Rule 112

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 quasijudicial 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 wellgrounded 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 Beltran’s 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. 05-826-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 counteraffidavit 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 ComplaintAffidavit 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)