“The procedure protects respondents from hasty and oppressive prosecution, and the State from useless, improper, and expensive trials.”
A preliminary investigation is an inquiry conducted by the Prosecutor to determine whether an indictment or criminal information can be filed in court against the respondent. Specifically, the Prosecutor will 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” (Section 1, Rule 112, Rules on Criminal Procedure).
A preliminary investigation is required to be conducted before the filing of a complaint or criminal information in court where the penalty for the offense is at least 4 years, 2 months and 1 day, without regard to the fine (Section 1, Rule 112). The absence of a preliminary investigation does not affect the court’s jurisdiction over the case, but only the regularity of the proceedings (Paderanga v. Drilon, G.R. No. 96080, April 19, 1991).
The absence of preliminary investigation, or its irregularity must be raised by the respondent (accused) before the plea is entered. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case (Section 26, Rule 114). To be clear, the preliminary investigation is held before the Prosecutor’s Office while the arraignment, pre-trial, trial, and judgment are conducted in court.
Officers authorized to conduct preliminary investigations are: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) Other officers as may be authorized by law. The authority to conduct preliminary investigations covers all crimes cognizable by the proper court in their respective territorial jurisdictions (Section 2, Rule 112).
Before 2005, Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts (MuTC) were authorized to conduct preliminary investigations. However, on October 03, 2005, the Supreme Court, through A.M. No. 05-8-26-SC, removed this authority from the MuTC judges.
Preliminary investigation will be conducted by the Investigating Prosecutor in the following manner:
(a)The complainant together with his witnesses shall prepare their affidavits duly subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. The officer administering the oath shall certify that he personally examined the affiants and that he is satisfied that they have voluntarily executed and understood their affidavits.
(b)Within 10 days after the filing of the complaint, the investigating prosecutor shall either dismiss it if he finds that there are no grounds to base the preliminary investigation on; or issue a subpoena to the respondent, attaching to it a copy of the complaint and its supporting affidavits and documents.
(c) Within ten 10 days from the receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses, as well as other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified by the officers mentioned above. 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 a counter-affidavit within a 10-day period, the investigating prosecutor shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating prosecutor may set a hearing if there are facts and issues to be clarified from a party or a witness. The hearing shall be held within 10 days from submission of the counter-affidavits and other documents, and shall be terminated within 5 days. The parties can be present but do not have the right to examine or cross-examine. They may, however, submit to the investigating prosecutor questions which may be asked to the party or witness concerned.
(f) Within 10 days after the investigation, the investigating prosecutor shall determine whether or not there are sufficient grounds to hold the respondent for trial.
(g) If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. Otherwise, he shall recommend the dismissal of the complaint.
(h)Within 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. They shall act on the resolution within 10 days from their receipt thereof and shall immediately inform the parties of their action (Sections 3 and 4, Rule 112).
Based on the procedure outlined, the investigating prosecutor can recommend the dismissal of the complaint, or the filing of the criminal information against the respondent after conducting preliminary investigation. The recommendation for the filing of the criminal information shall cause the investigating prosecutor to prepare the resolution and criminal information.
The resolution will state the factual and legal reasons for the recommendation. The criminal information is the official written document that charges the respondent in court. No complaint may be dismissed or criminal information filed in court without the prior written approval of the provincial, city, or chief state prosecutor, or of the Ombudsman or his deputy (Section 4, Rule 112).
There are instances when the investigating prosecutor recommends the dismissal of the complaint, but which upon review, the aforementioned officials do not agree. The latter may, by himself or herself, file the criminal information against the respondent, or direct any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation (Section 4, Rule 112).
No preliminary investigation is required for arrests without a warrant, unless the respondent requests for it when his or her continued detention is ordered by the inquest prosecutor (Section 6, Rule 112). Preliminary investigation is also not required for offenses where the penalty is less than 4 years, 2 months and 1 day.
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Cases of simple defamation, slight physical injuries, violations of BP 22, and violations of traffic laws, among others, do not have to go through preliminary investigation. In these cases, the investigating prosecutor will have to determine probable cause based solely on the complainant and witnesses’ affidavits, together with the attached evidence, and without requiring the respondent to file a counter-affidavit.
The aggrieved party may file a Petition for Review within fifteen (15) days from the receipt of the resolution or the denial of the motion for reconsideration. All Petitions for Review of cases cognizable by the MuTC or Metropolitan Trial Courts except in the National Capital Region (NCR) shall be filed with the Regional State Prosecutor concerned. Those in the NCR shall be filed with the Prosecutor General. All other petitions for review shall be filed with the Department of Justice, Office of the Secretary (Mina v. Court of Appeals, G.R. No. 239521, January 28, 2019).
The filing of the Petition for Review in the Department of Justice or any of its offices will suspend the arraignment (Section 11, Rule 116). However, its filing will not suspend the issuance of the warrant of arrest. The Judge will have to conduct an independent and personal determination of existence of probable cause for the issuance of a warrant of arrest. If there is probable cause, he will have to issue a warrant of arrest regardless of the pending petition.
Preliminary investigation is a procedure conducted by the Prosecutor’s Office to weed out cases that cannot stand trial and will only clog the dockets of the courts. The procedure also protects respondents from hasty and oppressive prosecution, and the State from useless, improper, and expensive trials.