Rule 112 - Preliminary Investigation

Section 1
Preliminary Investigation
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.

When required
Where the penalty prescribed by law is at least 4-years, 2- months and 1-day without regard to the fine. PI is required to be
conducted before the filing of a complaint or information.

Except when accused was lawfully arrested without warrant, provided an inquest has been conducted. However, the person
arrested may ask for PI but he must sign a waiver of the provisions of Article 125 Delay in the delivery of detained persons to
the proper judicial authorities, in the presence of his counsel.

Purpose: To prevent the case in reaching the court

PI is a statutory right which is a component of due process

If denied by the court the judgment shall be void
Must be entered before arraignment
Penalty for jurisdictional enlarged to be not exceeding 6k (all lower level court)

Section 2
Authorized to Conduct PI
Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their
respective territorial jurisdictions.
a. Provincial / City Prosecutors and their Assistants;
b. National and Regional State Prosecutor;
c. Other officers as may be authorized by law.

Not a judicial function by an executive function

Section 3
Procedure
Battle of affidavits; this is an inquisitorial proceeding

A. The complaint shall:

a. State address of the respondent;
b. Accompanied by the affidavits of the complainant and his witness;
c. Other supporting documents to establish probable cause; Note:

this refers to Complaint-affidavit.

Copies Required
They shall be in two copies for official file and as many copies as there are respondents.

Complaint-affidavit must be Sworn

Affidavits shall be subscribed and sworn to before:
a. Any prosecutor; or
b. Gov’t official authorized to administer oath
c. Notary public in absence / unavailability of (a) or (b).
He must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood
their affidavits.

Note: This also applies when no PI is needed and a complaint was filed to prosecutor.

B. Within 10 days AFTER the filing of the complaint, the investigating officer shall either:
a. Dismiss it if he finds no ground to continue the investigation; or
b. Issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

Right to Examine the Unfurnished Evidence

 The respondent shall have the right to examine the evidence submitted by the complainant.
 Copy them at his expense.

Voluminous Evidence
 The complainant may be required to specify those which he intends to present against the respondent.
 These shall be made available for examination or copying by the respondent at his expense
 C. Within 10 days FROM receipt of the subpoena
The respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied
upon for his defense.

Copies thereof shall be furnished by the respondent to the complainant.

Respondent not allowed to file a motion to dismiss in lieu with the counter affidavit.

Motion to Quash : YES (Rule 117) may be filed before arraignment

Under the amendment NOT MORE THAT 6 YEARS REGARDLESS OF THE AMOUNT OF FINE

Motion to dismiss

Affidavits shall be subscribed and sworn to before:

a. Any prosecutor; or
b. Gov’t official authorized to administer oath
c. Notary public in absence / unavailability of (a) or (b).

Motion to Dismiss
Filing of it is not allowed in lieu of a counter-affidavit.

Note: The respondent may file a motion to quash. Under the rules, a motion to quash is allowed on or before
arraignment.

D. Resolving the complaint based on the evidence presented by the Complainant

The investigating officer shall resolve the complaint, if:
a. The respondent cannot be subpoenaed;
b. If subpoenaed but does not submit a counter-affidavits within the 10-day period.

E. Hearing (Clarificatory Hearing)

It shall be held within 10-days FROM:
 Submission of the counter-affidavits and other documents; OR
 The expiration of the period for their submission.

Purpose
The investigating officer may set a hearing if there are facts and issues to be clarified from a party or witness.

The parties may submit to the investigating officer questions which may be asked to the part or witness. The parties can

be present at but without the right to examine or cross-examine.

Termination
It shall be terminated within 5-days.

F. Within 10-days AFTER the investigation

The investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4 Resolution
of Investigating Prosecutor and
its Review

Resolution of Investigating and Prosecutor

The investigating prosecutor shall prepare:
Resolution Information
With PC Yes Yes
Without Yes No
PC
Contents of the Resolution
With PC Without PC
He shall prepare the resolution and information and He shall
shall certify under oath in the information that: prepare the resolution recommending the dismissal of
 He has the
personally examined the complainant and his complaint.
witness.
 There is reasonable ground
to believe that a crime has been
committed andthe
accused is probably guilty thereof.
 The accused was informed of the
complaint and of the
evidence submitted against him.
 The accused was given an opportunity to
submit controverting evidence.

Transmittal of the Case

Within 5 days FROM the resolution of the investigating prosecutor, he shall forward the record of the case to the
a. provincial or city prosecutor; or
b. chief state prosecutor; or
c.to the Ombudsman or his deputy. (in cases falling within its original Jurisdiction)

No complaint or information may be filed or dismissed by an investigating prosecutor without their prior written authority or
approval.

Review of Prosecutor’s Resolution

Within 10 days FROM receipt of the resolution, they shall act on the it and shall immediately inform the parties of such action.

Investigating Prosecutor recommends dismissal of the Complaint

The prosecutor (or Ombudsman or his deputy), to whom the resolution was forwarded, disapproved the recommendation for
dismissal on the ground that a PC exists, he may,
a. file the information against the respondent; or
b. direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

Appeal to the Secretary of Justice

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary
of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to
dismiss or move for dismissal of the complaint or information with notice to the parties.

The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
 Section 5
When Warrant of Arrest May Issue

a. By the Regional Trial Court

Within 10-days FROM the filing of the complaint or information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence.

a. If the evidence on record failed to establish probable cause

He may immediately dismiss the case.

b. If he finds probable cause

He shall issue a:
a. Warrant of Arrest; or
b. Commitment Order*

*Accused already arrest, when the complaint or information was filed pursuant to Sec. 6. Rule 112.
Persons lawfully arrested without warrant

c. In case of doubt on existence of PC

The judge may order the prosecutor to present additional evidence within 5-days FROM notice.

The issue must be resolved by the court within 30-days FROM the filing of the complaint of information.

b. By the Municipal Trial Court

The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.

When the case requires PI

The prosecutor shall conduct the PI when it is required.

Warrant of Arrest not Necessary

A warrant of arrest shall not issue and the court shall then proceed in the exercise of its original jurisdiction in the
following instances:
1. if the accused is already under detention pursuant to a warrant issued by the MTC;
2. When the complaint or information was filed pursuant to Section 6 of this Rule; or
3. When the offense is penalized by fine only.
 Section 6
When Accused Lawfully Arrested Without Warrant

When accused lawfully arrested without warrant

The complaint or information, for offenses which requires PI, may be filed, by the prosecutor, without need of PI if:
1. the person is lawfully arrested without a warrant; and;
2. an inquest has been conducted.

When there is no Inquest Prosecutor

In the absence or unavailability of an inquest prosecutor, the complaint or information may be filed, directly with the
proper court, may be filed by:
a. offended party; or
b. a peace officer

Such complaint or information shall be based on the affidavit of the offended party or arresting officer or person.

Summary
The Prosecutor Offended Party or Peace
Officer

When the accused was inquest. In the

absence or unavailability of an inquest prosecutor,
on the basis of his
affidavit.
(Directly)

What is filed
Complaint or information
information

Request for PI by the

Person Lawfully Arrested without Warrant

Before the Complaint or After the filing of Complaint or Information*

Information is filed
 He may ask for the conduct of PI. However, he must The accused may ask for PI within 5 days from the
sign a waiver of provisions of Article 125 ROC, as time he
amended, in the presence of his counsel. learns the filing of the complaint or information.

 The PI must be terminated within 15 days from its He has the same right to adduce evidence
inception. in his defense.

 He may still apply for bail, despite executing the waiver.

* In this case, the court already assumed jurisdiction over the to Conduct PI to the case, hence, accused should address his
Motion court

Section 7
Records

a. Records supporting the Complaint or Information

An information or complaint filed in the court shall be supported by the:
a. Affidavits and counter-affidavits parties and their witnesses;
b. Other supporting evidence; and
c. Resolution on the case.

b. Record of Preliminary investigation

The record of the PI conducted by a prosecutor or other officers as may be authorized by law, 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:
1. necessary in the resolution of the case or any incident therein; or
2. it is to be introduced as an evidence in the case by the requesting party.

Section 8
Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure

a. If filed with the prosecutor

An offense punishable by imprisonment of less than 4-years, 2-months and 1-day, the procedure in Section 3(a) Rule 112
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.

Application: The judge will only based his order based on the affidavit of the complainant.

Dismissal of the Complaint or information

The judge shall dismiss the C/I if, within ten (10) days after its filing, he 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.

Tabujara v. People
Issuing warrant of arrest without personally examining in writing and under oath and in the form of searching questions
and answers and based it solely on statement of witness is a grave abuse of discretion.

Submission of Additional Evidence

The judge, thru a notice, may require the submission of additional evidence to determine further the existence of probable
cause.

When to be submitted
Within ten (10) days from notice.

Within 10 days from submission of additional evidence or expiration said period, the judge shall:
a. Dismiss the case if he still finds no probable cause despite the additional evidence.
b. Issue either of the following, when he finds probable cause
a. a warrant of arrest; or
b. a commitment order if the accused had already been arrested and hold him for trial.

Summons in lieu of Warrant of Arrest

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.
Instances when PI is not Required
a. When penalty of imprisonment prescribed by law is less least 4-years, 2- months and 1-day;
b. Cases falling under the rules of summary procedure;
c. When the offense is punishable by special laws and such law dies not require the conduct of PI;
d. Where the charter of the city does not require PI;
e. When the person was lawfully arrested without a warrant.

Ladlad v. Velasco
Inquest proceedings are proper only when the accused has been lawfully arrested without a warrant.

Note: Person has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted
instead of PI

Annotated
Preliminary Investigation
 It is not a trial and does not involve examination of witnesses by way of direct or cross-examinations.
 Prosecutor does not exercise adjudication nor rule making function. Thus, it does not determine the guilt or innocence of
the accused.
 It is an executive function.

Purpose
To determine whether or not:
1. A crime has been committed; and
2. The respondent is probably guilty of the crime. (probable cause)

Question: Is the respondent probably guilty and therefore should go to trial?

A Statutory Right
It is statutory in character and may be invoked only when specifically created by statute. It is not

required by the constitution and not among those rights guaranteed in the BOR.

However, it is a component of due process in criminal justice. Thus, it is a substantive right.

It is Waivable Right
 It may be waived expressly or impliedly.
 It is deemed waived if the accused failed to invoke the same prior to or at the time of the plea.

Questioning the absence or regularity of a PI

Application for or admission to bail does not bar the accused from questioning the absence or regularity of a PI.

However, the accused must do so before he enters his plea. Failure to invoke the right before entering a plea will amount
to waiver.

Absence or Irregularity of a PI not a ground for motion to quash

Absence of PI is not one of the grounds for a motion to quash, hence it is not a proper remedy to dismiss the information. (3,
117)

Absence of preliminary investigation

It does not affect the court’s jurisdiction over the case nor does it impair the validity of the information.

Likewise, denial of motion for investigation cannot invalidate the information or oust the court of its jurisdiction over the case.

Remanding the Cases to the Prosecutor

If there is no preliminary investigation and the accused before entering his plea calls invokes the same, the court should remand
the case to the prosecutor for PI not dismiss the information.

Required Evidence in finding of Probable Cause in PI

Only as may engender a well-founded belief that an offense has been committed and that the accused is probable guilty.
Note: the following are ventilated during the trial proper
 validity and merits of accusation or defense
 admissibility of testimonies and evidence.

Authority of the Prosecutor / Investigating Officer

His authority during the PI is that of a municipal judge or trial court judge. He is considered to be a quasi- judicial officer.

Note: In effect PI is a realistic judicial appraisal of the merits of the case.

Preliminary Preliminary
Investigation Examination
Executive function Judicial function

Conducted by Conducted
prosecutor by judge
To ascertain whether the alleged offender To determine probable cause for the issuance of a
should be held for trial. warrant of arrest.

Quasi-judicial body
An organ of the gov’t other than the court and other than a legislature which affects the rights of private parties and their
decisions have the same effect as judgment of a court.

PI as a Judicial Proceeding/Judicial Inquiry

An act becomes a judicial proceeding when there is an opportunity to be heard and for the production of and weighing of
evidence and a decision is rendered thereon.

PI not appealable under Rule 43

The decision of the prosecutor of filing a criminal complaint are not appealable under Rule 43.

Sec. 1. Rule 43 provides that, those decisions, resolutions, orders, judgment of quasi-judicial agencies, in exercise of their
judicial functions, which may be appealed to CA. The DOJ is not among those enumerated agencies.

Probable Cause
The existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest
and strong suspicion that the person charged is guilty of the crime subject of the investigation.

A finding of probable cause merely binds over the suspects to stand trial. It is not a pronouncement of guilt. Requires more
than bare suspicion but less than evidence which would justify a conviction.

Kinds of determination of Probable Cause

Executive determination Judicial determination

One made by the prosecutor during the preliminary One made by thejudge to ascertain whether
investigation. a
warrant of arrest should be issued against the
accused in order not to frustrate the
ends of justice.

Probable Cause
Facts and circumstances as would lead a person Factsand circumstances that would lead a reasonably
of ordinary caution and discreet and prudent man to believe that an offense
prudence to entertain an honest and strong has been committed by the person to be
suspicion that the person charge is guilty of the crime arrested.
subject ofthe investigation.

Man of Reasonable Caution

Reference is not to a person with training in the law such as a prosecutor or a judge but the average man on the street.

He relies on the calculus of common sense of which all reasonable men have an abundance. As an average man weighs facts
and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil.

Instances when Finding of Probable Cause is Necessary

1. In filing of an information
Facts and circumstances that would engender a well-grounded belief that a crime has been committed and the person to be
charged is probably guilty thereof.
2. In the issuance of a search warrant
Facts and circumstances that would lead a reasonable discreet and prudent man to believe that there has been a crime
committed and the things and objects connected to the crime committed are in the place to be searched.
3. In the issuance of warrant of arrest
Facts and circumstances that would engender a well-grounded belief that a crime has been committed and the person to be
arrested committed it.

Courts may not Override the Prosecutor’s Finding of Probable Cause

Whether or not the Prosecutor has made a correct ascertainment of the existence of probable cause is a matter that the
trial court does not and may not be compelled to pass upon.

If the information is valid on its face and not manifest error or grave abuse of discretion, the court must respect the exercise
of discretion by the prosecutor.

When the Judge is not Satisfied in the Findings of the Prosecutor

The judge still cannot override the prosecutor’s determination of probable cause. However, he may not be forced to issue the
arrest warrant.

Persons who may conduct PI and determine existence of probable cause

a. Provincial or City Prosecutors and their assistants;
b. National and Regional State Prosecutors; and
c. Other officers as maybe authorized by law
d. Duly authorized legal officers of Comelec
e. The Office of the Ombudsman
f. Presidential Commission on Good Government

Section 265 of the OEC

The COMELEC, through its duly authorized legal officers, has the exclusive power to conduct the preliminary
investigation of all election offenses punishable under the OEC and to prosecute the same.

The COMELEC may avail itself of the assistance of other prosecuting arms of thegovernment. Section 2,

Rule 34 of the COMELEC Rules of Procedure

The continuing delegation of authority to other prosecuting arms of the government, which authority,
however, may be revoked or withdrawn at any time by the COMELEC in the proper exercise of its judgment.

Section 10, Rule 34 of the COMELEC Rules of Procedure

Comelec has the power to motu proprio revise, modify and reverse the resolution of the Chief State prosecutor and /or
provincial/ city prosecutors.

Sec 43 RA 9369
The power of the COMELEC to investigate and prosecute election offenses is now concurrent with the other prosecuting
arms of the government. The other prosecuting arms of the government, it is humbly submitted no longer need to be
deputized by the COMELEC. The original provision of Art. 265 of the Omnibus Election Code provided that the
COMELEC, through its legal officers, "have the exclusive power to conduct preliminary investigation of all election
offenses.

Office of the Ombudsman

The authority to investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.

It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it
may take over, at any stage, from any investigatory agency of the government, the investigation of such cases.

It 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.

Presidential Commission on Good Government

With the assistance of the Office of the Solicitor General and other government agencies is empowered to investigate, file and
prosecute cases investigated by it (Executive Order No. 14, May 7,1986).
Procedure for PI must be strictly followed
The right to a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming part of due
process in criminal justice.

Initial steps
It is the filing of the complaint with the investigating prosecutor that starts the preliminary investigation process.
Actual application, the complaint is initiated through an affidavit of complaint. The complaint must:
1. State address of the respondent.
2. Accompanied by the affidavits of the complainant and his witness.
3. Other supporting documents to establish probable cause.
4. Two copies for official file and as any copies as there are respondents.
5. Affidavits shall be subscribed and sworn to before:
a. Any prosecutor; or
b. Gov’t official authorized to administer oath
c. Notary public in absence / unavailability of (a) or (b).
(this is a hierarchy)
He must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.

Complaint
Sec 3a. Rule 112 Sec 3 Rule
110
Purpose of conducting a PI Purpose of instituting a criminal
prosecution

Complaint affidavit Complaint

Affidavit treated as a component of the Stands by

complaint itself for prosecution of criminal
charge

Under the Under the

name of the complainant name of the Republic

Subscribed and sworn to

It is a hierarchy with respect to persons before whom the affidavits may be subscribed and sworn to.

It is not a mere perfunctory or mechanical duty, he is obligated to conduct a personal examination of the affiants and to
certify that he personally examined the latter and he is satisfied that they voluntarily executed and understood their affidavits.

Within 10-days Dismissal of the complaint or issuance of a subpoena

From the filing of the complaint, the investigating officer has ten (10) days within which to decide which of the following
options to take:
a. To dismiss the complaint if he finds no ground to conduct the investigation; or
b. To issue a subpoena to the respondent in case he finds the need to continue with the investigation, in which case the
subpoena shall be accompanied with a copy of the complaint and its supporting affidavits and documents.

Filing of counter-affidavit by the respondent; no motion to dismiss

The respondent who receives the subpoena, the complaint, affidavits and other supporting documents, is not allowed to file a
motion to dismiss in lieu of a counter-affidavit.

Instead, within ten (10) days from receipt of the subpoena, he is required to submit his counter-affidavit, the affidavits of his
witnesses and the supporting documents relied upon for his defense.

It is a common practice to allow the filing of a reply to the counter-affidavit usually denominated as a reply- affidavit. The
respondent may likewise rebut the reply-affidavit through a rejoinder-affidavit.

Action to be taken if the respondent does not submit his counter-affidavit

The investigating officer shall resolve the complaint based on the evidence presented by the complainant. The same rule shall
apply in case the respondent cannot be subpoenaed.

This situation would have the effect of an ex parte investigation because the respondent cannot or does not participate in the
proceedings.

Since the Rules of Court 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.

Clarificatory hearing
A hearing may be set by the investigating officer, if there are facts and issues to be clarified either from a party or a witness.
a. Within ten (10) days from the submission of the counter-affidavit, other affidavits and documents filed by the respondent,
 or
b. Within ten (10) days from the expiration of the period for their submission.

No right of cross-examination
The parties can be present at the hearing but do not have the right to examine or cross- examine each other or the witnesses. If
they have questions to ask, they shall submit the questions to the investigating officer who shall ask the questions to the party
or witness concerned.

Termination of the Clarificatory Hearing

The hearing shall be terminated within five (5) days.

Determination by the investigating officer

Within ten (10) days from the termination of the investigation, the investigating prosecutor shall determine whether or not
there is sufficient ground to hold the respondent for trial.

Discretion of prosecutor in filing of a criminal complaint or information

Determination of probable cause during a preliminary investigation or reinvestigation is recognized as an executive function
exclusively of the prosecutor.

He is not under the obligation to file a criminal action where he is not convinced based on the evidence at hand. This likewise
applies in reinvestigation.

Mandamus under Rule 65 not appropriate

Since it is a discretion, mandamus as described in Rule 65 does not lie to compel the filling of a complaint or information.

Resolution of Investigating Prosecutor

If investigating prosecutor finds probable cause to hold the respondent for trial, he shall prepare:
1. A Resolution; and
2. The Information

Otherwise, he shall recommend the dismissal of the complaint.

Information
Shall contain a certification by the investigating officer under oath in which he shall certify to the following:
1. that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses,
2. that there is a reasonable ground to believe that a crime has been committed,
3. that the accused is probably guilty thereof,
4. that the accused was informed of the complaint and of the evidence submitted against him, and
5. that he was given an opportunity to submit controverting evidence

Effect of the absence of the required certification

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.

What is not allowed is the filing of the information without a preliminary investigation having been previously conducted.

Forwarding of the records of the case for action; need for approval before filing or dismissal
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. Thus,

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.

Resolution of Prosecutor: Affirmed or Dismissed

The resolution of the investigating prosecutor may be reversed or affirmed by the provincial or city prosecutor or chief
state prosecutor, or the Ombudsman.

Resolution dismissing the complaint was disapproved

On the ground that a probable cause exists, the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy may by himself:
a. File the information against the respondent; or
b. Direct another assistant prosecutor or state prosecutor to do so without conducting PI

The aggrieved party is not precluded from filing a motion for reconsideration within 15 days from receipt of the assailed
resolution.

Appeals to the Secretary of Justice; filing a petition for review (Dept. Circular 70 S 2000)
In cases subject of preliminary investigation or reinvestigation, an appeal may be brought to the Secretary of Justice from the
resolutions of the Chief State Prosecutor, Regional State Prosecutors and Provincial/City Prosecutor.

The Secretary of Justice has the ultimate authority to decide which of the conflicting theories of the complainants and the
respondents should be believed.

When shall be taken, either

a. Within 15-DF receipt of the assailed resolution; or
b. Within 15-DF receipt of denial of motion for reconsideration/reinvestigation (if such was filed) Only one

motion for reconsideration is allowed.

How to appeal
It is made by filing a Petition for Review with the Office of the Secretary of DOJ.

When resolution is reversed or modified by the Secretary of Justice

He shall direct the prosecutor concerned either:
a. to file the corresponding information without conducting another preliminary investigation; or
b. to dismiss or move for dismissal of the complaint or information with notice to the parties.

This may be done upon petition by a proper party or motu proprio by the Secretary of Justice. Asetre v.

Asetre
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.

Appeal is based on “without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction – Rule 65”

Petition for review under Rule 43 not allowed

The rule is that the DOJ is not a quasi-judicial agency exercising a quasi-judicial function when it reviews the findings of a
public prosecutor regarding the presence of probable cause and that its findings are not reviewable by the Court of Appeals in
a petition for review under Rule 43 of the Rules of Court.

43 Appeal to CA
Appeals from judgments or final orders of the Court of Tax Appeals and

Appeals from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions.

This are judicial appeals. DOJ resolution requires an administrative appeal.

Among these agencies are the CSC, Central Board of Assessment Appeals, SEC, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and
Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments, Construction
Industry Arbitration Commission, and voluntary arbitrators authorized by law

65 When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its
or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal,
or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law and justice may require

Appeal to the Office of the President

Memorandum Circular No. 58 dated June 30, 1993 provides that appeals from or petition for review of
"decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal cases are entertained by the
Office of the President" under the following conditions which have to be established as jurisdictional facts:
(a) The offense involved is punishable by reclusion perpetua to death
(b) New and material issues are raised which were not previously presented before the Department of Justice and were
not hence, ruled upon;
(c) The prescription of the offense is not due to lapse within six (6) months from notice of the questioned resolution;
and
(d) The appeal or petition for review is filed within thirty (30) days from notice.
If the appeal does not clearly fall within the jurisdiction of the Office of the President, the appeal shall be dismissed outright.

In the event of an adverse decision against the appellant, a verified petition for review may be taken to the Court of Appeals
within fifteen (15) days from notice of the final order of the Office of the President and following the procedure set forth
under Rule 43 of the Rules of Court.

Then appeal via Rule 45

The party aggrieved by the judgment, final order or resolution of the Court of Appeals may avail of an appeal by certiorari
(petition for review on certiorari) to the Supreme Court under Rule 45.

45 SECTION 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment or
final order or resolution of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever
authorized by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

Records supporting the information or complaint filed in court

a. Records supporting the Complaint or Information
An information or complaint filed in the court shall be supported by the:
a. Affidavits and counter-affidavits parties and their witnesses;
b. Other supporting evidence; and
c. Resolution on the case.

b. Record of Preliminary investigation

Whether conducted by a judge or a prosecutor, shall not form part of the record of the case.

Except when it is:

a. Necessary in the resolution of the case or any incident therein; or
b. To be introduced as an evidence in the case by the requesting party.

Action of the judge upon the filing of the complaint or information

This applies both when the complaint is filed directly (MTC) or an information was filed to the court.

Within 10-days after the filing of the complaint or information, the judge shall personally evaluate the resolution of the
prosecutor. He shall look into its supporting evidence.

In evaluating the judge may find that the evidence:

(a) fails to establish probable cause;
(b) establishes probable cause; or
(c) engenders a doubt as to the existence of probable cause.

Judge finds no probable cause He

shall dismiss the case.

Judge finds probable cause

He shall issue a warrant of arrest or if a complaint or information was already filed pursuant to a lawful warrantless arrest
under Sec. 6 of Rule 112, the court shall issue a commitment order instead of a warrant of arrest.

Judge is in doubt as to the existence of probable cause

Judge may require the prosecutor to submit of additional evidence within 5-days from notice.

The issue must be resolved by the court within thirty (30) days from the filing of the complaint or information

When warrant of arrest is not necessary

(a) When a complaint or information has already been filed pursuant to a lawful warrantless arrest, i.e., if the accused is
already under detention and was lawfully arrested without a warrant and a complaint or information has been filed
pursuant to Sec. 6, Rule 112 (Sec. 5[c], Rule 112, Rules of Court); also when a warrant has already been issued by the
MTC judge pursuant to Sec. 5[b] of Rule 112 and the accused is already detained (Sec. 5(c), Rule 112).

(b) When the accused is charged for an offense punishable only by fine (Sec. 5[c], Rule 112); or

(c) When the case is subject to the Rules on Summary Procedure.

Withdrawal of the information already filed in court

In resolving a motion to dismiss the case or to withdraw the information, either for insufficiency of the evidence or for lack
of probable cause, whether filed before or after arraignment, after a reinvestigation, the court, in the exercise of its
discretion may deny the motion and require that the trial on the merits proceed for the proper determination of the case.

Reason is that, once a criminal complaint or information is filed in court, any disposition of the case or dismissal or
 acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court.

Some judicial pronouncements on preliminary investigation

b. Sierra v. Lopez
Whether the Ruling
parties must appear together before the investigating Rules does not require a confrontation between the parties.
prosecutor during PI Preliminary investigation is ordinarily conducted through
submission of affidavits and
supporting documents, through the exchange of pleadings.

counter-affidavits of the respondents should be sworn it is not necessary that the counter-affidavit of respondent be
to only before the investigating prosecutor sworn to before the investigating prosecutor himself. It can be
sworn to before another
prosecutor.
investigating prosecutor erred in denying the request of the conduct of clarificatory questioning is discretionary upon the
the complainant for clarificatory prosecutor.
questioning

Bautista v. Sandiganbayan
An anonymous, unverified and unsigned letter-complaint was filed with the Ombudsman. The Ombudsman directed the
petitioner to submit his counter-affidavit.

Petitioner assailed the Ombudsman for failing to direct the complainants to reduce their evidence into affidavits before
requiring him to submit his counter-affidavit.

Sec. 4, Rule II, of the Rules of Procedure of the Ombudsman which requires that for purposes of conducting a preliminary
investigation, the complainant must submit his affidavit and those of his witnesses before respondent can be required to
submit his counter-affidavit and other supporting documents.

That despite the Ombudsman's noncompliance with the affidavit requirement, the petitioner filed his counter-affidavit and
answered the charges against him. Hence, he submitted himself to the jurisdiction of the Ombudsman.

The petitioner was deemed to have waived whatever right he may otherwise have to assail the manner in which the
preliminary investigation was conducted.

Consequently, petitioner was likewise estopped from questioning the validity of the information filed before the
Sandiganbayan.

Sasot v. People
In a Special Power of Attorney the President of NBA Properties, Inc., constituted a local law firm, as the company's
attorney-in-fact, to act for and its behalf in the filing of criminal, civil and administrative complaints, among others.

The company president also executed a Complaint-Affidavit before the same notary public of the State of New York.

The petitioners moved to quash the information arguing among others that the rules, the complaint must be sworn to
before the prosecutor.

That a complaint is substantially sufficient if it states the known address of the respondent, it is accompanied by
complainant's 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.

The Court added that the 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.

Inquest Proceedings
It is conducted by a prosecutor in a criminal case where a person has been lawfully arrested and detained without a warrant,
even to offenses which requires PI.

It is not a PI, it is a summary investigation and which does not follow the procedures of PI under Sec. 3 Rule 112.

Purpose
To determine whether or not the person detained should remain under custody and then charged in court.

Who may conduct

It is conducted by a public prosecutor who is assigned inquest duties as an Inquest Officer and is to discharge his duties.

Duty of the Inquest Prosecutor

To determine of the detained person has been arrested lawfully in accordance with Sec. 5 (a) and (b) Rule 113.
When commenced
From the time the inquest officer receives the complaint and referral documents from the law enforcement authorities.
Documents includes:
1. Affidavit of arrest
2. Investigation report
3. Statements of the complainant and witnesses
4. Other supporting evidence gathered.

Note: The affiants shall be subscribed and sworn to before the Inquest Officer.

Presence of the Detained Person during Inquest Proceedings

General rule
The detained person should be present during the inquest proceedings.

Exception
Unless reasons exist that would dispense with his presence.

Example
 confinement in a hospital,
 detention in a place requiring maximum security,
 presence not feasible by reason of age, health, or similar factors.

Presence of Complaining Witnesses

If necessary, the Inquest Officer shall require the presence of the complaining witnesses and subject them to an informal and
summary investigation or examination for purpose of determining the existence of probable cause.

Inquest must pertain to the offense for which arrest was made
The accused was allegedly arrested on the act of committing inciting to sedition. The inquest prosecutor indicted Beltran and
filed the corresponding Information with MeTC.

Several days after, he was scheduled for 2nd inquest for rebellion allegedly he committed.

That the inquest proceedings against Beltran for rebellion is void. That he was arrested without warrant for inciting to
sedition and not for rebellion.

Found not in accordance with ROS

He shall not proceed with the inquest proceedings.
a) recommend the release of the person arrested or detained;
b) note down the disposition on the referral document;
c) prepare a brief memorandum indicating the reasons for the action taken; and
d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action

When recommendation is approved, the order of release shall be served on the officer having custody of the detainee.
When PI is warranted
If the evidence on hand warrants the conduct of a regular PI, the officer shall also serve to the detainee a notice of PI.

In such event, the detainee shall be also released for further investigation.

Detainee shall be furnished copies of the charge sheet or complaint, affidavits or sworn statements of the complainant and his
witnesses and other supporting evidence.

Found that arrest was properly affected

 The inquest shall proceed.
 The inquest officer shall ask 1st the detained person if he desires to avail himself of a PI, if he does waiver of Art. 125 RPC
shall be executed by the detained person with the assistance of a lawyer.

Note: PI may be conducted by the Inquest Officer himself or any other Assistant Prosecutor assigned in the case.

Findings of the Inquest Prosecutor

 If the Inquest Prosecutor finds that probable cause exists, he shall prepare the corresponding information with the
recommendation that the same be filed in court.

 If no probable cause is found, he shall recommend the release of the detained person.

Article 125 RPC. Delay in the delivery of detained persons to the proper judicial authorities
Imposes a penalty upon a public officer or an employee who, although having detained a person for some legal ground, fails
to deliver the person arrested to the proper judicial authorities:

Within Crimes or offenses

the punishable by
period of
12 hours light penalties
18 hours correctional penalties
36 hours afflictive or capital
penalties

Waiver of Article 125 RPC

He is not precluded from applying for bail, notwithstanding of such waiver. His right to bail is supported by the following
rules:
1. He is under detention while a PI is undertaken. (6,112)
2. Any person in custody, not yet charged in court may apply for bail (17C, 114)

Ruiz v. Beldia
Accused was arrested lawfully without warrant and was detained at Camp Crame. He asked for PI and signed a waiver of
provisions of Article 125 of RPC.

Assistant judge of Marikina approved his bail. While a person lawfully arrested and detained and not yet formally charged
can apply for bail, the application must be filed in the province, city or municipality where the person arrested is held.