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Rule 112
Preliminary
Investigation
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.
Except as provided in section 7 of this Rule, a preliminary investigation is required
to be conducted before the filing of a compliant 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. (1a)
Alright. We will now go to Preliminary Investigation. This is one of the features of the inquisitorial
system of criminal procedure. The government is the boss. The purpose is for determining whether
there is probable cause, not guilt or innocence of the accused, because what is probable cause to you
may not be probable cause sa akin. That is why you can see the fiscal as a very powerful person in the
government. He could say that there is probable case or there is none. Depende kung anong gusto
niya.
So, the government through the investigating officer will decide whether there is a case or no case.
He will first conduct an investigation and if he believes that there is a probable cause, then he will
prepare a resolution recommending to this superior that the respondent be indicted in court.
The purpose of preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive
trials. (Marcos vs. Cruz, 68 Phil. 96; Hashim vs. Boncan, 71 Phil. 216)
Q: Is Preliminary Investigation required in all criminal cases?
A: Under the new rules, it is required when the crime for which the respondent is charged carries a
penalty of at least four (4) years, two (2) months, and one (1) day.
Q: What happen if a case is filed in court without preliminary investigation? Can the accused file a
motion to quash the information on the ground of absence of a preliminary investigation?
A: Of course there is no question that there is a denial of a right. However, if there is an
irregularity, that is not a ground for dismissal. An information cannot be dismissed because there was
no preliminary investigation. The procedure is for the court to suspend the proceedings and refer the
matter back to the proper officer for preliminary investigation (People vs. Oliveria, 67 Phil. 427; People
vs. Manlapas, L-17993, August 24, 1962)
Q: Who has the discretion whether to prosecute or not to prosecute?
A: The public prosecutor. That is why he is a powerful officer. He exercises quasi-judicial function
because he is the one to determine whether to file a case against you or not. He has the authority to
file or the authority to dismiss.
Q: Can the discretion of a public prosecutor be controlled? Can you file a petition for mandamus to
compel a public prosecutor to file a case?
A: General Rule: The public prosecutor cannot be compelled by mandamus to prosecute a case
because it is discretionary eh! Maybe you can prove grave abuse of discretion. Maybe the probable
cause is very, very clear or obvious, then ayaw pa nyang i-file, ayan na!
Q: What are the remedies of the offended party if a fiscal refuses to file a case even when there is a
sufficient evidence in which action may be taken?
A: There are three (3) possible remedies:
1. He may take up the matter with the Secretary of the Justice who may then take
such measures as may be necessary in the interest of justice; or to his superior
officer, the Regional State Prosecutor;
2. He may also file with the proper authorities or court criminal or administrative
charges against the fiscal. That is what you call prevericacion in the Revised Penal
Code;
3. He may file a civil action for damages under Article 27, New Civil Code.
Rule 112
Preliminary
Investigation
There are other cases where the Supreme Court (SC) commented on this aspect about the quasijudicial power of the public prosecutor. In the case of GUIAO VS. FIGUEROA (94 Phil. 1018), the SC
said that the prosecution, as an exception, may be compelled by mandamus if he abuses his discretion
and refuses to include a person as a co-accused against whom there appears to be at least a prima
facie evidence. That is grave abuse of discretion. However, this extraordinary writ is available only if
the petition shows that he has first exhausted all remedies in the ordinary course of law such as a
motion filed with the trial court for the indictment of the person or persons excluded by the
prosecutor.
SANCHEZ vs. DEMETRIOU
November 9, 1993
HELD: The decision of the prosecutor may be reversed or modified by the Secretary of
Justice or in special cases by the President of the Philippines. But even this Court cannot
order the prosecution of a person against whom the prosecutor does not find sufficient
evidence to support at least a prima facie case. The courts try and absolve or convict the
accused but as a rule have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a grave abuse of
discretion that will justify judicial intrusion into the precincts of the executive. But in such
a case the proper remedy to call for such exception is a petition for mandamus, not
certiorari or prohibition.
Lets go back in the case of
TEEHANKEE JR. vs. MADAYAG
March 6, 1992
FACTS: Here, Claudio Teehankee, Jr. was originally charged for the crime of frustrated
murder for shooting Hultman na na-comatose for how many months. In the course of the
trial, Hultman died. The prosecution sought to change the information from frustrated
murder to consummated murder. Teehankee Jr. questioned the new charge for lack of
preliminary investigation thereon .
There are three (3) questions to be answered here:
ISSUE #1: Was there an amendment of the information or substitution when the
information was changed from frustrated murder to consummated murder?
HELD: There is an amendment. There is an identity of offenses charged in both the
original and the amended information [murder pa rin!]. What is involved here is not a
variance of the nature of different offenses charge, but only a change in the stage of
execution of the same offense from frustrated to consummated murder. This being the case,
we hold that an amendment of the original information will suffice and, consequent thereto,
the filing of the amended information for murder is proper.
ISSUE #2: What kind of amendment? Formal or substantial?
HELD: Formal. An objective appraisal of the amended information for murder filed
against herein petitioner will readily show that the nature of the offense originally charged
was not actually changed. Instead, an additional allegation, that is, the supervening fact of
the death of the victim was merely supplied to aid the trial court in determining the proper
penalty for the crime [So it is still murder.]. That the accused committed a felonious act
with intent to kill the victim continues to be the prosecution's theory. There is no question
that whatever defense herein petitioner may adduce under the original information for
frustrated murder equally applies to the amended information for murder.
So halimbawa sabihin ng prosecutor: You shot Hultman who almost died. Teehankee
Jr.: Wala man ako dun ba! I was at home asleep! Alibi ang defense niya ba. Now, namatay
si Hultman. Ano man ang depensa mo? Mau man gihapon: Wala man ako dun!
So you are not prejudiced because the same defense available to you is still available to
you now.
ISSUE #3: Is there a need of a preliminary investigation on the new charge?
HELD: No need because you have not changed the crime. If you change the crime or
when there is substitution, kailangan ng preliminary investigation. Since it is only a formal
amendment, preliminary investigation is unnecessary. The amended information could not
conceivably have come as a surprise to petitioner for the simple and obvious reason that it
charges essentially the same offense as that charged under the original information.
Rule 112
Preliminary
Investigation
Furthermore, as we have heretofore held, if the crime originally charged is related to the
amended charge such that an inquiry into one would elicit substantially the same facts
that an inquiry into the other would reveal, a new preliminary investigation is not
necessary.
Rule 112
Preliminary
Investigation
(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.
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 counteraffidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day 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 the right to examine or cross-examine. They may, however, submit to the
investigating 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 counteraffidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for trial. (3a)
Rule 112
Preliminary
Investigation
ISSUE #2: The government contended that a total lack of preliminary investigation is
not a ground for dismissing an information, how come the delay in terminating a
preliminary investigation becomes now a ground for dismissal?
HELD: It has been suggested that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete absence of a preliminary
investigation does not warrant dismissal of the information. True but the absence of a
preliminary investigation can be corrected by giving the accused such investigation. But an
undue delay in the conduct of a preliminary investigation can not be corrected, for until
now, man has not yet invented a device for setting back time.
SANTIAGO vs. GARCHITORENA
December 2, 1993
FACTS: Anti-graft charges were filed against Miriam Defensor-Santiago when she was
still the Immigration Commissioner. Santiago raised this issue (on delay) because the
offense was allegedly committed on or about October 17, 1988 and the information was
filed only on May 9, 1991 or almost 3 years later. The amended information was filed only
on December 8, 1992 or 4 years later. So following the Tatad ruling they shall be dismissed.
HELD: [Santiago] cannot complain that her constitutional rights to due process were
violated by reason of the delay in the termination of the preliminary investigation. Tatad v.
Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there
indeed was an unexplained inaction on the part of the public prosecutors inspite of the
simplicity of the legal and factual issues involved therein. In the case at bench, there was a
continuum of the investigatory process but it got snarled because of the complexity of the
issues involved.
We note that [Santiago] had previously filed two petitions before us involving 2 criminal
cases. Petitioner has not explained why she failed to raise the issue of the delay in the
preliminary investigation and the filing of the information against her in those petitions. A
piece-meal presentation of issues, like the splitting of causes of action, is self-defeating. So
it is like splitting your causes of action working against you. Yaan!
SOCRATES vs. SANDIGANBAYAN
253 SCRA 773, February 20, 1996
NOTE: I think Socrates was a governor of Palawan. He was also facing cases in the
Sandiganbayan where he invoked the Tatad ruling.
HELD: In the application of the constitutional guaranty of the right to speedy
disposition of cases, particular regard must also be taken of the facts and circumstances
peculiar to each case. It is palpably clear that the application of the Tatad doctrine should
not be made to rely solely on the length of time that has passed but equal concern should
likewise be accorded to the factual ambiance and considerations. It can easily be deduced
from a complete reading of the adjudicatory discourse in Tatad that the three-year delay
was specifically considered vis-a-vis all the facts and circumstances which obtained
therein.
So you just dont consider the time element. You must also consider the facts. Panahon ni Marcos
yung kay Tatad eh.
SERVANTES vs. SANDIGANBAYAN
307 SCRA 149, May 18, 1999
NOTE: The Tatad ruling was applied in this case.
FACTS: Here, Elpidio Servantes was charged for violation of Section 3(e) of the AntiGraft law. It took the special prosecutor six (6) years from the filing of the initiatory
complaint before he decided to file an information for the offense in the Sandiganbayan.
Servantes filed a motion to quash for violation of the right to speedy disposition of the case.
Special prosecutor tried to justify the delay in the resolution of the complaint by stating
that no political motivation appears in the prosecution of the case in apparent reference in
the case of Tatad because in the case of Tatad there was political motivation dun eh kaya
na-delay.
Special Prosecutor: Servantes here was insensitive to the implications and
contingencies thereof by not taking any step whatsoever to accelerate the disposition of the
Rule 112
Preliminary
Investigation
matter. Meaning, 6 years anong ginawa mo? Hindi ka man nagreklamo! You did not file a
motion to hurry up. So you are estopped.
HELD: We find Servantes contention meritorious. He was deprived of his right to
speedy disposition of the case, a right guaranteed by the Constitution. We cannot accept
special prosecutors ratiocination. It is the duty of the prosecutor to speedily resolve the
complaint as mandated by the Constitution regardless of whether Servantes did not object
to the delay although the delay was with his acquiescence provided it was not due to causes
directly attributable to him. So the mere fact that he was not complaining is not a factor.
What is the factor is when the delay was caused by him. Yaan!
I know a case decided here during the time of former deputy Ombudsman Delpacio(?) when he was
still here in Davao. For more than 4 years the preliminary investigation has not been terminated. The
respondent filed a mandamus direct to the SC to compel the dismissal of his case citing Tatad case.
With this mandamus, the SC required the Ombudsman to comment. So what the Ombudsman did,
pinaspasan niya! So he came out with a resolution immediately a resolution to file. Then he
answered the SC: I already terminated the preliminary investigation in fact there is now a resolution to
file. Cured na! There is no more delay. Sabi ng SC: Hindi na puwede yan! i-dismiss mo na!
Rule 112
Preliminary
Investigation
The investigating prosecutor after the preliminary investigation will now issue a resolution to be
approved by his superior recommending the filing or dismissal of the case. If he finds probable cause
to hold the respondent for trial, he shall prepare the resolution and information and he will certify
under oath that he, or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses that there is a reasonable ground to believe that a crime has been
committed that the accused is probably guilty thereof, that the accused was informed of the
complaints and of the evidence submitted against him and that he was given opportunity to submit
controverting evidence. That is a standard form in the information filed by the prosecutor.
Q: Suppose the prosecutor failed to make that certification in the information, is the information
valid or defective?
A: It is still VALID. Notwithstanding the absence in the information of a certification as to the
holding of a preliminary investigation, the information is nonetheless considered valid for the reason
that such certification is not an essential part of the information itself and its absence cannot vitiate it
as such. (Alvizo vs. Sandiganbayan, 220 SCRA 45)
Q: After that, what will he do? To whom will he forward his resolution?
A: To the provincial or city prosecutor or chief state prosecutor depending on who is conducting the
preliminary investigation;
Q: Is the resolution of the prosecutor appealable?
A: YES. It is appealable to the Secretary of Justice. The last paragraph of Section 4 gives the power
of review to the Department of Justice that is, if the case originally started in the Fiscals office.
The DOJ can reverse or modify resolution of a city or provincial prosecutor and the procedure for
review is governed not by the Rules of Court, but by a department order. There is also a procedure
there for appeal or review by the DOJ (2000 DOJ Rules on Appeal, July 3, 2000).
One of the cases we have to remember here is the leading case of CRESPO VS. MOGUL, (June 30,
1987). Here are some points discussed in this case:
Q: What happens if the DOJ sustains the appeal?
A: It will reverse the resolution of the prosecutor.
Example:
PROSECUTOR: Dismiss! The case should not be filed.
DOJ: Reversed! You file the case.
Rule 112
Preliminary
Investigation
Walang magawa ang fiscal diyan. He must file the case because that is the order of his superior.
What if:
Example:
PROSECUTOR: There is probable cause. I will file the case.
RESPONDENT/ACCUSED: Appeal!
DOJ: I will reverse. You are hereby ordered not to file.
Q: E kung na-file na?
A: Under the new rules, the fiscal is ordered to file a motion to dismiss the case in court.
There is no problem if the resolution of the fiscal is to dismiss and then ang DOJ order is to file.
Ang mahirap is if the resolution of the fiscal is to file and na-file na, and then sabi ng DOJ, ah
walang probable cause do not file! Prosecutor: Eh, na-file na? DOJ: Okey, you move to dismiss the
case.
So the fiscal will file a motion to dismiss. His argument will be, there is no probable cause
according to DOJ my superior and the Secretary of Justice has ordered me to move for the dismissal
of the case. Eh kung sabihin ng court:
COURT: Ayoko! Tuloy ang kaso! [ay naloko na!!]
FISCAL: Sorry Your Honor but that is the order of my superior. I cannot go against the
DOJ.
COURT: Superior mo, hindi akin! It is not my superior! Ituloy ang kaso!
Yaan!! That was the issue in the case of CRESPO. And the SC ruled that:
CRESPO vs. MOGUL
June 30, 1987
HELD: The power of the fiscal is practically absolute whether to file or not to file. But
once the case is filed in court, the power now belongs to the judge and he is the one who
will determine whether to proceed or not to proceed. The court will be the one to decide
because control over the case is already shifted in the court. The court now has the
absolute power and once the court tell the fiscal you proceed, then the fiscal has to
proceed. The latter should not shirk from his responsibility of representing the People of the
Philippines. So the absolute power of the fiscal ends upon the filing of the case in court.
As an advise [advise lang, hindi naman order], that in order to avoid this unpleasant
situation where the opinion o the Secretary of Justice is not to proceed but the opinion of
the judge is to proceed, and the fiscal is caught in the middle [naipit ba!], when the case is
already filed in court, as much as possible huwag ka (DOJ) ng makialam. The Secretary of
Justice as much as possible, should not review the resolution of the fiscal to file when the
case is already filed in court to avoid this unpleasant situation because it will really cause a
conflict of opinion between the two (2) offices.
There are other cases where the SC elaborated on this but the leading case is CRESPO. I will just
cite to you some of these cases where the SC had something to comment about this issue as we have
no more time to go over them one by one:
1.
2.
3.
4.
5.
6.
And based on some of these cases in relation to reinvestigation, the SC held that once the case is
already in court and the accused would like to have his case reinvestigated, the court must agree.
There must always be the concern of the court because of the absolute control is already in the court
once the case is filed. And take note that there is no double jeopardy in preliminary investigation.
Rule 112
Preliminary
Investigation
SEC. 5. Resolution of investigating judge and its review. Within ten (10) days after
the preliminary investigation, the investigating judge shall transmit the resolution of the
case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for
appropriate action. The resolution shall state the findings of facts and the law
supporting his action, together with the record of the case which shall include: (a) the
warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and
other supporting evidence of the parties; (c) the undertaking or bail of the accused and
the order for his release; (d) the transcripts of the proceedings during the preliminary
investigation; and (e) the order of cancellation of his bail bond, if the resolution is for
the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city prosecutor,
or the Ombudsman or his deputy, as the case may be, shall review the resolution of the
investigating judge on the existence of probable cause. Their ruling shall expressly and
clearly state the facts and the law on which it is based and the parties shall be
furnished with copies thereof. They shall order the release of an accused who is
detained if no probable cause is found against him. (5a)
Section 5 applies to preliminary investigations conducted by MTC judges. Remember, aside from
fiscal, MTC judges are also allowed to conduct preliminary investigations. But in Metro Manila and
chartered cities, MTCC judges do not conduct preliminary investigations everything is given to the
state prosecutor.
What happens if the judge or the MTC judge will conduct a preliminary investigation? The judge
will conduct a preliminary investigation. Ang kanya, there is a probable cause or there is no probable
cause, either way he must forward his resolution to the provincial prosecutor. The provincial
prosecutor will be the one to decide.
Q: Do you mean to tell me the provincial prosecutor will conduct again another preliminary
investigation?
A: NO. He will just review the findings of the judge. Maybe the provincial fiscal will simply adopt
the finding of the MTC judge.
Q: Suppose sabi ng fiscal, Di ako kuntento. I am not satisfied with the preliminary investigation
by that judge. I will conduct another preliminary investigation Puwede ba yan?
A: YES. The provincial prosecutor has 100% control. He may adopt the finding and just follow the
recommendation filed, or he may conduct his own preliminary investigation.
Q: What happens if his decision is different from what the MTC judge believes? Whose decision will
prevail?
A: Fiscals decision will prevail. He can reverse the resolution of the MTC judge.
And in case the respondent has been arrested while the case is under preliminary investigation
and detained in jail, according to Section 5, last paragraph, last sentence, the provincial fiscal shall
order the release of an accused who is detained if no probable cause is found against him. This is one
instance where the opinion of the provincial prosecutor prevails over that of the judge. The fiscal can
reverse the findings of the judge eh.
Q: Bakit naman ganun? Why are we giving the provincial fiscal more power than the MTC judge
when it comes to preliminary investigation?
A: The reason is simple: who will prosecute the case the judge or the fiscal? Of course, it is the
fiscal. He will be the one to handle the case and not the judge.
Another reason is given by the SC in one case that actually, preliminary investigation is not really
the function of the judiciary. The power to determine whether to file or not file does not belong to the
judiciary. When a preliminary investigation is conducted by a judge, the judge performs a non-judicial
function, as an exception to his usual judicial duties. The assignment of that function to judges of
inferior courts and to a very limited extent to courts of first instance was dictated by necessity and
practical considerations. Consequently, the findings of an investigating judge are subject to review by
the provincial fiscal. (Castillo vs. Villaluz, March 8, 1989)
Alright. Lets go to Section 6 a very important provision when warrant of arrest may be issued.
Rule 112
Preliminary
Investigation
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within
ten (10) days from the filing of the complaint or information, 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 commitment
order if the accused has already been arrested pursuant to a warrant issued by the
judge who conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule. Incase 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.
xxxxxx
Let us picture what happens here. The case is triable by the RTC so this means, 6 years and 1
day up. Now, the fiscal conducts a preliminary investigation. Assuming after finding probable cause,
he will file information. After that, what will happen? The judge may issue a warrant of arrest to arrest
the accused because in his opinion, there is probable cause to issue the warrant of arrest. So that is
the situation.
So you will notice that this word probable cause has many functions. When the fiscal file the
information, he believes that there was probable cause probable cause to file the case. Pagdating sa
court, the RTC judge will present probable cause na naman to issue warrant of arrest. Iba yan eh!
Kanya-kanya yan probable cause to file, probable cause to issue warrant. That is why in the case of
CASTILLO vs. VILLALUZ
March 8, 1989
HELD: The fiscal prevails over the judge only in the determination of the existence of a
probable cause justify the filing of a complaint or information. This task is concededly
executive. But the determination of probable cause to justify the issuance of a search
warrant or a warrant of arrest is the constitutional prerogative of the judge and may not be
withdrawn from him or even only limited by statute or the Rules of Court. This task is
undoubtedly judicial.
The findings of the fiscal in the preliminary investigation do not control or foreclose the
exercise of the power conferred personally on the judge under Section 2 of the Bill of Rights.
That power is his alone.
Q: Now, under the Constitution, before the RTC judge issued the warrant of arrest because of
probable cause, anong dapat gawin niya?
A: He must personally examine the complainant and his witnesses to determine whether there is
probable cause to issue or not to issue a warrant of arrest.
How do you interpret the phrase, personally examine? I have to admit that the cases before were
somehow confusing. There were some case na literal pag-file mo ng kaso, the RTC judge has to call
the complainants, tanong tanong tanong to determine the probable cause to issue a warrant.
Otherwise if I will not examine them, it is unconstitutional for to issue a warrant. Or in another case,
RTC judge: sabi ng fiscal, may probable cause to file eh. Tama na yon! I believe him. I will now issue
the warrant. But there are some cases that say na hindi puwede yan because you are giving now to
the fiscal the right to determine your duty under the Constitution. You cannot do that because the law
says you must personally examine. Otherwise, the fiscal is the one who is determining.
But meron namang mga kaso where the SC said that if we will require the RTC judge to personally
examine the complainant and his witnesses to determine probable cause before issuing the warrant,
he might have no more or nothing to do more except to do that. He cannot anymore try cases, wala na,
puro na lang probable cause. So he may not have time anymore to do his usual duty. Thus he can rely
on the findings of the fiscal.
So this really cause some kind of confusion. Now, these confusions are now reconciled. There are
many cases such as ROBERTS VS. CA (the PEPSI-COLA 349 tansan case). But the first one the SC
really discussed the issue exhaustively was the 1991 case of
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Preliminary
Investigation
How did the SC reconcile that? When the fiscal files an information, the judge will require the fiscal
to attach to the information all the records of the preliminary investigations affidavits, counteraffidavits, or other whatever documents. All the evidence will be submitted to the judge and he will
review them. After reading them, if the judge is not satisfied that there was probable cause, he may
summon the witnesses. BUT if he is satisfied, he can issue the warrant without the need for
summoning the witnesses. He can rely on the affidavits. That is what personally examined means.
ROBERTS vs. COURT OF APPEALS
March 5, 1996
FACTS: This is the Pepsi-Cola 349 tansan case. Pag-file ng fiscal, marami, makapal ang
documents. The records of the case is voluminous. Maraming nanalo ng 349 nun eh. So
pag-file, after 20 minutes the judge issued the warrant of arrest. The accused challenged it:
ACCUSED: You did not determine probable cause.
JUDGE: Bakit? All the supporting documents are attached in the information.
ACCUSED: Yes, but how can you go over them in less than 20 minutes? You did
not go over them. Ibig sabihin binasa mo lahat yan within 20 minutes only?
So it is now doubtful that the judge will go over the entire records within 20 minutes.
Ang kapal ng records eh!
HELD: Sabi ng SC: Eh kung mabilis pala mag-basa ang judge? [Anong pakialam mo?
Ha!] Ang importante nandoon ang records!
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Investigation
Now, these issues were further supplemented by other cases in 1997. The leading case is
HO vs. PEOPLE OF THE PHILIPPINES
280 SCRA 365, October 9, 1997
ISSUE: Is it required that everything that was filed in the fiscals office will really be
included? Lahat ba talaga? Eh kung makapal?
HELD: 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 an accused. What is required,
rather, is that the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of
stenographic notes, if any) upon which to make his independent judgment or, at the very
least, upon which to verify the findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation.
This brings to my mind one of the leading cases on this issue which was asked in the Bar and
which I also asked in some examinations here. The case of
AMARGA vs. FISCAL
98 Phil. 739
FACTS: The provincial fiscal filed an information in the CFI (now, RTC). Normally, the
judge will issue the warrant. Nag-alanganin naman ang judge. What the judge did was to
issue an order requiring the fiscal to appear before him and convince him that there is
probable cause for the judge to issue warrant. Eh ayaw ng fiscal, My golly! That is already
an insult for me as a quasi-judicial officer! I found probable cause. That is my finding. The
judge should believe me because that is my prerogative. So ayaw mag-sunod ng fiscal.
Judge, Ayaw mo ha! Okey! Case is dismissed!
Remember, there are two (2) questions there asked in the bar:
ISSUE #1: Does the court have the power to require the fiscal to present evidence to
convince the judge that there is probable cause to issue the warrant of arrest when the
fiscal already found probable cause to file the case?
HELD: YES. The power of the fiscal is to determine probable cause to file while for the
judge is probable cause to issue the warrant of arrest. Iba yung iyo, iba rin yung sa akin!
You cannot say that simply because you found probable cause, I will follow you. [We already
discussed that principle and it is already stated in the rules] So, it will be the power of the
judge to inform the prosecutor and to require the fiscal to convince him that there is
probable cause to issue the warrant. (now last sentence of Section 6 [a])
ISSUE #1: Since the fiscal refuses to comply, did the judge act correctly in ordering the
dismissal of the information?
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HELD: NO. This time mali ang judge. If the fiscal does not want to comply with the
judges order, the remedy of the judge is not to issue the warrant. Ayaw mong sumunod?
then do not issue the warrant. But do not dismiss the case because this time we are
already encroaching the power of the prosecutor. (c.f. second sentence of Section 6 [a])
Now, based on the present rules, we will now ask the same questions today.
Q: Can the judge require the fiscal to present evidence of probable cause in convincing him to issue
the warrant of arrest?
A: YES. That is the prerogative of the judge. (AMARGA VS. ABBAS)
Q: If fiscal refuses, has the judge the power to dismiss the case?
A: In the case of Amarga, no. However, under Section 6, the judge may immediately dismiss the
case if the evidence on record clearly fails to establish probable cause.
That is a new sentence, xxx he may immediately dismiss the case xxx not found in the prior rule.
To my mind, that has change the answer. While before, the judge may not have the power to dismiss
the case if he finds no probable cause. Right now, the rules says YES because of that new provision,
he may immediately dismiss the case if the evidence on record clearly fails to establish probable
cause even if the fiscal has already found probable cause. In other words, this has changed the ruling
in the old case of Amarga.
Lets go to Section 6 [b]: (Preliminary Investigation conducted by MTC judge)
(b) By the Municipal Trial Court. When required pursuant to the second paragraph
of section 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 may be conducted by either the judge or
the prosecutor. When 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. When
the investigation is conducted by the judge himself, he shall follow the procedure
provided in section 3 of this Rule. If his findings and recommendations are affirmed by
the provincial or city prosecutor, or by the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue a warrant of arrest. However, without
waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if
he finds after an examination in writing and under oath of the complainant and his
witnesses in the form of searching questions and answers, that a probable cause exists
and that there is a necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice.
Obviously, this rule does not apply in chartered cities but in municipalities. Sa probinsiya, for
example, the case is murder. That is not triable by MTC but you can file the complaint for murder
before the MTC not for the purpose of trial but for the purpose of preliminary investigation. That is the
difference.
We already learned that the resolution of the judge, whether to file or not to file, is ipasa niya sa
Provincial Prosecutor who has the final say. Thats why the rule says, if his findings and
recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his
deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However,
without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he
finds after an examination in writing and under oath of the complainant and his witnesses in the form
of searching questions and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice.
Lets compare.
Q: Does the fiscal have the power to issue warrant of arrest?
A: NO. His power is to conduct preliminary investigation and if there is probable cause File!
Q: Who will issue the warrant?
A: RTC.
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Pero ang municipal judge, iba eh. The police will file a complaint for homicide in MTC for
preliminary investigation. Pag-basa ng MTC judge, aba! Grabe ito! There is probable cause. Pero teka
muna, delikado ito baka makawala arrest him! So even before the case is filed in the RTC, the MTC
judge has the power to issue warrant of arrest.
That is the difference between the power of the MTC judge and the power of the Provincial
Prosecutor. Both of them have the power to conduct a preliminary investigation in the province. But
the fiscal has no power to issue a warrant but the judge has the power to issue warrant even while the
preliminary investigation is going on. That is why in the province, complainants prefer to file sa MTC
para issue dayun ang warrant.
The issuance of warrant by the MTC judge is ex parte. He will just determine it based on the
affidavit of the complainant and his witnesses after searching questions and answers. So the
examination conducted by the judge is literal in meaning. And once you are arrested, tuloy tayo. You
now follow preliminary investigation. You submit now your counter-affidavits. For what purpose? We
will determine whether the case will be filed in the RTC or not.
So there are two (2) stages:
1. first stage Preliminary Examination to determine whether or not to issue a warrant of
arrest. This is done ex parte.
2. second stage Preliminary Investigation proper - to determine, after you are arrested,
whether or not you will be indicted in the RTC.
Q: Is it mandatory that every time you file a case in the MTC, the judge will always issue a warrant
or arrest?
A: NO. Hindi naman sinabi yun because in order to determine whether a warrant of arrest will be
issued, the judge will conduct the examination. He will examine in writing under oath of the
complainant and witnesses in the form of searching questions and answers, that a probable cause
exists and that there is a necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice.
So if you file a case for homicide against somebody in the municipality; tao na kilala mo; mayaman
at may malalaking properties; if Im the judge, I will not issue a warrant of arrest. Tatakbo ba yan? I
dont think so. I may or may not issue the warrant but my criterion is: is there a necessity of placing
him under immediate custody in order not to frustrate the end of justice? But suppose the accused
has no permanent address, ayan! Delikado na yan, baka makawala! I will now issue a warrant of
arrest.
Now, what has changed the picture now is this: there is no question if the case is triable by the
RTC, the MTC judge will conduct a preliminary investigation in order to determine whether or not the
case should be filed in the RTC.
Q: But now, when is the preliminary investigation required?
A: When the crime is punishable by 4 years, 2 months and 1 day and up.
Q: The case has a maximum penalty of 6 years therefore triable by the MTC. Is the MTC judge
required to conduct a preliminary investigation?
A: YES. Mandated man yan ba! Although it is triable by the MTC, it is still mandatory for the MTC
judge to conduct preliminary investigation because any crime which carries the penalty of 4 years, 2
months and 1 day or up, is subject to preliminary investigation.
Q: In this case, who will conduct the preliminary investigation? The fiscal or the MTC judge?
A: Either one of them. Let us read the opening paragraph of Section 6 (b):
(b) By the Municipal Trial Court. When required pursuant to the second paragraph
of section 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 may be conducted by either the judge or
the prosecutor.
But I was wondering with this issue. This happens in places where there is only 1 branch, 1 judge.
For example, ako ang judge and the case is filed before me preliminary investigation ito ha! 4 years,
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2 months and 1 day. There is a probable cause so I will continue. Now, who will try the case? Ako rin
di ba? Sabihin ng defense, Ah wala na. Talo na kami. Bias ka na eh! Naloko na! This might be a
ground for disqualification eh because you already found probable cause, chances are dire-diretso na
ito you will convict me, you are no longer impartial. This is now the danger because of this new
provision.
Suppose sabihin ng judge, Hindi man. I found probable cause only for the case to proceed to trial
but for all you know during the trial, I might find you innocent, not guilty beyond reasonable doubt.
Ang criterion ko diyan is probable cause man lang probably you are guilty. But when I will try it, it
should be guilt beyond reasonable doubt. Yan ang delikado dito! Mabuti sana if the fiscal was the one
who conducted the preliminary investigation. But when I am the one who conducted the preliminary
investigation and then I will also be one to try the case, there might be complaints of biases or
prejudgment. So there are provisions in the new rules which might create practical problems.
Lets go to the last portion of Section 6. Lets read Section 6 [c]:
(c) When warrant of arrest not necessary. 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 7 of this Rule or is for an offense penalized by
fine only. The court shall them proceed in the exercise of its original jurisdiction. (6a)
Normally, when the information is filed in court, the court issues a warrant of arrest. However,
there are instances when the court need not issue a warrant of arrest.
Q: What are the instances when the court need not issue a warrant of arrest?
A: Under Section 6 [c], the following are the instances:
1. if the accused is already under detention pursuant to a warrant issued by the MTC in
accordance with paragraph [b] of Section 6. If the MTC issues the warrant of arrest and
later on the cases reaches the RTC because there is probable cause, there is no need for
the RTC to issue another warrant because there is already a warrant issued by the MTC.
And as a matter of fact, the accused has already been detained;
2. when the complaint or information is filed pursuant to Section 7 of this rule. Section 7
the accused is arrested for committing a crime in the presence of a peace officer, the fiscal
will only conduct an inquest preliminary investigation and there is no need to issue a
warrant because the accused is also under detention already. Normally, what the court
there issues is a commitment order, just to confirm the detention of the accused; and
3. if the accused is charged for an offense penalized by fine only di na kailangan ang warrant
of arrest. There are crimes where there is no penalty for imprisonment but only fine like
damage to property through reckless imprudence. Based on the new rules, there is no need
for a warrant, just an order to appear is sufficient.
SEC 7. 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. (7a; sec. 2, R.A. No. 7438)
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accused post bail for his provisional release, he is deemed to have waived his right to preliminary
investigation. To avoid the waiver, there must be a previous or simultaneous demand for a preliminary
investigation upon posting of bail bond.
SEC. 8. Records. (a) Records supporting the information or complaint. An
information or complaint filed in court shall be supported by the affidavits and counteraffidavits of the parties and their witnesses, together with the other supporting evidence
and the resolution on the case.
(b) Record of preliminary investigation. The record of the preliminary investigation,
whether conducted by a judge or a prosecutor, shall not form part of the record of the
case. However, the court, on its own initiative or on motion of any party, may order the
production of the record or any of its part 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 is just a reiteration of a doctrine that when the fiscal files an information, he should
back up his certification of probable cause with appropriate records. An information with mere
certification is not enough. (Lim, Sr. vs. Felix, supra)
SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on
Summary Procedure. (a) If filed 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 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 instead of a warrant of arrest. (9a)
Section 9 Cases not requiring a preliminary investigation nor covered by the Rule on Summary
Procedure. Obviously, Section 9 talks only of cases (a) cognizable only by MTC; (b) the penalty does not
exceed 4 years 2 months because even if it is 4 years 2 months 1 day (up to 6 years), it still requires a
preliminary investigation under the new rules; and (c) it should not be covered by the Rules of
Summary Procedure. The coverage of summary procedure is up to 6 months penalty.
Q: What cases are covered by Section 9?
A: Where the prescribed penalty exceeds 6 months but not more than 4 years and 2 months. These
does not require preliminary investigation and also not covered by the summary rules.
Q: Now, going back to Rule 110. In cases cognizable by the MTC, how is it instituted?
A: Section 1, Rule 110:
SECTION 1. Institution of criminal actions. Criminal actions shall be instituted as
follows:
(a) For offenses where a preliminary investigation is required pursuant to section 1
of Rule 112, by filing the complaint with the proper officer for the purpose of conducting
the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the
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office of the prosecutor. In Manila and other chartered cities, the complaints shall be
filed with the office of the prosecutor unless otherwise provided in their charters.
xxxxx
So there are two (2) ways: (a) direct filing or (b) you file with the prosecutor and the provincial
prosecutor will file the information.
Lets go to Section 9. If it is filed with the prosecutor, the procedure in Section 3[a] of this rule shall
be observed. There is no need for preliminary investigation. The prosecutor will simply find out based
on the affidavit of the complainant and his witnesses whether or not there is probable cause. Wala ng
counter-affidavit. There is no need for the prosecutor to give a chance to the respondent to give this
counter-affidavits. Section 3[a] lang sundin eh. There is no mention of [b], [c] or [d].
Section 9[b]. What happens if it is filed in the MTC directly? Again, the judge will observe the same
procedure in Section 3[a] of this rule. If 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. So he has the
power to dismiss the case. Why continue if there is no probable cause?
The next sentence is new: 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 warrant of
arrest, or a commitment order if the accused had already been arrested, and hold him for trial. [The
next sentence is new again:] 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.
So it is not really necessary that every time a case is filed in the MTC with a penalty not more than
4 years and 2 months, kailangan mag-warrant of arrest agad ang judge. Wala na yan! That is the old
practice. Sometimes it is very tedious. Lalo na sa MTC. Karamihan ng kaso sa MTC is bouncing check
law. If I were the MTC judge, bouncing check law, sino ba yang akusado? Di ko kilala. Balita ko
maraming kaso yan. Ah sige, I will issue a warrant.
Pero halimbawa, sino yang akusado? He is Jet Pascua, Your Honor. Uy! Kilala ko ito! Businessman
ito, titser pa sa Ateneo. Mayaman ito! Sus! Minalas lang. If I am the judge, I will not issue a warrant.
Tatakbuhan ka ba niyan?
So the judge need not issue a warrant. You better tell that to those judges because they are
automatic ba! warrant! warrant! warrant! Just imagine kahit respectable man, first time offender
warrant kaagad ang mga MTC judges.
Well, under the new rules, hindi man kailangan bah! Even if there is probable cause to file, if he is
satisfied that there is no necessity to put the accused in custody, he may issue summons. Summons
here is not really the same in the Rules of Court. It is just a notice bah notice that you are required
to appear. And that is a new provision.
Now, we will go to some decided cases related to this rule.
PEOPLE vs. NAVARRO
270 SCRA 393, March 25, 1997
NOTE: This case signifies that once the case reached the court, the court has the
absolute power. Anything that you like to happen in the case like reinvestigation or absence
of preliminary investigation, the judge will be the one to approve.
FACTS: The RTC judge felt that the case should be reinvestigated, or maybe there is no
preliminary investigation. So he orders the fiscal to conduct preliminary investigation, then
submit the result to him afterwards what happened. Siguro, the judge had particular
confidence in the assistant provincial prosecutor. Sabi ng judge, The preliminary
investigation should be conducted by this particular prosecutor provincial assistant
prosecutor Boyd Atensor. Siya ang nag-pili ba. Sabi ng provincial prosecutor, Hindi! Ako
ang magpili and not you!
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SPACE-FILLER #2:
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