CRIMINAL PROCEDURE ATTY.

KAY AVILES
RULE 112 – PRELIMINARY INVESTIGATION

Section 1: Preliminary Investigation defined; 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.

For 4, 2, 1 cases a preliminary investigation is required to be conducted before filing a complaint or information.

Purposes of PRELIMINARY INVESTIGATION as to PROBABLE CAUSE

1. To identify if the probable cause is an EXECUTIVE FUNCTION
2. To identify if the probable cause is INQUISITORIAL IN NATURE
3. To identify if the probable cause is NOT A PART OF A TRIAL

Statutory Right of the Conduct of Preliminary Investigation

 Substantive right of having a preliminary investigation, not to deprive him of full measure of the due process.
 Its purpose is to secure the innocent against hasty, malicious and oppressive prosecution and to protect him
from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial.
 It also aims to protect the state from having to conduct useless and expensive trials.

OFFENSES PUNISHABLE BY PRELIMINARY INVESTIGATION

At least 4,2,1 Yes
Less than 4,2,1 No
Undergoing INQUEST PROCEEDINGS No
Section 6, Rule 112 (When accused Yes
lawfully arrested without warrant) /
Waiver of Article 125 RPC, (Delay in the
delivery of detained persons to the
proper judicial authorities)

Due Process
 In a preliminary investigation is laid out in jurisprudence as the right to be heard and be given reasonable
opportunity to submit evidence in one’s defense.

Absence or Irregularity or Preliminary Investigation

The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence.
Failure to invoke such right to preliminary investigation is a waiver of such right and any irregularity that attended it.

Prohibitions under RGCT of Criminal Cases as to REMANDING OF PRELIMINARY INVESTIGATION

 The motion is filed without prior leave of court
 When preliminary investigation is not required under Section 8, Rule 112
 When the regular preliminary investigation is required has been actually conducted, and the grounds relied
upon in the motion are not meritorious.

Probable Cause (as to FILING CRIMINAL INFORMATION)

- Whether there is (facts) sufficient ground to engender a well founded belief that a crime has been
committed and the (private) respondent is probably guilty thereof. It is such a state of facts in the mind
of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an
honest or strong suspicion that a thing is so.
Prosecution Officers Nature of Cases Jurisdictional Courts Supervising Authority
Criminal Cases
Involving National
Security & Criminal
Cases Whose Respective Juridical National Prosecution
Prosecution General
Venues Are Courts Services under DOJ.
Transferred To
Avoid Miscarriage
of Justice
Criminal Cases
Involving National
Security & Criminal
Cases Whose Respective Juridical National Prosecution
Deputy State Prosecutor
Venues Are Courts Services under DOJ.
Transferred To
Avoid Miscarriage
of Justice
Criminal Cases
Involving National
Security & Criminal
Cases Whose Respective Juridical National Prosecution
Assistant State Prosecutors
Venues Are Courts Services under DOJ.
Transferred To
Avoid Miscarriage
of Justice
Criminal Cases
Involving National
Security & Criminal
Cases Whose Respective Juridical National Prosecution
Prosecution Attorneys
Venues Are Courts Services under DOJ.
Transferred To
Avoid Miscarriage
of Justice
Criminal Cases
Involving National
Security & Criminal
Provincial or City Prosecutors Cases Whose Respective Juridical National Prosecution
& their assistants Venues Are Courts Services under DOJ.
Transferred To
Avoid Miscarriage
of Justice
Criminal cases
Special Prosecutor and his within the Office of the
Sandiganbayan
Prosecution Staff jurisdiction of Ombudsman
Sandiganbayan
Criminal cases
Office of the
within the
Ombudsman Investigators Sandiganbayan Ombudsman (Rules of
jurisdiction of
Procedure)
Sandiganbayan
Criminal cases
Office of the
within the
Deputized Prosecutors Sandiganbayan Ombudsman (Rules of
jurisdiction of
Procedure)
Sandiganbayan
Criminal cases
Office of the
Investigating Officials within the
Sandiganbayan Ombudsman (Rules of
Authorized by Law jurisdiction of
Procedure)
Sandiganbayan
Criminal cases
Office of the
Lawyers in Government within the
Sandiganbayan Ombudsman (Rules of
Services jurisdiction of
Procedure)
Sandiganbayan
 Four Instances in the REVISED RULES OF CRIMINAL PROCEDURE
i.e., probable cause as to likelihood & probability of guilt
 Section 1 & 3, Rule 112
 Section 6 & 9, Rule 112
 Section 5(b) , Rule 113
 Section 4, Rule 126

Section 2: Officers Authorized to Conduct Preliminary Investigations

The following may conduct Preliminary Investigations
1. Provincial or City Prosecutors and their assistants
2. National and Regional State Prosecutors
3. Other Officers as may be authorized by Law.
*** Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions.

Judges Are Not Authorized To Conduct Preliminary Investigation

Only JUDGES of METROPOLITAN TRIAL COURTS has authority to conduct preliminary investigation of alleged
crimes committed in their jurisdiction as Stated in Section 37: Preliminary Investigation of BP Blg. 129 also known as
The Judiciary Reorganization Act of 1980.
A.M. No. 05-8-26-SC, amends the RULE 112 & 114. Hence, MTC judges no longer authorized to conduct
preliminary investigation.

Effect of Preliminary Investigation Conducted Without Authority

The information is considered infirm and is a jurisdictional defect that cannot be cured. Information shall be
subject to motion to quash.

Section 3: Procedure
Overview of the Procedure

SCENARIOS PER P.I. CONSIDERATION REMARKS

Cases with PRELIMINARY INVESTIGATION Entirety of Section 3, Rule 112
Complaint Directly Filed to with the Prosecutor Section 3(a) only
w/out P.I.
Cases under Rule on Summary Procedure Section 3(a) only
*** P.I. only applies to cases with penalty of at least 4, 2, 1.

GENERAL PROCEDURE – SECTION 3, RULE 112

 Filing the Complaint or Complaint-Affidavits
 Issuance of Subpoena
 Filing of Counter Affidavit
 Optional Clarificatory Hearing
 Resolution of the Prosecutor

***For public crimes, the complaint need not be filed by the offended party, as it can be initiated by “any
competent person with knowledge of the act commuted by the offender which includes the witnesses.

***For private crimes, the provisions of Rule 110, Section 5. (Public of Private Prosecutor).

SECTION 3(A) Complaint-Affidavit / Complaint

***In the COMPLAINT-AFFIDAVIT, signatures of authorized persons shall be affixed, this must be an indication
that they’d certify and personally examined the affiants and they are satisfied that the affiants voluntarily
executed and understood their affidavits.
***Lack of an oath, is a mere formal defect, which does not affect the substantial rights of the defendant on the
merits.
***Proper officer, i.e., prosecutors or government official authorized to administer oaths, or in their absence and
unavailability, a notary public, should SWORN & SUBSCRIBED to the AFFIDAVITS.

SECTION 3(B) Action on the Complainr Affidavit (Dismiss or Subpoena)

***Within 10 days AFTER filing the complaint-affidavit, the investigating officer may opt to do 2 things. 1. DISMISS
THE COMPLAINT if he finds no ground to continue with the investigation, or 2. ISSUE A SUBPOENA to the
respondent.

***If the respondent cannot be subpoenaed, the Rule 112, Section 3(d) applies. In which the prosecutor is given
the authority to resolve the complaint. Since this provision does not require the receipt of the subpoena, the
reason for this is, TO PREVENT UNDERHANDED ATTEMPTS OF A RESPONDENT TO DELAY THE PROSECUTION OF
OFFENSES.

Right of Examination
For the purpose of P.I., SUBMITTED EVIDENCES, NEED NOT BE FURNISHED A PARTY (respondent), BUT THEY
SHALL BE AVAILABLE FOR EXAMINATION, COPYING, OR PHOTOGRAPHING AT THE EXPENSE OF THE REQUESTING
PARTY.

SECTION 3(C) Counter Affidavit

10 days from the receipt of the subpoena, the respondent is required to submit a counter. This counter-
affidavit should be subscribed and sworn in the same manner as the complaint affidavit. If in the event where there
is refusal and failure in submission, the INVESTIGATING OFFICE/OFFICER, shall resolve the complaint based on the
evidence presented, within the same period of time.

Reply Affidavit
This is a matter of discretion on the investigating prosecutor. Thus, “a complaint in a preliminary
investigation does not have a vested right to file a Reply – the right should be granted to him by law. No provision
under Rule 112 gives the COMPLAINANT OR THE PROSECUTOR to observe such right to reply to the counter-affidavit.

SECTION 3(D) Resolution of the Assistant Prosecutor

Inability to issue subpoena, failure or refusal of the respondent to file counter-affidavits, the INVESTIGATING
OFFICER shall resolve the complaint based on the evidence presented, within 10 DAYS.

SECTION 3(E) Optional Clarificatory Hearing

The investigating officer may set hearing if there are facts and issues to be clarified upon on the party or the
witness. Clarificatory questions are an important component of a preliminary investigation. The hearing shall be held
within 10 days from the submission of counter affidavit, and shall be terminated within 5 days. In the event where
the said hearing is not conducted, it is safe to assume that, “at the point the investigating prosecutor believed that
there were no more matters for clarification.”

SECTION 3(F) Determination of the Prosecutor

Within 10 days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold respondent for trial.

Section 4: Resolution of Investigating Prosecutor and its Review

Investigating Prosecutor’s Recommendation

If the prosecutor finds probable cause, he shall prepare the recommended resolution and information. On
the other hand, the investigating officer finds no probably cause; he shall recommend the dismissal of the complaint.
Within 5 days of his resolution, the investigation officer shall forward whatever the result to the pertinent reviewing
prosecutor. They shall act within 10 days from the receipt thereof and inform both parties.

Action on Recommendation of Reviewing Officer

The prosecutor can file the information against the respondent, or direct another assistant prosecutor or
state prosecutor to do so without conducting another preliminary investigation. This is on the ground the proper
officers disapproves the investigating prosecutors recommendation.
Prohibited Motions for Reinvestigation under the Revised Guidelines for Continuous Trial
 If the motion is filed without prior leave of court
 When the preliminary investigation is not required under Sec. 8, Rule 112
 When regular preliminary investigation is required and has been actually conducted, and the grounds relied
upon in the motion are not meritorious.

Remedy against an Adverse Finding

a. Chief State Prosecutor, Regional State Prosecutor and Provincial or City Prosecutor
The party affected by either the presence or absence of probable cause may file petition for
review under the rules prescribed by the DOJ. The aggrieved party, in such cases, may
appeal by filing a VERIFIED PETITION FOR REVIEW within 15 days from the receipt of the
resolution or of the denial of the motion.
b. Office of the Ombudsman
The aggrieved party’s remedy against an adverse finding is a motion for reconsideration
within 5 days from notice. Only one motion for reconsideration or reinvestigation shall be
allowed for an approved order. The same to be file within 5 days with corresponding leave
of court.

Consequence of Remedy
The Secretary of Justice shall direct the prosecutor to file the corresponding information without conducting
another preliminary investigation or to dismiss or move for dismissal of the complaint or information.

Effect of Availing the Remedy on the Filing of the Petition

Filing petition of for review, “shall not hold the filing of the corresponding information in court on the basis
of the finding of probable cause in the appealed resolution. However, it will suspend the arraignment of the accused
for a period not exceeding 60 days from the filing of the petition.
Filing of motion for reconsideration or reinvestigation with the OOTOmbudsman, shall not bar the filing of
the corresponding information in Court on the basis of the finding of probable cause in the resolution subject of the
motion.

Section 5: When Warrant of Arrest May Issue

a. By Regional Trial Court
- 10 days from the filing of complaint or information
- Judge will personally evaluate if there is probable cause or not
- On the determination of the probable cause, the Judge will issue a Warrant of Arrest
- In case of doubt, the Judge shall request an additional evidence within 5 days
- The issue must be resolved by the Court within 30 days.
b. By the Municipal Trial Court
- The procedure for the issuance of a warrant of arrest by the judge shall be governed by the par. A. of this
section.
c. Warrant of arrest not necessary
- Warrant of arrest shall not issue of the accused is already under detention pursuant to the warrant
issued by the MTC.

For Cases Requiring Preliminary Investigation

The same rules apply for cases under OP and MTC level courts. (Imposable penalties does not exceed 6 years
& 4, 2,1 cases – regardless of fine)

***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

The task of the presiding judge when the INFORMATION HAS BEEN FILED WITH THE COURT is first and
foremost to determine the existence or non-existence of probable cause for the arrest of the accused.

Personal Examination
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.

THREE IMPORTANT MATTERS REGARDING JUDICIAL DETERMINATION OF PROBABLE CAUSE

 The determination of probable cause by the prosecutor is for the purpose different from that which
is to be made by the judge. The judge, on the other hand, determines a warrant of arrest should be
issued against the accused.
 The judged cannot rely solely on the report of the prosecutor in finding probable cause to justify the
issuance of warrant of arrest
 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.

Probable Cause Hearing

A personal evaluation of the prosecutor’s report and supporting documents shall be sufficient. A HEARING
HOWEVER IS NOT NECESSARY FOR THE DETERMINATION OF PROBABLE CAUSE.

Dismissal of Case for Failure to Establish Probable Cause

If the judge finds no probable cause, he can dismiss the case outright, and not warrant shall issue. Remedies
are 1. Appeal the Decision; 2. Re-file the Case.

Order to Present Additional Evidence

Order of additional evidences shall be deemed necessary if “it is only in cases where in doubt of the
existence of the probable cause”. 5 days notice is also observed.

When Warrant of Arrest Not Necessary

1. If the accused is already under detention
2. Under Inquest Proceeding
3. Or for an offense Penalized by Fine only

Section 6: When Accused Lawfully Arrested Without Warrant

Purpose of Inquest
Inquest defined, "an informal and summary investigation conducted by a public prosecutor in criminal cases
involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the
purpose of determining whether said persons should remain under custody and correspondingly be charged in court.

***Result of an inquest is either the filing of information in court or release of the arrested person. Moreover, the
rules on inquest does not provide for a motion for reconsideration.
Inquest Proceedings
Commencement of Proceedings
Inquest shall be considered commenced upon receipt by the Inquest Officer from the law
enforcement the complaint/referral documents.

Complaint or referral documents must include:

 Affidavit of Arrest
 The Investigation Report
 The Statement of the Complainant and Witnesses
 Other Supporting Evidence Gathered by the Police in the Investigation

Initial Duty of the Inquest Officer

His initial duty was to determine based on the complaint or referral documents if the arrest of the
detained persons was “IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) & (B) OF
SECTION 5 RULE 113, OR THE RULES ON VALID WARRANTLESS ARREST”.

***inquest proceedings are proper only when the accused has been lawfully arrested without
warrant.

If the Warrantless Arrest is Invalid: Release , or Release with Subpoena/Notice of Preliminary

Investigation
If the arrest was not properly effected, apply Section 9 of the New Rules on Inquest. The Inquest
officer should:
 Recommend the release of the person arrested or detained.
 Note down the disposition on the referral document
 Prepare a brief memorandum indicating the reasons for the actions taken
 Forward the same, together with the record of the case, to the City or Provincial
Prosecutor for appropriate answer.

The release of the detained should be approved by the City or Provincial Prosecutor. However, 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 subpoena or notice of preliminary investigation.

If the Warrantless Arrest is Valid: Avail of Preliminary Investigation or Proceed to Inquest Proper
If the warrantless arrest is valid, Section 10 of New Rules on Inquest states that the detained person
shall be asked whether he wishes to avail preliminary investigation.
If he chooses to do so, he shall waive the Article 125 with this execution; he must seek an assistance
of a lawyer or a responsible person of his choice. This shall be declared null and void and of no effect if not
in writing and signed by such person with the presence of his counsel and will be terminated within 15 days.

Inquest Proper
If P.I. is not availed, the proceedings now move to the inquest proper as stated in Section 11 of New Rules on
Inquest. The prosecutor examines the statement or affidavit of the complainant and witness, supporting evidences
and inn an informal and summary proceedings, determines whether or not there is probable cause.

***counter affidavits is not allowed, unless Article 125 is waived.

Finding Lack or Existence of Probable Cause

If in the conduct of inquest proceedings the I.O. find probable cause, he shall prepare the
complaint/information and 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.
Remedies After Inquest
These are the remedies available for the person who is arrested without warrant:
 Request for preliminary investigation (before/after the filing of information)
 Apply For Bail

***NO MOTION FOR RECONSIDERATION OR PETITION FOR REVIEW FOR THE RESOLUTION OF INQUEST
PROSECUTOR IS ALLOWED IN THE RULES. PETITION FOR REVIEW WILL BE MADE AVAILABLE AFTER
AVAILING THE P.I…

Request for Preliminary Investigation

2 Instances where a Person arrested without warrant can request P.I.
 Option to avail 15-day Preliminary Investigation, given that he already waived the Art. 125.
(2nd par. Section 6, Rule 112)
 The accused may, within 5 days from the time he learns of its filing, ask for Preliminary
Investigation (3rd par. Section 6, Rule 112)
Bail After Inquest
Bail shall be made available for the accused after the termination and from the determination of the
lawfulness of the arrest.
Moreover, a person lawfully arrested and detained but who has not yet been formally charged in court, can
seek provisional release through the filing of an application for bail.

***Bail is available to all persons where the offense is bailable. Given that the arrested person availed P.I.
and waived his Article 125.

Absence or Unavailability of Inquest Prosecutor

The case may be filed directly in court by the offended party of peace officer, thus dispensing with the
inquest proceedings.

Section 7(A): Records Supporting the Information or Complaint

Section 7(B): Record of Preliminary Investigation
Preliminary Investigation Records Forwarded to the Court
Preliminary investigation documents and supporting evidences are generally not forwarded to the court. The
documents if elevated, upon order of the court, maybe considered by the trial court judge in his determination of
probable cause for the issuance of a warrant of arrest.

Record of Preliminary Investigation Generally Not Part of the Record of the Case
Preliminary investigation reports and documents and affidavits are generally not part of the records of the
case.

***Said records or a part thereof may be produced, “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 by the Rule on
Summary Procedure, (a) if filed with the prosecutor; (b) if filed with the Municipal Trial
Court
Cases Not Requiring Preliminary Investigation But Filed with the Prosecutor
 Cases punishable by 421 are cognizable by the municipal courts and P.I. is not mandatory.
 Cases requiring P.I. , Section 5 of the Rule 112 is applicable.

Cases Not Requiring Preliminary Investigation and not Covered by the Summary Procedure
 Three Options of a Judge when P.I is not required and not covered by Summary Proceedings
 If he finds probable cause, he shall issue a warrant of arrest/commitment order if the accused has
already been arrested.
 If he finds no probable cause, he shall dismiss the case
 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 warrant of arrest.

Cases Covered by the Rule on Summary Procedure

Cases covered by Revised Rule on Summary Procedure are cases punishable by a penalty not exceeding 6
months.
Cases filed directly on first level courts under Section 11 of Revised Rule on Summary Procedure, Section 13
of the same provides that the courts have two options:
 To set case for arraignment and trial if it finds “cause or ground to hold the accused for trial
 To dismiss the case, if it finds no such cause or ground.