RULE 112 – PRELIMINARY
INVESTIGATION
Q-1: What is Preliminary Investigation
(PI)?
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.
Q-2: What quantum of evidence
required for purposes of PI?
The quantum of evidence
required in preliminary investigation is
such evidence sufficient to “engender a
well-founded belief” as to the fact of the
commission of a crime and the
respondent’s probable guilt thereof
Q-3: How to determine probable
cause?
Probable cause 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.
The determination of its
existence lies within the discretion of the
prosecuting officers after conducting a
preliminary investigation upon complaint
of an offended party.
Q-4: What is the purpose of PI?
1. To determine if 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.
2. To protect the accused from the
inconvenience, expense, and
burden of defending himself in a
formal trial unless the
reasonable probability of his guilt
shall have been first ascertained
in a fairly summary proceeding
by a competent officer.
3. 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.
4. To protect the state from having to
conduct useless and expensive trials.
Q-5: Is double jeopardy applicable in
PI?
No. It is settled that the dismissal
of a case during its preliminary
investigation does not constitute double
jeopardy in the event of a re-
investigation or the filing of a similar
case since a preliminary investigation is
not part of the trial and is not the
occasion for the full and exhaustive
display of the parties' evidence but only
such as may engender a well-grounded
belief that an offense has been
committed and accused is probably
guilty thereof.
Q-6:What are the natures of
Preliminary investigation?
1. A PI is a mere inquiry or a
proceeding. It is not
therefore, a trial and so does
not involve the examination
of witnesses by way of direct
or cross-examinations.
2. In the conduct of PI, 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.
3. Stated otherwise, the
prosecutor in a PI does not
determine the guilt or
innocence of the accused.
He does not exercise
adjudication nor rule-making
functions. PI is merely
inquisitorial, and is often the
only means of discovering
the persons who may be
reasonably charged with a
crime and to enable the
fiscal to prepare his
complaint or information.
Q-7: What is the nature of PI a right?
It is a statutory right and may be
waived expressly or by silence. The right
to a PI maybe waived for failure to
invoke the right prior to or at the time of
the plea.
The holding of a PI is not
required by the Constitution. It is not a
fundamental right and is not among
those rights guaranteed in the Bill of
Rights. The right thereto is of a statutory
character and may be invoked only
when specifically created by statute. But
while the right is statutory rather than
constitutional, since it has been
established by statute, it becomes a
component of due process in criminal
justice.
When so granted by statute, the
right is not a mere formal or technical
right. To deny the claim of accused to a
PI would be to deprive him the full
measure of his right to due process.
“It is also not an element of due
process, unless it is expressly granted
by law.”?
Q-8: What is the coverage for PI?
Preliminary investigation is
merely inquisitorial and it is often the
only means of discovering whether the
offense has been committed and the
persons responsible for it to enable the
fiscal to prepare his complaint or
information. It is not a trial on the merits
and has no purpose but to determine
whether there is probable cause to
believe that an offense has been
committed and that the accused is
probably guilty of it. It does not place the
accused in jeopardy.
Q-9: Who are the officers authorized
to conduct PI?
1. Provincial or city prosecutors
and their assistants
2. Judges of the MTCs
3. National and Regional State
Presecutors
4. Comelec with respect to election
offenses
5. Ombudsman with respect to
Sandiganbayan offenses and
other offenses committed by
public officers
6. PCGG with respect to ill-gotten
wealth cases
Q-10: When does PI commence?
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 four (4) years, two (2) months and
one (1) day without regard to the fine.
Q-11: What are the contents of a
complaint for purposes of PI, How
many copies should be prepared, its
accompanying documents?
The complaint shall state the address of
the respondent and shall be
accompanied by the affidavits of the
complainant and his witnesses, as well
as other supporting documents to
establish probable cause. They shall be
in such number of copies as there are
respondents, plus two (2) copies for the
official file. The affidavits shall be
subscribed and sworn to before any
prosecutor or government official
authorized to administer oath, or, in their
absence or unavailability, before a
notary public, each of who must certify
that he personally examined the affiants
and that he is satisfied that they
voluntarily executed and understood
their affidavits.
Q-12: After having obtained a
complaint and its accompanying
documents, what could be the steps
an Investigating Officer might
perform? When?
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.
Q-13: In what manner should
subpoenas be served?
The subpoena will be accompanied with
the copy of the complaint and its
supporting affidavits and documents.
Q-14: After having receipt of
subpoena, what are the options left to
the respondent? When?
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.
Q-15: is motion for extension of time
to file Counter Affidavit allowed?
Yes, since the ROC are to be
liberally construed, the respondent
should be allowed, through a proper
motion, to have the proceedings
reopened to allow him to submit his
counter-affidavit, and the affidavits of his
witnesses and other evidence he may
present. The motion, however, should
be done before the prosecutor has
issued a resolution in the case. Further,
such motion should contain an
explanation for the failure to timely file
the counter-affidavit.
Q-16: Is motion to dismiss allowed to
be filed in lieu of affidavit?
No. The respondent shall not be
allowed to file a motion to dismiss in lieu
of a counter-affidavit.
Q-17: What if respondent could not
be subpoenaed, or does not submit
his counter affidavit?
If the respondent cannot be
subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten
(10) day period, the investigating officer
shall resolve the complaint based on the
evidence presented by the complainant.
Q-18: Is clarificatory hearing
mandatory? What are the dos and
donts during clarificatory hearing?
No. 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.
This provision states:
 (e) If the investigating personally examined the complainant
officer believes that and his witnesses; that there is
there are matters to reasonable ground to believe that a
be clarified, crime has been committed and that the
he may set a hearing accused is probably guilty thereof; that
to propound the accused was informed of the
clarificatory complaint and of the evidence submitted
questions to the against him; and that he was given an
parties or their opportunity to submit controverting
witnesses, during evidence. Otherwise, he shall
which the parties recommend the dismissal of the
shall be afforded an complaint.
opportunity to be
present but without Q-21: What is the period to conduct
the right to examine PI?
or cross-examine.
[15]
xxx (emphasis A preliminary investigation is
supplied) required to be conducted before the
filing of a complaint or information for an
The use of the word may in a offense where the penalty prescribed by
statute commonly denotes that it is law is at least four (4) years, two (2)
directory in nature. The term may is months and one (1) day, without regard
generally permissive only and operates to the fine.
to confer discretion.[16] Under Section
3(e) of Rule 112, it is within the Q-22: Explain the confidentiality
discretion of the investigation officer requirements for PI.
whether to set the case for further
hearings to clarify some matters. All resolutions prepared by an
investigating prosecutor after preliminary
Q-19: Is right to counsel observed investigation, whether his
during PI? recommendation be for the filing or
dismissal of the case, shall be held in
No, preliminary investigation is strict confidence and shall not be made
a summary proceeding and is merely known to the parties, their counsels
inquisitorial in nature and/or to any unauthorized person until
> The accused cannot yet fully the same shall have been finally acted
exercised his rights upon by the Chief State/Regional
> However, if a confession is to be State/Provincial/City Prosecutor or his
obtained from respondent, an duly authorized assistant and approved
uncounselled confession would be void for promulgation and release to the
parties.
Q-20: When is case deemed
submitted for Resolution? “To protect him from an open and
public accusation of a crime, from
If the investigating prosecutor
the trouble, expenses and anxiety
finds cause to hold the respondent for
of a public trial.”
trial, he shall prepare the resolution and
information. He shall certify under oath
Q-23: What could be the possible
in the information that he, or as shown
courses of action of the
by the record, an authorized officer, has
city/provincial/PROSGEN on the
recommendatory resolution?

Within five (5) days from his

resolution, he shall forward the record of
the case to the provincial or city
prosecutor or chief state prosecutor, or
to the Ombudsman or his deputy in
cases of offenses cognizable by the
Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the
resolution within ten (10) days from their
receipt thereof and shall immediately
inform the parties of such action.

No complaint or information may

be filed or dismissed by an investigating
prosecutor without the prior written
authority or approval of the provincial or
city prosecutor or chief state prosecutor
or the Ombudsman or his deputy.

Where the investigating

prosecutor recommends the dismissal of
the complaint but his recommendation is
disapproved by the provincial or city
prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the
ground that a probable cause exists, the
latter may, by himself, file the
information against the respondent, or
direct any other assistant prosecutor or
state prosecutor to do so without
conducting another preliminary
investigation.

Q:24: What are the recourses of the

complainant if case is dismissed?

The aggrieved party under

current practice is not precluded from
filing a motion for reconsideration within
15 days from receipt of the assailed
resolution. If the motion is denied, the
aggrieved party may appeal within 15
days from the denial of the motion for
reconsideration.