RULE 112 - PRELIMINARY

INVESTIGATION

Preliminary investigation is not the occasion for the full and exhaustive display of
the parties evidence. It is for the presentation of such evidence only as may
engender a well-founded belief that an offense has been committed and that the
accused is probably guilty thereof. The validity and merits of a partys accusation
or defense, as well as admissibility of testimonies and evidence, are better
ventilated during the trial proper. (Presidential Ad Hoc Fact-Finding Committee
on Behest Loans vs Desierto, G.R. No. 135703, April 15, 2009)

In the conduct of preliminary investigation, the prosecutor does not decide

whether there is evidence beyond reasonable doubt of the guilt of respondent. A
prosecutor merely determines the existence of probable cause, and to file the
corresponding information if he finds it to be so. (De Chavez vs Ombudsman, G.R.
No. 168830-31, February 6, 2007)

Probable cause implies probability of guilt and requires more than bare suspicion
but less than evidence to justify a conviction. (Manebo vs Acosta, G.R. No.
169554, October 28, 2009)
Probable cause has been defined as the existence of such facts and
circumstances as would excite belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted. A finding of probable cause merely binds
over the suspect to stand trial. It is not a pronouncement of guilt. (Spouses
Balanguan vs CA, G.R. No. 174350, August 13, 2008)

The presence or absence of the elements of the crime is evidentiary in nature

and is a matter of defense that may be passed upon after a full-blown trial on the
merits. In fine, the validity and merits of a partys defense or accusation, as well
as the admissibility of testimonies and evidence, are better ventilated during trial
proper than at the preliminary investigation level. (Samuel Lee vs KBC Bank, G.R.
No. 169554, October 28, 2009)

The purpose of a preliminary investigation or a previous inquiry of some kind,

before an accused person is placed on trial, 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 is also intended to protect the state from having to conduct useless
and expensive trials. (Sales vs Sandiganbayan, G.R. No. 143802, November 16,
2001)
The primary objective of a preliminary investigation is to free a respondent from
the inconvenience, expense, ignominy and stress of defending himself/herself in
the course of a formal trial, until the reasonable probability of his or her guilt has
been passed upon in a more or less summary proceeding by a competent officer
designated by law for that purpose. Secondarily, such summary proceeding also
protects the state from the burden of unnecessary expense and effort in
prosecuting alleged offenses and in holding trials arising from false, frivolous or
groundless charges. (Ledesma vs CA, 278 SCRA 656)

The fact that neither the 1935 nor the 1973 Constitution requires the holding of
a preliminary investigation. lt is settled doctrine that the right hereto is of
statutory character and may be invoked only when specifically created by
statute. (Marinas vs Siochi, 104 SCRA 423)

The preliminary investigation in criminal cases is not a creation of the

Constitution; its origin is statutory and it exists and the right thereto can be
invoked when so established and granted by law. (Doromal vs Sandiganbayan,
177 SCRA 354)

The right to preliminary investigation is not a mere formal right, it is a substantive

right. To deny the accused of such right would be to deprive him of due process.
(Duterte vs Sandiganbayan, 289 SCRA 721)
Although the right to a preliminary investigation is not a fundamental right
guaranteed by the Constitution but a mere statutory privilege, it is nonetheless
considered a component part of due process in criminal justice.(Ong vs
Sandiganbayan, 470 SCRA 7)

A preliminary investigation has then been called a judicial inquiry. It is a judicial

proceeding. An act becomes judicial when there is opportunity to be heard and
for the production and weighing of evidence, and a decision is rendered thereon.
(Cruz vs People, 233 SCRA 439)

The power to conduct preliminary investigation is quasi-judicial in nature. But

this statement holds true only in the sense that, like quasi-judicial bodies, the
prosecutor is an office in the executive department exercising powers akin to
those of a court. Here is where the similarity ends. A closer scrutiny will show
that preliminary investigation is very different from other quasi-judicial
proceedings. (Bautista vs CA, G.R. No. 143375, July 6 2001)
The public prosecutors power to conduct a preliminary investigation as quasi-
judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the
prosecutor is an officer of the executive department exercising powers akin to
those of a court, and the similarity ends at this point. Such is not the case when a
public prosecutor conducts a preliminary investigation to determine probable
cause to file an information against a person charged with a criminal offense, or
when the Secretary of Justice is reviewing the formers order or resolutions. Since
the DOJ is not a quasi-judicial body and it is not one of those agencies whose
decisions, orders or resolutions are appealable to the Court of Appeals under
Rule 43, the resolution of the Secretary of Justice finding probable cause to indict
petitioners for estafa is, therefore, not appealable to the Court of Appeals via a
petition for review under Rule 43. (Santos vs Go, G.R. No. 156081, October 19,
2005)

Preliminary investigation is an executive, not a judicial function.[23] Such

investigation is not part of the trial, hence, a full and exhaustive presentation of
the parties' evidence is not required, but only such as may engender a well-
grounded belief that an offense has been committed and that the accused is
probably guilty thereof. (Metropolitan Bank and Trust Company vs Tonda, 338
SCRA 254)

They waived the right to a preliminary investigation when they failed to invoke it
prior to, or at least at, the time of the entry of their plea in the Court of First
Instance. (People vs Gomez, 117 SCRA 73)
It has been held that after a plea of not guilty to the information, an accused is
deemed to have foregone the right of preliminary investigation and to have
abandoned the right to question any irregularity that surrounds it (People vs
Bulosan, 160 SCRA 492)

His filing of a petition to be released on bail was a waiver of any irregularity

attending his arrest and estops him from questioning its validity. (Go vs CA, 206
SCRA 138)

A preliminary investigation is conducted by the prosecutor to ascertain whether

the alleged offender should be held for trial, to be subjected to the expense,
rigors and embarrassment of trial or if the offender is to be released. (People vs
Inting, 187 SCRA 788)

A preliminary inquiry pr a preliminary examination is conducted by the judge to

determine probable cause for the issuance of a warrant of arrest. (This is a
judicial function. AAA vs Carbonel, 524 SCRA 496)
Preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for
the issuance of a warrant of arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecution's job. The second kind of
preliminary investigation which is more properly called preliminary examination
is judicial in nature and is lodged with the judge. (Co vs Republic, 539 SCRA 147)

Probable cause, for purposes of filing a criminal information, has been defined as
such facts as are sufficient to engender a well-founded belief that a crime has
been committed and that respondents are probably guilty thereof. The
determination of its existence lies within the discretion of the prosecuting
officers after conducting a preliminary investigation upon complaint of an
offended party. Probable cause is meant such set of facts and circumstances
which would lead a reasonably discreet and prudent man to believe that the
offense charged in the Information, or any offense included therein, has been
committed by the person sought to be arrested. (Roberto Kalalo vs Office of the
Ombudsman, G.R. No. 158189, April 23, 2010)

The complainant need not present at this stage proof beyond reasonable doubt.
A preliminary investigation does not require a full and exhaustive presentation of
the parties evidence. It is enough that in the absence of a clear showing of
arbitrariness, credence is given to the finding and determination of probable
cause by the Secretary of Justice in a preliminary investigation. (Ricaforte vs
Jurado, G.R. No. 154438, September 5, 2007)
In order that probable cause to file a criminal case may be arrived at, or in order
to engender the well-founded belief that a crime has been committed, the
elements of the crime charged should be present. This is based on the principle
that every crime is defined by its elements, without which there should beat the
mostno criminal offense. (Sy Thiong Siou vs Sy Chim, G.R. No. 174168, March 30,
2009)

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. (Heirs of Jose Sy Bang vs
Sy, G.R. No. 114217, October 13, 2009)

The test should be whether sufficient facts exist which show that, in bringing the
criminal action, complainant acted without probable cause, defined as the
existence of such facts and circumstances as would excite the belief in a
reasonable mind that the person charged and prosecuted in a criminal case is
probably guilty of the crime or wrongdoing. (Limanch-O Hotel and Leasing
Corporation, et al. vs City of Olongapo, G.R. No. 185121, January 18, 2010)

People vs Castillo, G.R. No. 171188, June 19, 2009

It must be stressed that in our criminal justice system, the public prosecutor exercises a wide
latitude of discretion in determining whether a criminal case should be filed in court, and that courts
must respect the exercise of such discretion when the information filed against the person charged
is valid on its face, and that no manifest error or grave abuse of discretion can be imputed to the
public prosecutor.

Thus, absent a finding that an information is invalid on its face or that the prosecutor committed
manifest error or grave abuse of discretion, a judges determination of probable cause is limited only
to the judicial kind or for the purpose of deciding whether the arrest warrants should be issued
against the accused.

Probable cause to warrant an arrest which is made by the judge refers to facts
and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed by the person sought to be arrested.
Other jurisdictions utilize the term man of reasonable caution or the term
ordinarily prudent and cautious man. (Webb vs De Leon, 247 SCRA 652)

It ought to be emphasized that in determining probable cause, the average man

weighs facts and circumstances without resorting to the calibration of our
technical rules of evidence of which his knowledge is nil. Rather, he relies on the
calculus of common sense of which all reasonable men have an abundance.
(Domalanta vs COMELEC, G.R. No. 125586, June 29, 2000)

A preliminary investigation is required to be conducted before the filing of a

complaint or information for an offense where the penalty prescribed by law is at
least 4 years, 2 months and 1 day without regard to the fine. (Tabujara vs People,
G.R. No. 175162, October 29, 2008)

For cases where the penalty prescribed by law is lower than 4 years, 2 months and 1 day, a
criminal complaint may be filed directly with the prosecutor or with the Municipal Trial
court but must still adhere to certain procedures for the determination of probable case and
the issuance of warrant of arrest

The issuance of a warrant of arrest is not mandatory and is to be issued if there is a

necessity of placing the accused under immediate custody however it is constitutionally
mandated that a warrant of arrest shall issue only upon finding of probable cause personally
determined by the judge after examination under oath or affirmation of the complainant
and the witnesses he/she may produce, and particularly describing the person to be seized.
(Tabujara III v. People, G.R. No. 175162, October 29, 2008)

Inquest proceedings are valid only when the accused has been lawfully arrested without a
warrant.

Section 3a of Rule 112 provides that the complaint must be accompanied by the affidavits of
the complainant and his witnesses, subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or unavailability,
before a notary public. Section 3(b) of Rule 112 also mandates that the prosecutor, after
receiving the complaint, must determine if there are grounds to continue with the
investigation. If there is none, he shall dismiss the case, otherwise he shall issue a
subpoena to the respondents.(Ladlad v. Velasco, 523 SCRA 218)

A person lawfully arrested and detained and not yet formally charged may apply for bail.
The application, however, must be filed in the province, city or municipality where the
person arrested is held. (Ruiz v. Beldia, Jr., 451 SCRA 402)

Preliminary investigation is a component part of due process but absence of preliminary

investigation does not impair the validity of the criminal information or render it defective.
In case of absence or irregularity of preliminary investigation, the accused must raise the
question before he enters his plea. It is a well-settled rule that the right to a preliminary
investigation may be waived by the failure to invoke it prior to or at least at the time of the
accused plea. Thus, when the petitioner entered a plea to the charge, he is deemed to have
waived the right to preliminary investigation. Application for bail does not affect his right to
question such absence or irregularity. (People v. Gomez, 117 SCRA 73)

The absence of preliminary investigations does not affect the courts jurisdiction over the
case. Nor do they impair the validity of the information or otherwise render it defective;
but, if there were no preliminary investigations and the defendants, before entering their
plea, invite the attention of the court to their absence, the court, instead of dismissing the
information, should conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted. (Larranaga v. Court of Appeals, 287 SCRA 581)

In the absence of preliminary investigation, the Sandiganbayan is to hold in abeyance any

further proceedings therein and shall remand the case to the Office of the Ombudsman. The
outcome of the preliminary investigation, after it has been remanded to the Office of the
Ombudsman for the completion of preliminary investigation, shall be indorsed to the
Sandiganbayan for its appropriate action. (Vasquez v. Hobilia-Alinio, 271 SCRA 67)
 Absence of a preliminary investigation is not a ground for a motion to quash Information as
enumerated in Sec. 3 Rule 117. The denial of a motion for reinvestigation also cannot
invalidate the Information or oust the court of its jurisdiction over the case.( Budiongan, Jr.
v. De la Cruz, 502 SCRA 626)

An inquest proceeding is conducted when a person is lawfully arrested without warrant

even if it involves an offense which requires a preliminary investigation.

The inquest conducted must be for the offense of which the detainee was arrested. Beltran
was arrested without a warrant for Inciting to Sedition but was subjected to a second
inquest proceeding for Rebellion. None of Beltrans arresting officers saw Beltran commit, in
their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and
circumstances that Beltran had just committed Rebellion, sufficient to form probable cause
to believe that he had committed the said offense. Hence the second inquest for Rebellion
was void for he was validly arrested for another offense and not for Rebellion. There was no
valid warrantless arrest for the charge of Rebellion and so, it only follows that he cannot be
subjected to inquest proceeding for such.(Crispin Beltran v. People and Secretary Gonzales,
G.R. No. 175013, June 1, 2007)

Judges of municipal trial courts were empowered to conduct preliminary investigations in

which they exercised discretion in determining whether there was probable cause to hale
the respondent into court. This was later amended as applied in Sibulo v. Toledo-Mupas.
(Mago v. Penalosa-Fermo, 582 SCRA 1)

Judges of first level courts are no longer authorized to conduct preliminary investigation.
This is pursuant to the amendment made by this Court on August 30, 2005 in A.M. No. 05-8-
26-SC Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure by
Removing the Conduct of Preliminary Investigation from Judges of the First Level Courts,
which took effect on October 3, 2005 (Sibulo v. Toledo-Mupas, A.M. No. MTJ-07-1686, June
12, 2008)

The Constitution, particularly Article IX, Section 20, empowers the COMELEC to investigate
and, when appropriate, prosecute election cases. (Bienvenido Dino and Renato Comparativo
v. Pablo Olivarez, G.R. No. 170447, December 4, 2009)

In the appropriate case, the Office of the Ombudsman has full authority to issue subpoenas,
including subpoena duces tecum, for compulsory attendance of witnesses and the production of
documents and information relating to matters under its investigation. The Ombudsman must
necessarily observe and abide by the terms of the Constitution and our laws, the Rules of Court and
the applicable jurisprudence on the issuance, service, validity and efficacy of subpoenas. It must
operate under the requirements of reasonableness and relevance. For the production of documents
to be reasonable and for the documents themselves to be relevant, the matter under inquiry should,
in the first place, be one that the Ombudsman can legitimately entertain, investigate and rule upon.
( Re: Subpeona Duces Tecum dated January 11, 2010 of Acting Director Aleu A. Amante, PIAB-C
Office of the Ombudsman, A.M. No. 10-1-12-SC, March 2, 2010 )

A complaint filed for the purpose of preliminary investigation differs from the complaint
filed for the purpose of instituting a criminal prosecution. Complaint for instituting a
criminal prosecution is in the name of the People of the Philippines and involves a court that
shall pronounce a judgment. That is not the case in a complaint for the purpose of
preliminary investigation. (Santos-Concio v. Department of Justice, 543 SCRA 70)

A clarificatory hearing is not indispensable during preliminary investigation. Rather than

being mandatory, a clarificatory hearing is optional on the part of the investigating officer as
evidenced by the use of the term may in Section 3(e) of Rule 112.( De Ocampo v. Secretary
of Justice, 480 SCRA 71)

Determination of probable cause during a preliminary investigation or reinvestigation is

recognized as an executive function exclusively of the prosecutor (Ledesma v. Court of
Appeals, 344 Phil. 207 [1997]; People v. Navarro, 337 Phil. 122 [1997]). An investigating
prosecutor is under no obligation to file a criminal action where he is not convinced that he
has the quantum of evidence at hand to support the averments (Pono v. NLRC, 341 Phil. 615
[1997], citing People v. Pineda, 127 Phil. 150 [1967]). Prosecuting officers have equally the
duty not to prosecute when after investigation or reinvestigation they are convinced that
the evidence adduced was not sufficient to establish a prima facie case (Crespo v. Mogul,
151 SCRA 462 [1987]). Thus, the determination of the persons to be prosecuted rests
primarily with the prosecutor who is vested with discretion in the discharge of this function.
(Dupasquier v. Court of Appeals, G.R. No. 112089, January 24, 2001)

Certification as to the holding of preliminary investigation is not an essential part of the information
itself and its absence cannot vitiate it as such. True, as already stated, Section 14 of Rule 112 enjoin
that no information shall be filed, without first giving the accused a chance to be heard in a
preliminary investigation, but, as can be seen, the injunction refers to the non-holding certification.
In other words, what is not allowed is the filing of the information without a preliminary
investigation having been previously conducted, and the injunction that there should be a
certification is only a consequence of the requirement that a preliminary investigation should first
be conducted. (People v. Marquez, 27 SCRA 808)
 The secretary of justice, who has the power of supervision and control over prosecuting
officers, is the ultimate authority who decides which of the conflicting theories of the
complainants and the respondents should be believed. The provincial or city prosecutor has
neither the personality nor the legal authority to review or overrule the decision of the
secretary. ( Community Rural Bank of Guimba (N.E.), Inc. v. Talavera, 455 SCRA 34)

It is only where the decision of the Justice Secretary is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction that the Court of Appeals may take cognizance of
the case in a petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure. The
Court of Appeals decision may then be appealed to the Supreme Court by way of a petition
for review on certiorari. (Asetre v. Asetre, G.R. No. 171536, April 7, 2009)

The resolution of the Secretary of Justice determining probable cause during preliminary
investigation is final. The only remedy is to file a petition for certiorari under rule 65 of the
Rules of Court, not under Rule 43. The Court of Appeals may review the resolution of the
Secretary of Justice solely on the ground of grave abuse of discretion amounting to excess or
lack of jurisdiction. Courts are not empowered to substitute their own judgment for that of
the executive branch. (Alcaraz v. Gonzales, G.R. No. 164715, September 20, 2006)

The Court has adopted a policy of non-interference in the conduct of preliminary

investigations and leaves to the investigating prosecutor sufficient latitude of discretion in
the determination of what constitutes sufficient evidence as will establish probable cause
for the filing of information against the supposed offender. However, there are settled
exceptions. Hence, the principle of non-interference does not apply when there is grave
abuse of discretion which would authorize the aggrieved person to file a petition for
certiorari and prohibition under Rule 65, 1997 Rules of Civil Procedure. (Sy Thiong Shiou vs
Sy Chim, G.R. No. 174168, March 30, 2009)

As provided under Memorandum Circular No. 58, no appeal from or petition for review of
decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal
cases shall be entertained by the Office of the President, except those involving offenses punishable
by reclusion perpetua to death. (Angeles v. Gaite, G.R. No. 176596, March 23, 2011)

The RTC judge, upon the filing of an Information, has the following options: (1) dismiss the
case if the evidence on record clearly failed to establish probable cause; (2) if he or she finds
probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of
probable cause, order the prosecutor to present additional evidence within five days from
notice, the issue to be resolved by the court within thirty days from the filing of the
information. It bears stressing that the judge is required to 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. (Elvira O. Ong v. Jose
Casim Genio, G.R. No. 182336, December 23, 2009)

If the judge finds probable cause, then he is mandated by law to issue a warrant of arrest.
While before, it was mandatory for the investigating Judge to issue a warrant for the arrest
of the accused if he found probable cause, the rule now is that the investigating Judges
power to order the arrest of the accused is limited to instances in which there is a necessity
for placing him in custody in order not to frustrate the ends of justice. (Pangan v. Ganay, 445
SCRA 574)

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court
any disposition of the case as its dismissal or the conviction or acquittal of the accused rests
in the sound discretion of the Court. Although the fiscal retains the direction and control of
the prosecution of criminal cases even while the case is already in Court he cannot impose
his opinion on the trial court. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or that the motion was filed after
a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records
of the investigation. (Crespo v. Mogul, 151 SCRA 462)

The trial court must make an independent evaluation or assessment of the merits of the
case and the evidence on record of the prosecution. The trial court may make an
independent assessment based on the affidavits and counter-affidavits, documents, or
evidence appended to the Information; the records of the public prosecutor which the court
may order the latter to produce before the court; or any evidence already adduced before
the court by the accused at the time the motion is filed by the public prosecutor. It should
not rely solely and merely on the findings of the Public Prosecutor or the Secretary of Justice
that no crime was committed. The trial court is not bound to adopt the resolution of the
Secretary of Justice since it is mandated to independently evaluate or assess the merits of
the case and it may either agree or disagree with the recommendation of the Secretary of
Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication
of the trial courts duty and jurisdiction to determine a prima facie case. (Santos v. Orda, Jr.
437 SCRA 504)
While the Secretary of Justice has the power to alter or modify the resolution of his
subordinate and thereafter direct the withdrawal of a case, he cannot, however, impose his
will on the court. (Dumalo v. Ponferrada, 508 SCRA 426)

Crespo v. Mogul did not foreclose the power or authority of the secretary of justice to
review resolutions of his subordinates in criminal cases. The justice secretary's power of
review may still be availed of despite the filing of an information in court. (Filemon Verzano,
Jr. v. Francis Victor D. Paro, G.R. No. 171643, August 8, 2010)

Rule 112 does not require a confrontation between the parties. Since confrontation
between the parties is not imperative, it follows that it is not necessary that the counter-
affidavit of respondent be sworn to before the investigating prosecutor himself. It can be
sworn to before another prosecutor. Paragraph (c) of Sec. 3 states that the affidavits shall
be subscribed and sworn to before any prosecutor or government official or in their absence
or unavailability, before a notary public. Also, under paragraph (e) of Section 3, the conduct
of clarificatory questioning is discretionary upon the prosecutor. (Sierra v. Lopez, A.C. 7549,
August 29, 2008)

By filing his counter-affidavit and answering the charges against him, the petitioner is
deemed to have submitted himself to the jurisdiction of the Ombudsman. Having allowed
the proceedings to go on until the preliminary investigation was terminated and the
Information filed at the Sandiganbayan, petitioner is deemed to have waived whatever right
he may otherwise have to assail the manner in which the preliminary investigation was
conducted. Consequently, petitioner is likewise estopped from questioning the validity of
the Information filed before the Sandiganbayan. (Bautista v. Sandiganbayan, G.R. No.
136082, May 12, 2000)

A complaint is substantially sufficient if it states the known address of the respondent, it is

accompanied by complainants affidavit and his witnesses and supporting documents, and
the affidavits are sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or in their absence or unavailability, a notary public who
must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits. Absence of an oath in the complaint
does not necessarily render it invalid. Want of oath is a mere defect of form, which does not
affect the substantial rights of the defendant on the merits. In this case, Weltss Complaint-
Affidavit contains an acknowledgement by Notary Public Nicole Brown of the State of New
York that the same has been subscribed and sworn to before her on February 12, 1998, duly
authenticated by the Philippine Consulate. (Sasot v. People)