether or not to file a case in court
 The purpose of inquest is to determine whether to detain the person arrested or to release for a PI
 Only those arrested in flagrante delicto can be subject of inquest
 Only those offenses requiring PI shall undergo INQUEST

Are the records of the PI part of the court records?

Rule:
Records during the PI are not part of the record of the case in court, hence, need not be offered in
evidence.
Exception:
1. Evidence submitted by parties
2. Affidavits and counter-affidavits
3. Resolution of prosecutor recommending the filing of case

Are the modes of discovery available during PI (Rule 116)

No.
The respondent is not entitled thereto because the modes of discovery under Rule 116 are applicable only
after the filing of the information to assist the accused in making an intelligent plea and prepare himself
for trial.

ARREST
Rule 113

It is the taking of a person into custody in order that he may be bound to answer the commission of an
offence

Warrant of Arrest
A judicial writ or order authorizing the arrest of a person

Requirement
It should particularly describe the name or the person to be arrested

Void Warrants of Arrests:

John Doe warrant, unless there is further description of the person as will justify an officer to act under it

Blank warrant

Issuance of Warrant of Arrest

Illustrative case
After several weeks of close monitoring and surveillance, the PNP Bacolod eventually decided to set-up a buy-
bust operation against DAXTON and DESMUND who are the notorious drug lords in Negros Occidental.

The operation resulted in the arrest of DAXTON and the recovery of 10 tons of shabu. However, DESMUND
managed to evade arrest.

While DAXTON was undergoing inquest proceeding, PNP Bacolod Cief Donald S. Penido filed a petition with
the RTC Bacolod for the issuance of a warrant of arrest against escapee DESMUND, citing the magnitude of his
offence and his clout.

If you were the judge, how would you decide on the petition?

Answer:
After the case have already been filed in court, which means that the PI or inquest proceeding is already over

The issuance of warrant of arrest is discretionary on the judge as so provided in sec 2 art III or 1987 Constitution,
based on his personal evaluation of the resolution of the Public Prosecutor within 10 days from filing of the
complaint/information

The judge may require presentation of additional evidence

Still, if he finds no probable cause, he shall dismiss the case withing 30 days from the filing of
complaint/information

Cases when not necessary

1. Accused is already under detention due to a warrant of arrest issued by the MTC Judge conducting the PI
2. Complaint or information was filed pursuant to a lawful warrantless arrest
3. Offense punishable by fine only

Implementation of warrant of arrest

 It must be implemented within 10 days from receipt by the head of office to whom it was delivered

After the lapse of said period, he (head of office) must explain in writing to the issuing judge the reason
why it was executed

The warrant of arrest remains to be valid because it does not expire and is valid until the arrest is made, or
it is filed by the court

It is effected if there is an intention on the part of the arresting officer to physically restrain a person, and
an intention on the part of such person to submit himself to the custody of the arresting officer.

It may be effected on any day (even on a Saturday or Sunday), and at any time of the day or night. This is
so because public interest requires that criminals shall be given any concession to the prejudice of the
society.

Reasonable force may be used if necessary to effect the arrest

An officer making a lawful arrest (with or without warrant) may orally summon persons to assist him

A person assisting said officer becomes identified with the latter and anyone who inflicts harm on him
will be liable to indirect assault

An officer, not a private person, may break into premises where the person to be arrested is or reasonably
believed to be if he is refused admittance even though he already announced his authority and purpose

He can also break out from said premises if he himself is detained or captivated therein with the use of
necessary force for his liberation

Lawful Warrantless Arrests

1. In the presence, the person to be arrested has committed by overt act, is actually committing, or is
attempting to commit an offence
2. The offense has just been committed and he has probable cause to believe based on personal knowledge
of facts that the person to be arrested has committed it
3. The person to be arrested is an escapee
4. The accused who was released on bail attempts to leave the Philippines without court permission
5. Effected by bondsmen

Instances when the presence of probable cause is to be determined

1. By the Prosecutor (PI)
2. By the judge (issuance of warrant of arrest)
3. By arresting officer/private person (warrantless arrest)

Rights
1. Assistance by counsel at all times
2. To be informed of the following rights in a language known and understood by him
a. To remain silent
b. To have a competent and independent counsel preferably of his choice who shall be allowed to
confer privately with him at all times
3. To be served a copy of Custodial Investigation report valid taking of extrajudicial confession
4. Proper waiver of right under Art. 125 RPC
5. To be visited by immediate family members, counsel, NGO duly accredited by CHR