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Rule 112 Preliminary Investigation

Rule 112

PRELIMINARY INVESTIGATION SECTION 1. Preliminary investigation defined; when required.– 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. Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a compliant 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. (1a)

Alright. We will now go to Preliminary Investigation. This is one of the features of the inquisitorial system of criminal procedure. The government is the boss. The purpose is for determining whether there is probable cause, not guilt or innocence of the accused, because what is probable cause to you may not be probable cause sa akin. That is why you can see the fiscal as a very powerful person in the government. He could say that there is probable case or there is none. Depende kung anong gusto niya. So, the government through the investigating officer will decide whether there is a case or no case. He will first conduct an investigation and if he believes that there is a probable cause, then he will prepare a resolution recommending to this superior that the respondent be indicted in court. The purpose of preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Marcos vs. Cruz, 68 Phil. 96; Hashim vs. Boncan, 71 Phil. 216) Q: Is Preliminary Investigation required in all criminal cases? A: Under the new rules, it is required when the crime for which the respondent is charged carries a penalty of at least four (4) years, two (2) months, and one (1) day. Q: What happen if a case is filed in court without preliminary investigation? Can the accused file a motion to quash the information on the ground of absence of a preliminary investigation? A: Of course there is no question that there is a denial of a right. However, if there is an irregularity, that is not a ground for dismissal. An information cannot be dismissed because there was no preliminary investigation. The procedure is for the court to suspend the proceedings and refer the matter back to the proper officer for preliminary investigation (People vs. Oliveria, 67 Phil. 427; People vs. Manlapas, L-17993, August 24, 1962) Q: Who has the discretion whether to prosecute or not to prosecute? A: The public prosecutor. That is why he is a powerful officer. He exercises quasi-judicial function because he is the one to determine whether to file a case against you or not. He has the authority to file or the authority to dismiss. Q: Can the discretion of a public prosecutor be controlled? Can you file a petition for mandamus to compel a public prosecutor to file a case? A: General Rule: The public prosecutor cannot be compelled by mandamus to prosecute a case because it is discretionary eh! Maybe you can prove grave abuse of discretion. Maybe the probable cause is very, very clear or obvious, then ayaw pa nyang ifile, ayan na! Q: What are the remedies of the offended party if a fiscal refuses to file a case even when there is a sufficient evidence n which action may be taken?

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A: There are three (3) possible remedies: 1. He may take up the matter with the Secretary of the Justice who may then take such measures as may be necessary in the interest of justice; or to his superior officer, the Regional State Prosecutor; 2. He may also file with the proper authorities or court criminal or administrative charges against the fiscal. That is what you call prevericacion in the Revised Penal Code; 3. He may file a civil action for damages under Article 27, New Civil Code. There are other cases where the Supreme Court (SC) commented on this aspect about the quasi-judicial power of the public prosecutor. In the case of GUIAO VS. FIGUEROA (94 Phil. 1018), the SC said that the prosecution, as an exception, may be compelled by mandamus if he abuses his discretion and refuses to include a person as a co-accused against whom there appears to be at least a prima facie evidence. That is grave abuse of discretion. However, this extraordinary writ is available only if the petition shows that he has first exhausted all remedies in the ordinary course of law such as a motion filed with the trial court for the indictment of the person or persons excluded by the prosecutor. SANCHEZ vs. DEMETRIOU November 9, 1993 HELD: “The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. But even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him. “ “The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition.” Let’s go back in the case of TEEHANKEE JR. vs. MADAYAG March 6, 1992 FACTS: Here, Claudio Teehankee, Jr. was originally charged for the crime of frustrated murder for shooting Hultman na na-comatose for how many months. In the course of the trial, Hultman died. The prosecution sought to change the information from frustrated murder to consummated murder. Teehankee Jr. questioned the new charge for lack of preliminary investigation thereon . There are three (3) questions to be answered here: ISSUE #1: Was there an amendment of the information or substitution when the information was changed from frustrated murder to consummated murder? HELD: There is an amendment. “There is an identity of offenses charged in both the original and the amended information [murder pa rin!]. What is involved here is not a variance of the nature of different offenses charge, but only a change in the stage of execution of the same offense from frustrated to consummated murder. This being the case, we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended information for murder is proper.” ISSUE #2: What kind of amendment? Formal or substantial? HELD: Formal. “An objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to

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aid the trial court in determining the proper penalty for the crime [So it is still murder.]. That the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory. There is no question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder.” So halimbawa sabihin ng prosecutor: “You shot Hultman who almost died.” Teehankee Jr.: “Wala man ako du’n ba! I was at home asleep!” Alibi ang defense niya ba. Now, namatay si Hultman. Ano man ang depensa mo? Mau man gihapon: “Wala man ako du’n!” So you are not prejudiced because the same defense available to you is still available to you now. ISSUE #3: Is there a need of a preliminary investigation on the new charge? HELD: No need because you have not changed the crime. If you change the crime or when there is substitution, kailangan ng preliminary investigation. Since it is only a formal amendment, preliminary investigation is unnecessary. “The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is not necessary.” SEC. 2. Officers authorized to conduct preliminary investigations. –The following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (2a)

Q: Going back to Rule 110, Section 1, how is a criminal action instituted? A: Read Section 1, Rule 110: SECTION 1. Institution of criminal actions.– Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation.

Q: Who are those proper officers? A: They are the officers authorized to conduct preliminary investigation and they are mentioned in Section 2: 1. Provincial, city prosecutors and their assistants; 2. Judges of the MTC, MCTC; 3. Other officers as may be authorized by law to conduct preliminary investigation.

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An example of “Other officers as may be authorized by law to conduct preliminary investigation” is the Ombudsman. In the case of UY VS. SANDIGANBAYAN (312 SCRA 77 [August 9, 1999]), the Ombudsman and his deputies are only authorized to conduct preliminary investigation of public officers in cases which are falling within the original jurisdiction of the Sandiganbayan (SB).So even if the crime is a violation of the Anti-Graft law, or a crime committed by a public officer in relation to his office, if he is below Grade 27, the proper court is not the SB, but the MTC or RTC. Before kasi, the original SC interpretation of the Ombudsman law as laid down in the first case of DELOSO VS. DOMINGO (November 21, 1990), is that, all crimes committed by public officers should be investigated by the Ombudsman . HOWEVER, Ombudsman Desierto filed a Motion for Further Clarification in the SC in relation to the case of UY where I think the Ombudsman is trying to convince the SC to change its mind because it is practically making that office a useless office . Now, SC resolved to consider the same. Therefore the ruling in UY is reversed in a SC resolution (dated March 20, 2001 [G.R. 105965-70]) where the SC went back to its original ruling that the Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. So take note of that. SEC. 3. Procedure. – The preliminary investigation shall be conducted in the following manner: (a) 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 whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) 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. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counteraffidavit 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. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (3a)

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Rule 112 Preliminary Investigation

Q: What is the procedure for Preliminary Investigation? A: You read Section 3 step by step. Actually it’s a battle of affidavits eh. It is the same as the old rules. Anyway I’ll just mention the changes no: 1. In 2nd paragraph of [b] “The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense.” 2. paragraph [c]. What is new here is the last sentence – “The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.” So you can file your counter-affidavit. Do not file a motion to dismiss; 3. “[d] If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant.” 4. paragraph [e]. What is new is the 2nd paragraph, “the hearing shall be held within 10 days…” Actually here, tapos na ang affi-affidavits. But if you want to clarify something, you can call the witnesses for clarificatory questioning, pero he has a deadline to do it – 10 days. In the case of TATAD vs. SANDIGANBAYAN 159 SCRA 70, March 21, 1988 FACTS: The preliminary investigation lasted for 3 years. So Tatad questioned the information. ISSUE #1: Is the 10-day period to issue a resolution mandatory or directory? HELD: “The 10-day period fixed by law is merely “directory,” yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter.” So all of the information filed must be dismissed for violation of the right for speedy trial. ISSUE #2: The government contended that a total lack of preliminary investigation is not a ground for dismissing an information, how come the delay in terminating a preliminary investigation becomes now a ground for dismissal? HELD: “It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True — but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time.” SANTIAGO vs. GARCHITORENA December 2, 1993 FACTS: Anti-graft charges were filed against Miriam Defensor-Santiago when she was still the Immigration Commissioner. Santiago raised this issue (on delay) because the offense was allegedly committed on or about October 17, 1988 and the information was filed only on May 9, 1991 or almost 3 years later. The amended information was filed only on December 8, 1992 or 4 years later. So following the Tatad ruling they shall be dismissed. HELD: “[Santiago] cannot complain that her constitutional rights to due process were violated by reason of the delay in the termination of the preliminary investigation. Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is

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inapplicable to petitioner's case. In Tatad, there indeed was an unexplained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues involved therein. In the case at bench, there was a continuum of the investigatory process but it got snarled because of the complexity of the issues involved. “ “We note that [Santiago] had previously filed two petitions before us involving 2 criminal cases. Petitioner has not explained why she failed to raise the issue of the delay in the preliminary investigation and the filing of the information against her in those petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-defeating.” So it is like splitting your causes of action working against you. Yaan! SOCRATES vs. SANDIGANBAYAN 253 SCRA 773, February 20, 1996 NOTE: I think Socrates was a governor of Palawan. He was also facing cases in the Sandiganbayan where he invoked the Tatad ruling. HELD: “In the application of the constitutional guaranty of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. It is palpably clear that the application of the Tatad doctrine should not be made to rely solely on the length of time that has passed but equal concern should likewise be accorded to the factual ambiance and considerations. It can easily be deduced from a complete reading of the adjudicatory discourse in Tatad that the three-year delay was specifically considered vis-a-vis all the facts and circumstances which obtained therein.” So you just don’t consider the time element. You must also consider the facts. Panahon ni Marcos yung kay Tatad eh. SERVANTES vs. SANDIGANBAYAN 307 SCRA 149, May 18, 1999 NOTE: The Tatad ruling was applied in this case. FACTS: Here, Elpidio Servantes was charged for violation of Section 3(e) of the Anti-Graft law. It took the special prosecutor six (6) years from the filing of the initiatory complaint before he decided to file an information for the offense in the Sandiganbayan. Servantes filed a motion to quash for violation of the right to speedy disposition of the case. Special prosecutor tried to justify the delay in the resolution of the complaint by stating that no political motivation appears in the prosecution of the case in apparent reference in the case of Tatad because in the case of Tatad there was political motivation dun eh kaya na-delay. Special Prosecutor: “Servantes here was insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the disposition of the matter.” Meaning, 6 years anong ginawa mo? Hindi ka man nagreklamo! You did not file a motion to hurry up. So you are estopped. HELD: “We find Servantes’ contention meritorious. He was deprived of his right to speedy disposition of the case, a right guaranteed by the Constitution. We cannot accept special prosecutor’s ratiocination. It is the duty of the prosecutor to speedily resolve the complaint as mandated by the Constitution regardless of whether Servantes did not object to the delay although the delay was with his acquiescence provided it was not due to causes directly attributable to him.” So the mere fact that he was not complaining is not a factor. What is the factor is when the delay was caused by him. Yaan! I know a case decided here during the time of former deputy Ombudsman Delpacio(?) when he was still here in Davao. For more than 4 years the preliminary investigation has

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not been terminated. The respondent filed a mandamus direct to the SC to compel the dismissal of his case citing Tatad case. With this mandamus, the SC required the Ombudsman to comment. So what the Ombudsman did, pinaspasan niya! So he came out with a resolution immediately – a resolution to file. Then he answered the SC: “I already terminated the preliminary investigation in fact there is now a resolution to file. Cured na! There is no more delay.” Sabi ng SC: “Hindi na puwede yan! i-dismiss mo na!” Let’s go back to paragraph [b]: (b) 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. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.

There is no mention that after the counter-affidavit, the complainant can also file a reply-affidavit. There is nothing which says that it cannot be done, there is nothing which says that it can be done. Well, my position is, since it is not prohibited, try it. Anyway wala mang bawal ba. Q: Going back to paragraph (b) when the respondent is subpoenaed, he is supposed to file his counter-affidavit. Paano kung di siya ma-subpoena or even if subpoenaed he does not submit his counter-affidavit? A: The investigating officer shall resolve the complaint based on the evidence presented by the complainant. MERCADO vs. COURT OF APPEALS July 5, 1995 HELD: “The New Rules on Criminal Procedure does not require as a condition sine qua non to the validity of the proceedings [in the preliminary investigation] the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of offenses by hiding themselves or by employing dilatory tactics." SEC. 4. Resolution of investigating prosecutor and its review. – If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in- the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. 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.

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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 another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu propio, 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 anther 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. (4a)

The investigating prosecutor after the preliminary investigation will now issue a resolution to be approved by his superior recommending the filing or dismissal of the case. If he finds probable cause to hold the respondent for trial, he shall prepare the resolution and information and he will certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses that there is a reasonable ground to believe that a crime has been committed that the accused is probably guilty thereof, that the accused was informed of the complaints and of the evidence submitted against him and that he was given opportunity to submit controverting evidence. That is a standard form in the information filed by the prosecutor. Q: Suppose the prosecutor failed to make that certification in the information, is the information valid or defective? A: It is still VALID. “Notwithstanding the absence in the information of a 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.” (Alvizo vs. Sandiganbayan, 220 SCRA 45) Q: After that, what will he do? To whom will he forward his resolution? A: To the provincial or city prosecutor or chief state prosecutor depending on who is conducting the preliminary investigation; Q: Is the resolution of the prosecutor appealable? A: YES. It is appealable to the Secretary of Justice. The last paragraph of Section 4 gives the power of review to the Department of Justice – that is, if the case originally started in the Fiscal’s office. The DOJ can reverse or modify resolution of a city or provincial prosecutor and the procedure for review is governed not by the Rules of Court, but by a department order. There is also a procedure there for appeal or review by the DOJ (2000 DOJ Rules on Appeal, July 3, 2000). One of the cases we have to remember here is the leading case of CRESPO VS. MOGUL, (June 30, 1987). Here are some points discussed in this case: Q: What happens if the DOJ sustains the appeal? A: It will reverse the resolution of the prosecutor. Example: PROSECUTOR: “Dismiss! The case should not be filed.” DOJ: “Reversed! You file the case.” Walang magawa ang fiscal diyan. He must file the case because that is the order of his superior. What if: Example:

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PROSECUTOR: “There is probable cause. I will file the case.” RESPONDENT/ACCUSED: “Appeal!” DOJ: “I will reverse. You are hereby ordered not to file.” Q: E kung na-file na? A: Under the new rules, the fiscal is ordered to file a motion to dismiss the case in court. There is no problem if the resolution of the fiscal is to dismiss and then ang DOJ order is “to file.” Ang mahirap is if the resolution of the fiscal is to file and na-file na, and then sabi ng DOJ, “ah walang probable cause – do not file!” Prosecutor: “Eh, na-file na?” DOJ: “Okey, you move to dismiss the case.” So the fiscal will file a motion to dismiss. His argument will be, there is no probable cause according to DOJ – my superior and the Secretary of Justice has ordered me to move for the dismissal of the case. Eh kung sabihin ng court: COURT: “Ayoko! Tuloy ang kaso!” [ay naloko na!!] FISCAL: “Sorry Your Honor but that is the order of my superior. I cannot go against the DOJ.” COURT: “Superior mo, hindi akin! It is not my superior! Ituloy ang kaso! Yaan!! That was the issue in the case of CRESPO. And the SC ruled that: CRESPO vs. MOGUL June 30, 1987 HELD: The power of the fiscal is practically absolute whether to file or not to file. But once the case is filed in court, the power now belongs to the judge and he is the one who will determine whether to proceed or not to proceed. The court will be the one to decide because control over the case is already shifted in the court. The court now has the absolute power and once the court tell the fiscal ‘you proceed,’ then the fiscal has to proceed. The latter should not shirk from his responsibility of representing the People of the Philippines. So the absolute power of the fiscal ends upon the filing of the case in court. “As an advise [advise lang, hindi naman order], that in order to avoid this unpleasant situation where the opinion o the Secretary of Justice is not to proceed but the opinion of the judge is to proceed, and the fiscal is caught in the middle [naipit ba!], when the case is already filed in court, as much as possible huwag ka (DOJ) ng makialam. The Secretary of Justice as much as possible, should not review the resolution of the fiscal to file when the case is already filed in court to avoid this unpleasant situation because it will really cause a conflict of opinion between the two (2) offices.” There are other cases where the SC elaborated on this but the leading case is CRESPO. I will just cite to you some of these cases where the SC had something to comment about this issue as we have no more time to go over them one by one: 1. 2. 3. 4. 5. 6.

REPUBLIC VS. SUNGA (162 SCRA 191); MARCELO VS. CA (235 SCRA 39); PEOPLE VS. CRUZA (237 SCRA 410); MARTINEZ VS. CA (237 SCRA 575); MOSQUERA VS. PANGANIBAN (258 SCRA 473); LEDESMA VS. CA, 278 SCRA 658 (September 5, 1997).

And based on some of these cases in relation to reinvestigation, the SC held that once the case is already in court and the accused would like to have his case reinvestigated, the

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court must agree. There must always be the concern of the court because of the absolute control is already in the court once the case is filed. And take note that there is no double jeopardy in preliminary investigation. SEC. 5. Resolution of investigating judge and its review.– Within ten (10) days after the preliminary investigation, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy incases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action, together with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint. Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties shall be furnished with copies thereof. They shall order the release of an accused who is detained if no probable cause is found against him. (5a)

Section 5 applies to preliminary investigations conducted by MTC judges. Remember, aside from fiscal, MTC judges are also allowed to conduct preliminary investigations. But in Metro Manila and chartered cities, MTCC judges do not conduct preliminary investigations – everything is given to the state prosecutor. What happens if the judge or the MTC judge will conduct a preliminary investigation? The judge will conduct a preliminary investigation. Ang kanya, there is a probable cause or there is no probable cause, either way he must forward his resolution to the provincial prosecutor. The provincial prosecutor will be the one to decide. Q: Do you mean to tell me the provincial prosecutor will conduct again another preliminary investigation? A: NO. He will just review the findings of the judge. Maybe the provincial fiscal will simply adop the finding of the MTC judge. Q: Suppose sabi ng fiscal, “Di ako kuntento. I am not satisfied with the preliminary investigation by that judge. I will conduct another preliminary investigation” Puwede ba yan? A: YES. The provincial prosecutor has 100% control. He may adopt the finding and just follow the recommendation filed, or he may conduct his own preliminary investigation. Q: What happens if his decision is different from what the MTC judge believes? Whose decision will prevail? A: Fiscal’s decision will prevail. He can reverse the resolution of the MTC judge. And in case the respondent has been arrested while the case is under preliminary investigation and detained in jail, according to Section 5, last paragraph, last sentence, the provincial fiscal shall order the release of an accused who is detained if no probable cause is found against him. This is one instance where the opinion of the provincial prosecutor prevails over that of the judge. The fiscal can reverse the findings of the judge eh. Q: Bakit naman ganun? Why are we giving the provincial fiscal more power than the MTC judge when it comes to preliminary investigation? A: The reason is simple: who will prosecute the case – the judge or the fiscal? Of course, it is the fiscal. He will be the one to handle the case and not the judge.

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Another reason is given by the SC in one case that actually, preliminary investigation is not really the function of the judiciary. The power to determine whether to file or not file does not belong to the judiciary. “When a preliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an exception to his usual judicial duties. The assignment of that function to judges of inferior courts and to a very limited extent to courts of first instance was dictated by necessity and practical considerations. Consequently, the findings of an investigating judge are subject to review by the provincial fiscal.” (Castillo vs. Villaluz, March 8, 1989) Alright. Let’s go to Section 6 – a very important provision – when warrant of arrest may be issued. SEC. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall 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. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. Incase of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. x x x x x x

Let us picture what happens here. The case is triable by the RTC – so this means, 6 years and 1 day up. Now, the fiscal conducts a preliminary investigation. Assuming after finding probable cause, he will file information. After that, what will happen? The judge may issue a warrant of arrest to arrest the accused because in his opinion, there is probable cause to issue the warrant of arrest. So that is the situation. So you will notice that this word – “probable cause” – has many functions. When the fiscal file the information, he believes that there was probable cause – probable cause to file the case. Pagdating sa court, the RTC judge will present probable cause na naman to issue warrant of arrest. Iba yan eh! Kanya-kanya yan – probable cause to file, probable cause to issue warrant. That is why in the case of CASTILLO vs. VILLALUZ March 8, 1989 HELD: “The fiscal prevails over the judge only in the determination of the existence of a probable cause justify the filing of a complaint or information. This task is concededly executive. But the determination of probable cause to justify the issuance of a search warrant or a warrant of arrest is the constitutional prerogative of the judge and may not be withdrawn from him or even only limited by statute or the Rules of Court. This task is undoubtedly judicial.” “The findings of the fiscal in the preliminary investigation do not control or foreclose the exercise of the power conferred personally on the judge under Section 2 of the Bill of Rights. That power is his alone.” Q: Now, under the Constitution, before the RTC judge issued the warrant of arrest because of probable cause, anong dapat gawin niya? A: He must personally examine the complainant and his witnesses to determine whether there is probable cause to issue or not to issue a warrant of arrest. How do you interpret the phrase, “personally examine”? I have to admit that the cases before were somehow confusing. There were some case na literal – pag-file mo ng kaso, the RTC judge has to call the complainants, tanong… tanong… tanong… to determine the probable cause to issue a warrant. Otherwise if I will not examine them, it is

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unconstitutional for to issue a warrant. Or in another case, RTC judge: ‘sabi ng fiscal, may probable cause to file eh. Tama na yon! I believe him. I will now issue the warrant.’ But there are some cases that say na hindi puwede yan because you are giving now to the fiscal the right to determine your duty under the Constitution. You cannot do that because the law says you must personally examine. Otherwise, the fiscal is the one who is determining. But meron namang mga kaso where the SC said that if we will require the RTC judge to personally examine the complainant and his witnesses to determine probable cause before issuing the warrant, he might have no more or nothing to do more except to do that. He cannot anymore try cases, wala na, puro na lang probable cause. So he may not have time anymore to do his usual duty. Thus he can rely on the findings of the fiscal. So this really cause some kind of confusion. Now, these confusions are now reconciled. There are many cases such as ROBERTS VS. CA (the PEPSI-COLA “349” tansan case). But the first one the SC really discussed the issue exhaustively was the 1991 case of LIM, SR. vs. FELIX 194 SCRA 292 [1991] FACTS: The information was filed – information lang and a certification by the fiscal that based on the investigation, there is probable cause. And on the basis of that information certification, the judge issued a warrant of arrest. ISSUE: May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest? HELD: In order to clarify this rule once and for all, the SC went over all the cases where this issue kept coming back, starting from: US VS. OCAMPO (18 Phil.); AMARGA VS. ABBAS (98 Phil.); PLACER VS. VILLANUEVA (126 SCRA 463); SULTA VS. CA (143 SCRA 228); SOLIVEN VS. MAKASIAR (167 SCRA 393); CASTILLO VS. VILLALUZ (171 SCRA 39); PEOPLE VS. INTING (187 SCRA 798); to PEOPLE VS. DELGADO (189 SCRA 725). This is the dilemma: “if a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he may have no more time for his or her more important judicial functions. At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires probable cause to be personally determined by the judge, not by any other officer or person.” “If a Judge relies solely on the certification of the Prosecutor, he has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied.” “The Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the judge. The judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require.” “We reiterate that in making the required personal determination, a judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the judge's sound discretion. However, (as happened in the case of Lim) the judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.”

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How did the SC reconcile that? When the fiscal files an information, the judge will require the fiscal to attach to the information all the records of the preliminary investigations – affidavits, counter-affidavits, or other whatever documents. All the evidence will be submitted to the judge and he will review them. After reading them, if the judge is not satisfied that there was probable cause, he may summon the witnesses. BUT if he is satisfied, he can issue the warrant without the need for summoning the witnesses. He can rely on the affidavits. That is what personally examined means. ROBERTS vs. COURT OF APPEALS March 5, 1996 FACTS: This is the Pepsi-Cola 349 tansan case. Pag-file ng fiscal, marami, makapal ang documents. The records of the case is voluminous. Maraming nanalo ng 349 nu’n eh. So pag-file, after 20 minutes the judge issued the warrant of arrest. The accused challenged it: ACCUSED: You did not determine probable cause. JUDGE: Bakit? All the supporting documents are attached in the information. ACCUSED: Yes, but how can you go over them in less than 20 minutes? You did not go over them. Ibig sabihin binasa mo lahat yan within 20 minutes only? So it is now doubtful that the judge will go over the entire records within 20 minutes. Ang kapal ng records eh! HELD: Sabi ng SC: “Eh kung mabilis pala mag-basa ang judge? Ang importante nandoon ang records!

[Ano’ng pakialam

mo? Ha!]

Now, these issues were further supplemented by other cases in 1997. The leading case is HO vs. PEOPLE OF THE PHILIPPINES 280 SCRA 365, October 9, 1997 ISSUE: Is it required that everything that was filed in the fiscal’s office will really be included? Lahat ba talaga? Eh kung makapal? HELD: “It is NOT required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counteraffidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation.” Going back to Section 6 (a): (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. [This is a new sentence:]He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant

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of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. [The last sentence is also new:]In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

This brings to my mind one of the leading cases on this issue which was asked in the Bar and which I also asked in some examinations here. The case of AMARGA vs. FISCAL 98 Phil. 739 FACTS: The provincial fiscal filed an information in the CFI (now, RTC). Normally, the judge will issue the warrant. Nag-alanganin naman ang judge. What the judge did was to issue an order requiring the fiscal to appear before him and convince him that there is probable cause for the judge to issue warrant. Eh ayaw ng fiscal, “My golly! That is already an insult for me as a quasijudicial officer! I found probable cause. That is my finding. The judge should believe me because that is my prerogative.” So ayaw mag-sunod ng fiscal. Judge, “Ayaw mo ha! Okey! Case is dismissed!” Remember, there are two (2) questions there asked in the bar: ISSUE #1: Does the court have the power to require the fiscal to present evidence to convince the judge that there is probable cause to issue the warrant of arrest when the fiscal already found probable cause to file the case? HELD: YES. The power of the fiscal is to determine probable cause to file while for the judge is probable cause to issue the warrant of arrest. Iba yung iyo, iba rin yung sa akin! You cannot say that simply because you found probable cause, I will follow you. [We already discussed that principle and it is already stated in the rules] So, it will be the power of the judge to inform the prosecutor and to require the fiscal to convince him that there is probable cause to issue the warrant. (now last sentence of Section 6 [a]) ISSUE #1: Since the fiscal refuses to comply, did the judge act correctly in ordering the dismissal of the information? HELD: NO. This time mali ang judge. If the fiscal does not want to comply with the judge’s order, the remedy of the judge is not to issue the warrant. Ayaw mong sumunod? – then do not issue the warrant. But do not dismiss the case because this time we are already encroaching the power of the prosecutor. (c.f. second sentence of Section 6 [a]) Now, based on the present rules, we will now ask the same questions today. Q: Can the judge require the fiscal to present evidence of probable cause in convincing him to issue the warrant of arrest? A: YES. That is the prerogative of the judge. (AMARGA VS. ABBAS) Q: If fiscal refuses, has the judge the power to dismiss the case? A: In the case of Amarga, no. However, under Section 6, the judge may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. That is a new sentence, “xxx he may immediately dismiss the case xxx” not found in the prior rule. To my mind, that has change the answer. While before, the judge may not have the power to dismiss the case if he finds no probable cause. Right now, the rules says YES because of that new provision, “he may immediately dismiss the case if the

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evidence on record clearly fails to establish probable cause” even if the fiscal has already found probable cause. In other words, this has changed the ruling in the old case of Amarga. Let’s go to Section 6 [b]: (Preliminary Investigation conducted by MTC judge) (b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

Obviously, this rule does not apply in chartered cities but in municipalities. Sa probinsiya, for example, the case is murder. That is not triable by MTC but you can file the complaint for murder before the MTC not for the purpose of trial but for the purpose of preliminary investigation. That is the difference. We already learned that he resolution of the judge, whether to file or not to file, is ipasa niya sa Provincial Prosecutor who has the final say. That’s why the rule says, if his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. Let’s compare. Q: Does the fiscal have the power to issue warrant of arrest? A: NO. His power is to conduct preliminary investigation and if there is probable cause – File! Q: Who will issue the warrant? A: RTC. Pero ang municipal judge, iba eh. The police will file a complaint for homicide in MTC for preliminary investigation. Pag-basa ng MTC judge, “aba! Grabe ito! There is probable cause. Pero teka muna, delikado ito baka makawala – arrest him!” So even before the case is filed in the RTC, the MTC judge has the power to issue warrant of arrest. That is the difference between the power of the MTC judge and the power of the Provincial Prosecutor. Both of them have the power to conduct a preliminary investigation in the province. But the fiscal has no power to issue a warrant but the judge has the power to issue warrant even while the preliminary investigation is going on. That is why in the province, complainants prefer to file sa MTC para issue dayun ang warrant. The issuance of warrant by the MTC judge is ex parte. He will just determine it based on the affidavit of the complainant and his witnesses after searching questions and answers. So the examination conducted by the judge is literal in meaning. And once you are

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arrested, tuloy tayo. You now follow preliminary investigation. You submit now your counter-affidavits. For what purpose? We will determine whether the case will be filed in the RTC or not. So there are two (2) stages: 1. first stage – Preliminary Examination – to determine whether or not to issue a warrant of arrest. This is done ex parte. 2. second stage – Preliminary Investigation proper - to determine, after you are arrested, whether or not you will be indicted in the RTC. Q: Is it mandatory that every time you file a case in the MTC, the judge will always issue a warrant or arrest? A: NO. Hindi naman sinabi yun because in order to determine whether a warrant of arrest will be issued, the judge will conduct the examination. He will examine in writing under oath of the complainant and witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. So if you file a case for homicide against somebody in the municipality; tao na kilala mo; mayaman at may malalaking properties; if I’m the judge, I will not issue a warrant of arrest. Tatakbo ba yan? I don’t think so. I may or may not issue the warrant but my criterion is: is there a necessity of placing him under immediate custody in order not to frustrate the end of justice? But suppose the accused has no permanent address, ayan! Delikado na yan, baka makawala! I will now issue a warrant of arrest. Now, what has changed the picture now is this: there is no question if the case is triable by the RTC, the MTC judge will conduct a preliminary investigation in order to determine whether or not the case should be filed in the RTC. Q: But now, when is the preliminary investigation required? A: When the crime is punishable by 4 years, 2 months and 1 day and up. Q: The case has a maximum penalty of 6 years – therefore triable by the MTC. Is the MTC judge required to conduct a preliminary investigation? A: YES. Mandated man yan ba! Although it is triable by the MTC, it is still mandatory for the MTC judge to conduct preliminary investigation because any crime which carries the penalty of 4 years, 2 months and 1 day or up, is subject to preliminary investigation. Q: In this case, who will conduct the preliminary investigation? The fiscal or the MTC judge? A: Either one of them. Let us read the opening paragraph of Section 6 (b): (b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor.

But I was wondering with this issue. This happens in places where there is only 1 branch, 1 judge. For example, ako ang judge and the case is filed before me – preliminary investigation ito ha! – 4 years, 2 months and 1 day. There is a probable cause so I will continue. Now, who will try the case? Ako rin di ba? Sabihin ng defense, “Ah wala na. Talo na kami. Bias ka na eh!” Naloko na! This might be a ground for disqualification eh because you already found probable cause, chances are dire-diretso na ito – you will convict me, you are no longer impartial. This is now the danger because of this new provision. Suppose sabihin ng judge, “Hindi man. I found probable cause only for the case to proceed to trial but for all you know during the trial, I might find you innocent, not guilty

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beyond reasonable doubt. Ang criterion ko diyan is probable cause man lang – probably you are guilty. But when I will try it, it should be guilt beyond reasonable doubt.” Yan ang delikado dito! Mabuti sana if the fiscal was the one who conducted the preliminary investigation. But when I am the one who conducted the preliminary investigation and then I will also be one to try the case, there might be complaints of biases or prejudgment. So there are provisions in the new rules which might create practical problems. Let’s go to the last portion of Section 6. Let’s read Section 6 [c]: (c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall them proceed in the exercise of its original jurisdiction. (6a)

Normally, when the information is filed in court, the court issues a warrant of arrest. However, there are instances when the court need not issue a warrant of arrest. Q: What are the instances when the court need not issue a warrant of arrest? A: Under Section 6 [c], the following are the instances: 1. if the accused is already under detention pursuant to a warrant issued by the MTC in accordance with paragraph [b] of Section 6. If the MTC issues the warrant of arrest and later on the cases reaches the RTC because there is probable cause, there is no need for the RTC to issue another warrant because there is already a warrant issued by the MTC. And as a matter of fact, the accused has already been detained; 2. when the complaint or information is filed pursuant to Section 7 of this rule. Section 7 – the accused is arrested for committing a crime in the presence of a peace officer, the fiscal will only conduct an inquest preliminary investigation and there is no need to issue a warrant because the accused is also under detention already. Normally, what the court there issues is a commitment order, just to confirm the detention of the accused; and 3. if the accused is charged for an offense penalized by fine only – di na kailangan ang warrant of arrest. There are crimes where there is no penalty for imprisonment but only fine like damage to property through reckless imprudence. Based on the new rules, there is no need for a warrant, just an order to appear is sufficient. SEC 7. When accused lawfully arrested without warrant. – When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)

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Section 7 is another important provision. This is called INQUEST PRELIMINARY INVESTIGATION, related to Rule 113, Section 5 [a] and [b] on warrantless arrest. Here, there is no need for preliminary investigation because there is a deadline for the accused to be detained. Otherwise the peace officer will be guilty of arbitrary detention – delay in the delivery. If we will conduct a preliminary investigation, that will last for many days. So what will happen to a person who committed a crime if we will conduct a regular preliminary investigation? Well, to avoid this possibility, wala ng preliminary investigation. The prosecutor will conduct an INQUEST preliminary investigation based only on the affidavit of the complainant, the police maybe, and his witnesses so that the court may issue a commitment order. With that, the deadline has been met – you have been delivered to the proper judicial authorities. Now, there is a new sentence inserted in Section 7, first paragraph – “In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court.” – a very radical provision. The normal procedure is: for example, the offended party or the peace officer will file the case before the fiscal to inquest preliminary investigation. And then the fiscal will now file the information in court let’s say in the RTC. Q: However, suppose there is no inquest prosecutor? Or there is an inquest prosecutor but he is not available, what will happen now to the case? A: The new provision says, “the complaint may be filed by the offended party or a peace officer directly with the proper court” so that the accused should be delivered. Why is this a very radical change? There is no problem with the MTC because you can file directly in the MTC. But as a matter of practice, you cannot file a complaint directly with the RTC. Everything here is done by information. The RTC does not entertain complaints filed by the police or the offended party. But now, puwede na eh, under this situation lang: – (1) the accused is arrested without a warrant and (2) there is the absence or unavailability of an inquest prosecutor. With that situations, the new rules now allow a direct filing of the complaint by the offended party or the peace officer directly with the proper court even in the RTC. That is why this is radical change. Now, whether this is the one or the other, you cannot deny the fact that the accused is entitled to a preliminary investigation. You cannot deprive him of this right. When there is a case filed in court without preliminary investigation so that he can be detained indefinitely in which case, he can ask for a preliminary investigation in accordance with this rule – but after the case is filed. Baliktad! Normally, the preliminary investigation comes before the filing of the case. Dito naman, filing comes before preliminary investigation – baliktad! During preliminary investigation, if there is no probable cause, the complaint will be dismissed or the fiscal will move to dismiss the case. But if you insist on that right to preliminary investigation before filing, ayaw mo ng inquest, then you must sign a WAIVER in the presence of your counsel – waiver of your right under Article 125, RPC. Here, while the preliminary investigation is still going on, you remain under detention. The second paragraph applies if he insist on the right to a regular or ordinary preliminary investigation. Correlate this with Section 2 [e] of RA 7438 – Law Protecting Rights of Persons under custody – i.e. he must be assisted by his counsel. Otherwise the waiver is not valid. Now, if there is no insistence, the case will be filed ahead. After it was filed, you can still ask for preliminary investigation within 5 days from the time you learn of the filing of

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the case. So within 5 days lang, otherwise you are deemed to have waived your right to preliminary investigation Note that the SC had ruled that the period of 5 days is NON-EXTENDIBLE – that is absolute. (PEOPLE vs. CA, 242 SCRA 645). The five-day period is absolute. After 5 days, you have no more right to ask for a preliminary investigation. Take note that the general rule, once you post bail, you are waiving your right to a preliminary investigation. In PEOPLE VS. CA, if you do not want to waive your right to preliminary investigation, then if you post bail, you must make a reservation. You must say, “I’m posting bail but I’m not waiving my right to preliminary investigation. In fact, I am asking for it.” In Section 7, last paragraph, when the accused post bail for his provisional release, he is deemed to have waived his right to preliminary investigation. To avoid the waiver, there must be a previous or simultaneous demand for a preliminary investigation upon posting of bail bond. SEC. 8. Records. – (a) Records supporting the information or complaint. – An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. (b) Record of preliminary investigation. – The record of the preliminary investigation, whether conducted by a judge or a prosecutor, 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 necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party.

Section 8 is just a reiteration of a doctrine that when the fiscal files an information, he should back up his certification of probable cause with appropriate records. An information with mere certification is not enough. (Lim, Sr. vs. Felix, supra) SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. – (a) If filed with the prosecutor. – If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule 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. If within ten (10) days after the filing of the complaint or information, the judge 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, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, 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. (9a)

Section 9 – Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. Obviously, Section 9 talks only of cases (a) cognizable only by MTC; (b) the penalty does not exceed 4 years 2 months because even if it is 4 years 2 months 1 day (up to 6 years), it still requires a preliminary investigation under the new rules; and (c) it should not be covered by the Rules of Summary Procedure. The coverage of summary procedure is up to 6 months penalty. Q: What cases are covered by Section 9?

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Rule 112 Preliminary Investigation

A: Where the prescribed penalty exceeds 6 months but not more than 4 years and 2 months. These does not require preliminary investigation and also not covered by the summary rules. Q: Now, going back to Rule 110. In cases cognizable by the MTC, how is it instituted? A: Section 1, Rule 110: SECTION 1. Institution of criminal actions.– Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaints shall be filed with the office of the prosecutor unless otherwise provided in their charters. x x x x x

So there are two (2) ways: (a) direct filing or (b) you file with the prosecutor and the provincial prosecutor will file the information. Let’s go to Section 9. If it is filed with the prosecutor, the procedure in Section 3[a] of this rule shall be observed. There is no need for preliminary investigation. The prosecutor will simply find out based on the affidavit of the complainant and his witnesses whether or not there is probable cause. Wala ng counter-affidavit. There is no need for the prosecutor to give a chance to the respondent to give this counter-affidavits. Section 3[a] lang sundin eh. There is no mention of [b], [c] or [d]. Section 9[b]. What happens if it is filed in the MTC directly? Again, the judge will observe the same procedure in Section 3[a] of this rule. If the judge 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, he shall dismiss the same. So he has the power to dismiss the case. Why continue if there is no probable cause? The next sentence is new: “He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause.” If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. [The next sentence is new again:] However, 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.” So it is not really necessary that every time a case is filed in the MTC with a penalty not more than 4 years and 2 months, kailangan mag-warrant of arrest agad ang judge. Wala na yan! That is the old practice. Sometimes it is very tedious. Lalo na sa MTC. Karamihan ng kaso sa MTC is bouncing check law. If I were the MTC judge, bouncing check law, sino ba yang akusado? “Di ko kilala. Balita ko maraming kaso yan.” Ah sige, I will issue a warrant. Pero halimbawa, sino yang akusado? “He is Jet Pascua, Your Honor.” Uy! Kilala ko ito! Businessman ito, titser pa sa Ateneo. Mayaman ito! Sus! Minalas lang. If I am the judge, I will not issue a warrant. Tatakbuhan ka ba niyan? So the judge need not issue a warrant. You better tell that to those judges because they are automatic ba! –warrant! warrant! warrant! Just imagine kahit respectable man, first time offender – warrant kaagad ang mga MTC judges.

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Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 112 Preliminary Investigation

Well, under the new rules, hindi man kailangan bah! Even if there is probable cause to file, if he is satisfied that there is no necessity to put the accused in custody, he may issue summons. Summons here is not really the same in the Rules of Court. It is just a notice bah – notice that you are required to appear. And that is a new provision. Now, we will go to some decided cases related to this rule. PEOPLE vs. NAVARRO 270 SCRA 393, March 25, 1997 NOTE: This case signifies that once the case reached the court, the court has the absolute power. Anything that you like to happen in the case like reinvestigation or absence of preliminary investigation, the judge will be the one to approve. FACTS: The RTC judge felt that the case should be reinvestigated, or maybe there is no preliminary investigation. So he orders the fiscal to conduct preliminary investigation, then submit the result to him afterwards what happened. Siguro, the judge had particular confidence in the assistant provincial prosecutor. Sabi ng judge, “The preliminary investigation should be conducted by this particular prosecutor – provincial assistant prosecutor Boyd Atensor.” Siya ang nag-pili ba. Sabi ng provincial prosecutor, “Hindi! Ako ang magpili and not you!” ISSUE: In remanding the complaint or information to the provincial prosecutor, may a regional trial court judge name or designate a particular assistant prosecutor to conduct the preliminary investigation of the case? HELD: NO. The RTC judge is already interfering with the office of the prosecutor. “It must be stressed that preliminary investigation is an executive, not a judicial, function. That an RTC judge has no authority to conduct a preliminary investigation necessarily means that he cannot directly order an assistant prosecutor, particularly over the objections of the latter's superiors, to conduct a preliminary investigation. To allow him to do so is to authorize him to meddle in the executive and administrative functions of the provincial or city prosecutor.” Q: Can a preliminary investigation be stopped by asking the court to grant a preliminary injunction or a restraining order? Can a criminal prosecution be enjoined or restrained? A: NO, as a GENERAL RULE. If you believe that you are not guilty, then you prove that in court. Anyway if you are not guilty, you will be acquitted. However, the SC came out with EXCEPTIONS where courts is authorized to stop a criminal prosecution. These exceptions were all cited in the case of BROCKA vs. ENRILE 192 SCRA 83 HELD: Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final. There are however exceptions, among which are: a. To afford adequate protection to the constitutional rights of the accused; b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; c. When there is a pre-judicial question which is sub judice; d. When the acts of the officer are without or in excess of authority; e. Where the prosecution is under an invalid law, ordinance or regulation;

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Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition f. g. h. i. j.

Rule 112 Preliminary Investigation

When double jeopardy is clearly apparent; Where the court has no jurisdiction over the offense; Where it is a case of persecution rather than prosecution; Where the charges are manifestly false and motivated by the lust for vengeance; and When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.

There are some interesting cases where the SC intervened. Normally, hindi nakikialam ang SC eh – i-acquit mo na lang yan sa trial. But there are cases when the SC is convinced that there is no probable cause, bakit mo pa pahirapan yung tao? You can order the case to be dismissed. These are rare instances where the SC becomes activist. In the case of ALEADO VS. DIOKNO (232 SCRA 192) two (2) lawyers: Atty. Diosdado Jose Aleado and Atty. Roberto Mendoza who were associates in the office of senator Jovito Salonga were implicated in the murder of a German national. There was an investigation and a case was filed against them. Salonga entered into picture and questioned whether or not there is probable cause. [Normally, hindi dapat yan eh. Yang probable cause, sa fiscal lang yan, hindi dapat sa SC.] But surprisingly, the SC reviewed and said that there was no probable cause which justified the issuance of order of arrest of the 2 lawyers. The SC ordered that the warrant of arrest be set aside and the trial court is permanently enjoined from further proceeding against them. In effect, the respondent judge was ordered to dismiss the information before him. (Aleado vs. Diokno, supra) It was a very rare situation. That does not happen every year. It does not happen even in 10 or 20 years! Yan ang mga kuyaw where the Court has the power to issue injunction order to stop a case when there is no probable cause. Salonga yata yan!

 SPACE-FILLER #2: A recently graduated lawyer wanted to make everyone believe that he was in great demand, so he ordered his secretary to keep clients waiting for a long time. A man arrived and asked to see the lawyer, so the secretary did as she was told. After a while, she showed the man into her boss’s office, while the lawyer pretended to be on the phone handling a delicate situation with an important client. The lawyer ended the makebelieve phone call and hung up. He asked the man: “How can I help you?” The man answered: “I’m here to install the phone line.” Source: Reader’s Digest, March 2001

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