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RULE 112 PRELIMINARY INVESTIGATION

Honasan v. DOJ Panel


The authority of DOJ panel is based not on
the assailed circular but on the provisions of
the Revised Administrative Code governing the
DOJ, to wit;
Sec. 1. Declaration of Policy - It is the
declared policy of the State to provide
the government with a principal law
agency which shall be both its legal
counsel and prosecution arm;
administer the criminal justice system
in accordance with accepted processes
thereof, prosecution of offenders and
administration of the correctional
system
Sec. 3. Powers and Functions To
accomplish its mandate, the
Department shall have the following
powers and functions:
(2) Investigate the commission of
crimes, prosecute offenders and
administer the probation and correction
system.
The same is supplemented by Section 1, PD
1275.
With respect to the jurisdiction of the
Ombudsman being questioned, it has
concurrent jurisdiction with Sandiganbayan
and the regular courts as regards criminal
offenses committed by public officials. It is not
exclusive. The Office of the Ombudsman was
made to create a special office to investigate
all criminal complaints against public officers.
With respect to the jurisdiction of the
Sandiganbayan, it shall have exclusive and
original jurisdiction when (1) the offense
committed by the public officer is in relation to
his office and (2) the penalty prescribed be
higher that prision correcional or imprisonment
for 6 years or a fine of P6,000. In this case,
although the Court found that the 2nd requisite
present, the 1st is wanting.
In this case, Coup d etat was a committed by
public officials but not in relation to his office.
Even though Honasan presided the meeting of
the NRP and planned out ways to overthrow
the government, these were not related to his
office.
Mendoza v. People (Juno Cars)
The difference is clear: The executive
determination of probable cause concerns itself
with whether there is enough evidence to
support an Information being filed. The judicial
determination of probable cause, on the other
hand, determines whether a warrant of arrest
should be issued. The judge does not act as an
appellate court of the prosecutor and has no

capacity to review the prosecutors


determination of probable cause; rather, the
judge makes a determination of probable cause
independent of the prosecutors finding. In any
case, if there was palpable error or grave
abuse of discretion in the public prosecutors
finding of probable cause, the accused can
appeal such finding to the justice secretary and
move for the deferment or suspension of the
proceedings until such appeal is resolved.
People v. Durana
It is settled that the absence of a preliminary
investigation does not impair the validity of the
information or otherwise render the same
defective; neither does it affect the jurisdiction
of the court over the case, nor does it
constitute a ground for quashing the
information. Remedy is to grant the conduct of
Preliminary Investigation. If no preliminary
investigation has been held, or if it is flawed,
the trial court may, on motion of the accused,
order an investigation or reinvestigation and
hold the proceedings on the criminal case in
abeyance. In this case, accused-appellant
failed to invoke such right to preliminary
investigation before or at the time he entered
his plea at arraignment. He can no longer
invoke that right at this late stage of the
proceedings.
Discrepancies on minor matters do not impair
the essential integrity of the evidence for the
prosecution as a whole nor reflect on the
honesty of the witness.
Quarto v. Marcelo
In the exercise of his investigatory and
prosecutorial powers, the Ombudsman is
generally no different from an ordinary
prosecutor in determining who must be
charged. He also enjoys the same latitude
of discretion in determining what
constitutes sufficient evidence to support
a finding of probable cause (that must be
established for the filing of an
information in court) and the degree of
participation of those involved or the lack
thereof. His findings and conclusions on these
matters are not ordinarily subject to review by
the courts except when he gravely abuses his
discretion, i.e., when his action amounts to an
evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or when he
acts outside the contemplation of law.
If, on the basis of the same evidence, the
Ombudsman arbitrarily excludes from an
indictment some individuals while impleading
all others, the remedy of mandamus lies since
he is duty-bound, as a rule, to include in the

information all persons who appear responsible


for the offense involved.
In the present case, the Ombudsman granted
the respondents immunity from prosecution
pursuant to RA No. 6770 which specifically
empowers the Ombudsman to grant
immunity "in any hearing, inquiry or
proceeding being conducted by the
Ombudsman or under its authority, in the
performance or in the furtherance of its
constitutional functions and statutory
objectives."
Arroyo v. DOJ
A preliminary investigation is the crucial sieve
in the criminal justice system which spells for
an individual the difference between months if
not years of agonizing trial and possibly jail
term, on the one hand, and peace of mind and
liberty, on the other hand. Thus, we have
characterized the right to a preliminary
investigation as not a mere formal or technical
right but a substantive one, forming part of due
process in criminal justice.
The 1987 Constitution (ART. IX, Sec. 2 [2])
mandates the COMELEC not only to investigate
but also prosecute cases of violation of election
laws. This authority is exclusive but it may
deputize other officials to conduct the
investigation and the prosecution.
GMA received the notice requiring her to
submit her counter-affidavit. Yet, she did not
comply, allegedly because she could not
prepare her counter-affidavit. She claimed that
she was not furnished by Senator Pimentel
pertinent documents that she needed to
adequately prepare her counter-affidavit. It is
well settled that the absence or irregularity of
preliminary investigation does not affect the
courts jurisdiction over the case. Nor does it
impair the validity of the criminal information
or render it defective. Dismissal is not the
remedy.
Raro v. Sandiganbayan
Right to Speedy Trial
In the determination of whether or not that
right has been violated, the factors that may
be considered and weighed are "the length of
delay, the reasons for such delay, the assertion
or failure to assert such right by the accused,
and the prejudice caused by the delay."
The length of time it took before the conclusion
of the preliminary investigation may only be
attributed to the adherence of the Ombudsman
and the NBI to the rules of procedure and the
rudiments of fair play. The allegations of

Abaos complaint had to be verified; the


Ombudsman did not believe the same hook,
line and sinker. Recently, the Court held that
while the Rules of Court provides a ten-day
period from submission of the case within
which an investigating officer must come out
with a resolution, that period of time is merely
directory.
Doromal v. Sandiganbayan
The right of the accused to a preliminary
investigation is "a substantial one." Its denial
over his opposition is a "prejudicial error, in
that it subjects the accused to the loss of life,
liberty, or property without due process of law"
provided by the Constitution. Since the first
information was annulled, the preliminary
investigation conducted at that time shall also
be considered as void. Due to that fact, a new
preliminary investigation must be conducted.
The petitioner filed a motion to quash the
information on the ground that it was invalid
since there had been no preliminary
investigation for the new information that was
filed against him.

Carpio-Morales v. CA
Jurisdiction of CA over the OMB
Section 14, RA 6770, or the Ombudsman
Act,118 which reads in full:
Section 14. Restrictions. - No writ of injunction
shall be issued by any court to delay an
investigation being conducted by the
Ombudsman under this Act, unless there is a
prima facie evidence that the subject matter of
the investigation is outside the jurisdiction of
the Office of the Ombudsman.
No court shall hear any appeal or application
for remedy against the decision or findings of
the Ombudsman, except the Supreme Court,
on pure question of law.
However, because of the of the
unconstitutionality of the second paragraph of
Section 14, RA 6770, the Court, consistent with
existing jurisprudence, concludes that the CA
has subject matter jurisdiction over the main
CA-G.R. SP No. 139453 petition. That being
said, the Court now examines the objections of
the Ombudsman, this time against the CA's
authority to issue the assailed TRO and WPI
against the implementation of the preventive
suspension order, incidental to that main case.
Writs issued by CA
Hence, with Congress interfering with matters
of procedure (through passing the first

paragraph of Section 14, RA 6770) without the


Court's consent thereto, it remains that the CA
had the authority to issue the questioned
injunctive writs enjoining the implementation
of the preventive suspension order against
Binay, Jr. At the risk of belaboring the point,
these issuances were merely ancillary to the
exercise of the CA's certiorari jurisdiction
conferred to it under Section 9 (1), Chapter I of
BP 129, as amended, and which it had already
acquired over the main CA-G.R. SP No. 139453
case.
Villarin v. People
By entering his plea, and actively participating
in the trial, the accused is deemed to have
waived his right to preliminary investigation.
The absence of a proper preliminary
investigation must be timely raised and must
not have been waived. Here, it is conceded
that Villarin raised the issue of lack of a
preliminary investigation in his Motion for
Reinvestigation. However, when the
Ombudsman denied the motion, he never
raised this issue again. He accepted the
Ombudsman's verdict, entered a plea of not
guilty during his arraignment and actively
participated in the trial on the merits by
attending the scheduled hearings, conducting
cross-examinations and testifying on his own
behalf. Whatever argument Villarin may have
regarding the alleged absence of a preliminary
investigation has therefore been mooted. By
entering his plea, and actively participating in
the trial, he is deemed to have waived his right
to preliminary investigation.
Larranaga v. CA
Section 7 of Rule 112 (amended, see
Inquest) applies only to persons lawfully
arrested without a warrant. Petitioner in
this case was, in the first place, not arrested
either by a peace officer or a private person.
An arrest is defined as the taking of a person
into custody in order that he may be bound to
answer for the commission of an offense. It is
made by an actual restraint of the person to be
arrested, or by his submission to the custody of
the person making the arrest.
An arrest signifies restraint on person,
depriving one of his own will and liberty,
binding him to become obedient to the will of
the law. The foregoing facts show no restraint
upon the person of petitioner. Neither do they
show that petitioner was deprived of his own
will and liberty. Hence, Section 7 of Rule
112 does not apply to petitioner.

The City Prosecutor, however, insisted that


petitioner was entitled only to an inquest
investigation which he scheduled in the
afternoon of the same day. Petitioner and his
counsel refused to submit to such investigation
as it might be construed as a waiver of
petitioners right to a regular preliminary
investigation. The rule is that the right to
preliminary investigation is waived when the
accused fails to invoke it before or at the time
of entering a plea at arraignment. Petitioner, in
this case, has been actively and consistently
demanding a regular preliminary investigation
even before he was charged in court. Also,
petitioner refused to enter a plea during the
arraignment because there was a pending case
in this Court regarding his right to avail of a
regular preliminary investigation. Clearly, the
acts of petitioner and his counsel are
inconsistent with a waiver. Preliminary
investigation is part of procedural due process.
It cannot be waived unless the waiver appears
to be clear and informed.
Budiongan v. Dela Cruz
The right to a preliminary investigation is not a
constitutional right, but is merely a right
conferred by statute. The absence of a
preliminary investigation does not impair the
validity of the Information or otherwise render
the same defective. It does not affect the
jurisdiction of the court over the case or
constitute a ground for quashing the
Information. If absence of a preliminary
investigation does not render the Information
invalid nor affect the jurisdiction of the court
over the case, then the denial of a motion for
reinvestigation cannot likewise invalidate the
Information or oust the court of its jurisdiction
over the case.
Petitioners were not deprived of due process
because they were afforded the opportunity to
refute the charges by filing their counteraffidavits. The modification of the offense
charged did not come as a surprise to the
petitioners because it was based on the same
set of facts and the same alleged illegal acts.
Moreover, petitioners failed to aver newly
discovered evidence nor impute commission of
grave errors or serious irregularities prejudicial
to their interest to warrant a reconsideration or
reinvestigation of the case as required under
Section 8, Rule III of the Rules of Procedure of
the Office of the Ombudsman. Thus, the
modification of the offense charged, even

without affording the petitioners a new


preliminary investigation, did not amount to a
violation of their rights.
Rodis v. Sandiganbayan
The absence of a preliminary investigation is
not a ground for quashing an information, it
should have held the proceedings in the
criminal cases in abeyance pending resolution
by the Tanodbayan of petitioner's petition for
reinvestigation, as alternatively prayed for by
him in his motion to quash.
Quisay v. People
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.
As a general rule, complaints or informations
filed before the courts without the prior written
authority or approval of the foregoing
authorized officers renders the same defective
and, therefore, subject to quashal pursuant to
Section 3 (d), Rule 117 of the same Rules.
De Ocampo v. Secretary of Justice
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.
The use of the word may in a statute
commonly denote that it is directory in nature.
The term may is generally permissive only and
operates to confer discretion. Under Section
3(e) of Rule 112, it is within the discretion of
the investigation officer whether to set the
case for further hearings to clarify some
matters.
Pemberton v. De Lima
Probable cause need not be based on clear and
convincing evidence of guilt, as the
investigating officer acts upon probable cause
of reasonable belief. Probable cause implies
probability of guilt and requires more than bare
suspicion but less than evidence which would
justify a conviction. A finding of probable cause
needs only to rest on evidence showing that
more likely than not, a crime has been
committed by the suspect. There is no basis to
doubt that respondent De Lima judiciously
scrutinized the evidence on record. Based on

respondent De Limas assessment, there was


ample evidence submitted to establish
probable cause that petitioner murdered the
victim. Foregoing circumstances all taken
together leads to the fair and reasonable
inference that respondent is probably guilty of
killing Laude through treachery, abuse of
superior strength, and cruelty. Absence of
direct evidence does not preclude a finding of
probable cause.
Once there has been a judicial finding of
probable cause, an executive determination of
probable cause is irrelevant.
Once a complaint or information is filed in
Court, any disposition of the case as to its
dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the
Court.
A petition for certiorari questioning the validity
of the preliminary investigation in any other
venue is rendered moot by the issuance of a
warrant of arrest and the conduct of
arraignment.

Ching v. Secretary of Justice


Indeed, under Section 4, Rule 112 of the 2000
Rules of Criminal Procedure, the Information
shall be prepared by the Investigating
Prosecutor against the respondent only if he or
she finds probable cause to hold such
respondent for trial. The Investigating
Prosecutor acts without or in excess of his
authority under the Rule if the Information is
filed against the respondent despite absence of
evidence showing probable cause therefor. If
the Secretary of Justice reverses the Resolution
of the Investigating Prosecutor who found no
probable cause to hold the respondent for trial,
and orders such prosecutor to file the
Information despite the absence of probable
cause, the Secretary of Justice acts contrary to
law, without authority and/or in excess of
authority. Such resolution may likewise be
nullified in a petition for certiorari under Rule
65 of the Revised Rules of Civil Procedure.
In this case, petitioner failed to establish that
the Secretary of Justice committed grave abuse
of discretion in issuing the assailed resolutions.
Indeed, he acted in accord with law and the
evidence.
Roberts v. CA
There is nothing in Crespo vs. Mogul which bars
the DOJ from taking cognizance of an appeal,
by way of a petition for review, by an accused
in a criminal case from an unfavorable ruling of

the investigating prosecutor. It merely advised


the DOJ to, as far as practicable, refrain from
entertaining a petition for review or appeal
from the action of the fiscal, when the
complaint or information has already been filed
in Court.
Whether the DOJ would affirm or reverse the
challenged Joint Resolution is still a matter of
guesswork. Accordingly, it was premature for
respondent Judge Asuncion to deny the
motions to suspend proceedings and to defer
arraignment on the following grounds:
This case is already pending in this Court for
trial. To follow whatever opinion the Secretary
of Justice may have on the matter would
undermine the independence and integrity of
this Court. This Court is still capable of
administering justice.
The real and ultimate test of the independence
and integrity of this court is not the filing of the
aforementioned motions at that stage of the
proceedings but the filing of a motion to
dismiss or to withdraw the information on the
basis of a resolution of the petition for review
reversing the Joint Resolution of the
investigating prosecutor. But once a motion to
dismiss or withdraw the information is filed the
trial judge may grant or deny it, not out of
subservience to the Secretary of Justice, but in
faithful exercise of judicial prerogative.
Soliven v. Makasiar
In satisfying himself of the existence of
probable cause for the issuance of a warrant of
arrest, the judge is not required to personally
examine the complainant and his witnesses.
Following established doctrine and procedure,
he shall: (1) personally evaluate the report and
the supporting documents submitted by the
fiscal regarding the existence of probable
cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof
he finds no probable cause, he may disregard
the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of
probable cause.
People v. Dela Torre-Yadao
Section 6, Rule 112 of the Rules of Court gives
the trial court three options upon the filing of
the criminal information: (1) dismiss the case if
the evidence on record clearly failed to
establish the probable cause; (2) issue a
warrant of arrest if it finds probable cause; and
(3) order the prosecutor to present additional

evidence within five days from notice in case of


doubt as to the existence of probable cause.
But the option to order the prosecutor to
present an additional evidence is not
mandatory. The courts first option is to
immediately dismiss the case if the evidence
on record clearly fails to establish the probable
cause.
Pua v. Citibank
Cruz v. Arreola
Ramiscal v. Sandiganbayan
It should be noted that the supporting
documents submitted by the Office of the
Ombudsman to this Court included, among
others, the counter-affidavits submitted by the
accused at the preliminary investigation.
Parenthetically, there is no need, and the rules
do not require this Court, to enumerate in
detail what were the supporting documents it
considered in determining the existence of
probable cause for the issuance of the warrant
of arrest because the same are matters of
record that the parties can easily verify.
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. 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.
The periods provided in the Revised Rules of
Criminal Procedure are mandatory, and as
such, the judge must determine the presence
or absence of probable cause within such
periods. The Sandiganbayans determination of
probable cause is made ex parte and is
summary in nature, not adversarial.
Okabe v. Gutierrez

Leviste v. Alameda
People v. Serzo
Habeas Corpus
Ampatuan v. Macaraig
In matters involving the exercise of judgment
and discretion, mandamus cannot be used to
direct the manner or the particular way the
judgment and discretion are to be exercised.
Consequently, the Secretary of Justice may be
compelled by writ of mandamus to act on a
letter-request or a motion to include a person
in the information, but may not be compelled
by writ of mandamus to act in a certain way,
i.e., to grant or deny such letter- request or
motion.