RULE 112, SEC.

3 – PROCEDURE
STEP 1 Filing of the
complaint

STEP 2 Investigating officer

may either dismiss or
issue subpoena

STEP 3 If subpoena is issued,

respondent
shall submit a counter-
affidavit and
other supporting
documents

STEP 4 Hearing (optional)

STEP 5
Resolution of
investigating
prosecutor
 RIGHTS OF RESPONDENT IN PRELIMINARY
INVESTIGATION

1. To submit counter-affidavit.

2. To examine the evidence submitted by the complainant

3. To be present in the clarificatory hearing.

Note: The Rules does not require the presence of the respondent in the
preliminary investigation. What is required is that he be given the
opportunity to controvert the evidence of the complainant by
submitting counter-affidavits.

 (If respondent cannot be subpoenaed, or if subpoenaed but

does not submit his counter-affidavit within 10 days,
investigating officer shall resolve the complaint based on the
evidence presented by the complainant.)

 PRELIMINARY INVESTIGATION IN OUR CRIMINAL

JUSTICE SYSTEM

- The law enforcer who conducted the criminal investigation,

gathered the evidence and thereafter filed the complaint for
the purpose of preliminary investigation cannot be allowed to
 conduct the preliminary investigation of his own complaint. It
is to say the least arbitrary and unjust.

- Since a preliminary investigation is designed to screen cases

for trial, only evidence may be considered. While reports and
even raw information may justify the initiation of an
investigation, the stage of preliminary investigation can be
held only after sufficient evidence has been gathered and
evaluated warranting the eventual prosecution of the case in
court.

 MEANING OF PROBABLE CAUSE FOR PURPOSE

OF FILING INFORMATION

- PROBABLE CAUSE: Reasonable ground of suspicion

- What is Probable Cause for the purpose of filing
Information? --- 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 an honest or strong suspicion that a
thing is so.
- The term does not mean "actual or positive cause"; nor does
it import absolute certainty. It is merely based on opinion and
reasonable belief.
  PI IS ONLY FOR THE DETERMINATION OF
PROBABLE CAUSE
- As summed up in Webb v. de Leon, a finding of probable
cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be
based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of
guilt.
- A finding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.
- The preliminary investigation is not the occasion for the full
and exhaustive display of the parties’ evidence.
- It is for the presentation of such evidence as may engender
a well grounded belief that an offense has been committed
and that the accused is probably guilty thereof. It is a means
of discovering the persons who may be reasonably charged
with a crime. The validity and merits of a party's defense or
accusation, as well as admissibility of the testimonies and
evidence, are better ventilated during trial proper than at the
preliminary investigation level.

 NO NEED TO SET INVESTIGATION FOR

CLARIFICATORY QUESTIONING

- If the evidence on hand already yields a probable cause, the

investigator need not hold a clarificatory hearing.
- Probable cause merely implies probability of guilt and should
be determined in a summary manner.

- Preliminary investigation is not a part of trial and it is only in a

trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his
accusers to establish his innocence. It is not the proper
forum for an exhaustive production of evidence.

 NO RIGHT OF CROSS-EXAMINATION

- It is a fundamental principle that the accused in a preliminary

investigation has no right to cross-examine the witnesses
which the complainant may present.
- Section 3, Rule 112 of the Rules of Court expressly provides
that the respondent shall only have the right to submit a
counter-affidavit, to examine all other evidence submitted by
the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their
witnesses, to be afforded an opportunity to be present but
without the right to examine or cross-examine.

 ABSENCE OF COUNSEL
- Where the accused is not represented by a counsel during
the preliminary investigation, such irregularity which amounts
to an absence of preliminary investigation should be raised
before the trial court.
- When so raised, the trial court is called upon not to dismiss
the information but hold the case in abeyance and conduct
its own investigation or require the fiscal to hold a
reinvestigation.
- This is the proper procedure since the absence of such
investigation did not impair the validity of the information or
otherwise render it defective. Much less did it affect the
jurisdiction of the trial court.
- The right to a preliminary investigation, being waivable does
not argue against the validity of the proceedings. The most
that should be done is to remand the case in order that such
investigation could be conducted.

 THE RIGHT OF ACCUSED TO DISCOVERY

PROCEDURES

- In Webb u. de Leon, the court held that an accused is

entitled during preliminary investigation to discovery
procedure. While recognizing the absence of any provision
in the Rules on Criminal Procedure for discovery
proceedings during preliminary investigation, the Court held
that such failure does not, however, negate its use by a
 person under investigation when indispensable to protect his
constitutional right to life, liberty and property.

*** Preliminary Designation of Offense Not Conclusive. The

preliminary designation of the offense in a directive to file
counter affidavits is not conclusive as to the true nature of
the offense charged.

RIGHT TO BE PRESENT NOT ABSOLUTE

- The New Rules on Criminal Procedure does not require as a
condition sine qua non to the validity of the proceedings in
the preliminary investigation; the presence of the accused for
as long as efforts to reach him were made, and an
opportunity to controvert the evidence of the complainant is
accorded him.
- The obvious purpose of the rule is to block attempts of
unscrupulous respondents to thwart the prosecution of
offenses by hiding themselves or by employing dilatory
tactics.
- Thus, preliminary investigation can be conducted ex-parte if
the respondent cannot be subpoenaed or does not appear
after due notice. The fiscal need not call the witnesses for
clarificatory questioning if the evidence on hand already
yields probable cause.

RIGHT TO NOTICE
- The, respondent is, however, entitled to be notified of the
proceedings and to be present thereat.
- The fact that he was not so notified is a denial of
fundamental fairness which taints the preliminary
investigation.

PRELIMINARY INVESTIGATION MUST BE

COMPLETED
- The right to a preliminary investigation is a substantial right
and its denial amounts to a denial of due process. Its
absence, however, is not a ground for a motion to quash.