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SECTION 3

PROCEDURE
PORCEDURAL STEPS:
1. Filing the Complaint
2. Action of the complainant
3. Counter-Affidavit and other supporting evidence
4. Respondent cannot be subpoenaed
5. Hearing
6. Determination by investigating prosecutor

Filing of the Complaint


The complaint filed with the office of the investigating officer for the purposes of
Preliminary Investigation must be accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents.
a.) Complaint should state address of the respondent, accompanied by affidavits of the complaint
and his witness and other supporting documents to establish probable cause
b.) Copies: numbers of the respondents (how many) + 2 copies for the official file.
c.) Affidavits shall be subscribed and sworn before any prosecutor or government authorized to
administer oath, or notary public.
-officer to whom affidavits are sworn must: personally examine the affiants and
should be satisfied that they voluntarily executed and understood their affidavits.

Action of the complainant


Within 10 days after filing the investigative officer may:
a.) DISMISS: when finds no ground to continue with the investigation
b.) TO ISSUE to respondent: when there is a ground. Subpoena and complaint and
supporting affidavits.
**Respondents shall have the right to examine the evidence submitted and to copy it at his
expense. Object evidence shall be available for examination.

Counter-Affidavit and other supporting evidence


Within 10 days after receipt of subpoena, respondent shall submit his counter affidavit
and that of his witness and other supporting documents. BUT he cannot be compelled to submit.
- must be subscribed, sworn and certified.
- Respondent NOT ALLOWED to file motion to dismiss.
Respondent cannot be subpoenaed
If not subpoenad or does not submit counter affid within 10 days, investigating officer
shall resolve the complaint based on the evidence presented by the complainant.
CASES:
Rodreiguez vs Sandiganbayan (120 SCRA 659)
Rodis, Sr. vs Sandiganbayan (166 SCRA 618)

Hearing

 Investigating officer may set a hearing if there are facts and issues to be clarified.
 Parties can be present at the hearing BUT without right to examine or cross-examine.
BUT they may submit to the investigating officer questions which may be asked to the
party or witness concerned.
 Hearing shall be held within 10 days from submission of affids and documents of
expiration of 10 days to submit the same. -terminated in 5 days
CASE: (Sierra v Lopez 563 SCRA 658)

Determination by investigating prosecutor


10 days after, the investigating officer shall determine won there is sufficient ground to
hold the respondent for trial.
CASES:
Cruz vs Salva (105 SCRA 1151)
Guzman vs People (119 SCRA 337)
Doce vs Branch II CFI of Quezon (22 SCRA 324)
Bermejo vs. Barrios (31 SCRA 746)

 The proceedings are considered as judicial in nature and not a quasi-judicial proceeding.
 DOJ is not a quasi-judicial agency and is not exercising a quasi-judicial function when it
reviews the findings of public prosecutors regarding presence of probable cause.
-Thus, its findings are not appealable to CA under Rule 43. The same is appealable to
the office of the president.
Probable Cause under Preliminary Investigation

 Is the existence of such facts and circumstances as would excite the 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.
 Determination: a finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed by the suspects.
 GR: Determination is no a SC function. Exp:
A. to afford adequate protection to the consti right of the accused
B. necessary for the orderly admin of justice and avoid multiplicity of suits
C. prejudicial question
D. acts of officer are without or in excess of authority
E. prosecution is under an invalid law, ordinance, regulation
F. double jeopardy is apparent
G. court has no jurisdiction over the case
H. persecution rather than prosecution
I. charges are manifestly false and motivated by revenge or lust
J. clearly no prima facie case against the accused and a motion to quash on that ground has
been denied, and
K. PI has been issued by SC to prevent the threatend and unlawful arrest of petitioners

 It need not be based on clear an convincing evidence of guilt.


 No need to set investigation for clarificatory questioning The decision to call witnesses
for clarificatory questions is addressed to the sound discretion of the investigator and
investigator alone. Remember that PI is not a part trial.
GR: RTC judges no longer have authority to conduct PI since it is not a judicial function but
executive (prosecutor). But they may still conduct a PI for issuance of a warrant of arrest or
search warrant.
Exp: irregularity amounting to lack of PI or no PI at all, TC may conduct its own.

RTC JUDGE Preliminary Investigation To issue warrant (arrest/search)


 Not subject to judicial review except in the
regular course of appeal
 Finding of PP is not binding upon RJ
because of different purpose
 It is not necessary for the RJ to examine all
records of the PI in determining the probable
cause.

Public To file information or not


prosecutor xxxxxxxxxxxxxxxxxx
 If accused does not have counsel during PI- irregularity amounting to lack of PI. Thus,
must be raised before trial. When raised, TC will not dismiss info but will conduct its
own PI or require fiscal to conduct it.
 - Absence/ irregularity of PI is not a ground for motion to quash information
 Court is entitled to discovery procedure during PI. BUT the same is dispensable. 
 The preliminary designation in the offense is only directive of the true nature of the
offense charged.
 PI ex parte.
o Presence of the accused in the PI is not mandatory. What is important is that
efforts were made to reach him.
o However, accused is still entitled to be notified of the proceedings.
o Absent notification- irregular PI.

 PI must be COMPLETED
 Motion for reconsideration/ reinvestigation
o Filed by a accused in an irregular PI before the information is filed in court.
o If info already filed in court, motion shall not be entertained EXCEPT when the
court orders otherwise.
 Under Military law, PI is governed by the Articles of war. Charges and specifications
must be signed by a person subject to military law, and under oath either that he has
personal knowledge of, or has investigated the matters set forth therein and that the same
are true in fact, to the best of his knowledge and belief.