ASSIGNMENT NO.

1.) What is Preliminary Investigation?

Section 1 of Rule 112 defines a preliminary investigation as “an inquiry or a proceeding the
purpose of which is 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.

2.) What is the nature of the right to Preliminary Investigation?

The nature of the right to a preliminary investigation is not required by the Constitution. The right
therefore is a statutory character and may be invoked only when specifically created by statute. But while
the right is a statutory rather than constitutional, since it has been established by statute, it becomes a
component of due process in criminal justice.

When so granted by statute, the right is not a mere formal or technical right. It is a substantive
right. To deny the claim of the accused to a preliminary investigation would be to deprive him the full
measure of his right to due process. Where the denial is tainted with grave abuse of discretion amounting
to lack of jurisdiction, a ground for a petition for certiorari and mandamus arises.

3.) What are the purposes of Preliminary Investigation?

1.) Court declared the following as the specific purposes of preliminary investigation:

a.) to inquire concerning the commission of a crime and the connection of the accused with it, in
order that he may be informed of the nature and character of the crime charged against him, and, if there
is probable cause for believing him guilty, that the State shall take the necessary steps to bring him to
trial: (b) to preserve the evidence and keep the witnesses within the control of the State; and (c) to
determine the amount of bail, if the offense is bailable. (Callo- Claridad v. Esteban)

2.) Preliminary investigation is also designed to free a respondent from the inconvenience, expense,
ignominy and stress of defending himself/ herself in the course of a formal trial, until the reasonable
probability of his or her guilt has been passed upon in a more or less summary proceeding by a competent
officer designated by law for that purpose.

4.) Who may conduct Preliminary Investigation?

1.) The following are authorized to conduct a preliminary investigation:

(a) Provincial or City Prosecutors and their assistants;

(b) National and Regional State Prosecutors;

(c) Other offices as may be authorized by law.

The authority of the above to conduct preliminary investigations shall include all crimes cognizable by the
proper court in their respective territorial jurisdiction.

2.) The following are also authorized to conduct a preliminary investigation:

 a.) Under the amendments to the Omnibus Election Code, the COMELEC, through its duly
authorized legal officers, has the power, concurrent with the other prosecuting arms of the government,
to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code
and to prosecute the same.

b.) The Office of the Ombudsman has the authority to investigate and prosecute on its own or on
complaint by any person, any act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of the government, the investigation of such cases.

c.) The Presidential Commission on Good Government with the assistance of the Office of the
Solicitor General and the other government agencies is empowered to investigate, file and prosecute
cases investigated by it.

5.) Explain the rules and procedure in the Preliminary Investigation being conducted by the Investigating
Prosecutor.

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 who 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 counter-affidavit 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 officer 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)

6.) Explain the rules on the review from a resolution of the Investigating Officer.

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.

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 any other 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 proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or move
for dismissal of the complaint or information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the Ombudsman

7.) When may warrant of arrest be issued?

(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.

(b) By the Municipal Trial Court- When required pursuant to the second paragraph of Section 1 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 shall be
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.

8.) What are the cases that do not need Preliminary Investigation?

1.) If a person is arrested lawfully without a warrant involving an offense which requires a
preliminary investigation i.e., the penalty is at least 4 years, 2 months, and 1 day, an information or
complaint may be filed against hum without need for a preliminary investigation. Instead, the person
arrested shall be required to undergo an inquest. This proceeding is required before a complaint or
information may be filed against the person arrested.

Inquest proceedings are proper only when the accused has been lawfully arrested without a
warrant. Thus, if a person is arrested by a police officer in flagrante delicto while robbing the victim
through violence or intimidation, the arrest is a lawful one and a preliminary investigation is not required
because he was validly arrested without a warrant.

2.) If he has been arrested in a place where an inquest prosecutor is available, an inquest will be
conducted instead of a preliminary investigation. In the absence or unavailability of an inquest prosecutor,
an inquest may be dispensed with. The rule, hence, allows the filing of the complaint directly with the
proper court by the offended party or arresting officer or person.

9.) What are the remedies of the accused if there is no Preliminary Investigation?

An accused who wants to question the regularity or absence of a preliminary investigation must
do so before he enters his plea. The court shall resolve the matter as early as practicable but not later
than the start of the trial. An application for or admission of the accused to bail does not bar him from
raising such question. Failure to invoke the right before entering a plea will amount to a waiver.

The absence of a preliminary investigation is not a ground for the quashal of a complaint or
information. It was, thus, held that if there is no preliminary investigation and the accused before entering
his plea calls the attention of the court to his deprivation of the required preliminary investigation, the
court should not dismiss the information. It should remand the case to the prosecutor so that the
investigation may be conducted. Dismissal of the case is not the remedy.

10.) What is the effect of posting of bail on the absence or lack of Preliminary Investigation?

Posting of bail is not a bar to objections on absence or lack of preliminary investigation, provided
that he raises them before entering his plea. The court shall resolve the matter as early as practicable but
not later than the start of the trial of the case.
11.) What is inquest? Explain the rules and procedure on inquest.

An inquest is an investigation conducted by a prosecutor in criminal cases where a person has

been lawfully arrested and detained without a warrant of arrest. It is informal and summary and its
purpose is to determine whether or not the person detained should remain under custody and then
charged in court.

12.) Explain the rules and procedure in the conduct of Preliminary Investigation by the Ombudsman and
the review of the resolution thereof.

The Office of the Ombudsman has the authority to investigate and prosecute on its own or on
complaint by any person, any act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of the government, the investigation of such cases.

In criminal cases, the ruling of the Ombudsman shall be elevated to the Supreme Court by way of
Rule 65. The Supreme Court’s power of review over resolutions and orders of the Office of the
Ombudsman is restricted only to determining whether grave abuse of discretion has been committed by
it. The Court is not authorized to correct every error or mistake of the Office of the Ombudsman other
than grave abuse of discretion.

13.) Can the PCGG conduct Preliminary Investigation?

YES. The Presidential Commission on Good Government with the assistance of the Office of the
Solicitor General and the other government agencies is empowered to investigate, file and prosecute
cases investigated by it.

14.) Can the COMELEC conduct Preliminary Investigation?

YES. Under the amendments to the Omnibus Election Code, the COMELEC, through its duly
authorized legal officers, has the power, concurrent with the other prosecuting arms of the government,
to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code
and to prosecute the same.

15.) Can the Judges conduct Preliminary Investigation?

NO. Judges of first level courts are no longer allowed to conduct preliminary investigations. This
is pursuant to the amendment made by the Court on August 30, 2005.

16.) Explain the rules if there is a Motion for Reinvestigation

The aggrieved party under current practice is not precluded from filing a motion for
reconsideration within 15 days from receipt of the assailed resolution. If the motion is denied, the
aggrieved party may appeal within 15 days from the denial of the motion for reconsideration.

17.) Who reviews the Decision of the Secretary of Justice from a Petition for Review of Resolution of
the Investigating Prosecutor during the Preliminary Investigation?

As a rule, the action of the Secretary of Justice is not subject to the review of courts unless there
is a showing that he committed a grave abuse of discretion amounting to an excess or lack of jurisdiction
in issuing the challenged resolution. The authority of the prosecutor and the DOJ is not absolute; it cannot
be exercised arbitrarily or capriciously. Where the findings of the investigating prosecutor or the Secretary
of the DOJ as to the existence of probable cause are equivalent to a gross misapprehension of facts,
certiorari will lie to correct these errors.

In Agrovan V. San Miguel Corporation, the Court held that the Court of Appeals is clothed with
the jurisdiction to review the resolution issued by the Secretary of Justice through a petition for certiorari
under Rule 65 of the Rules of Court, solely on the ground that the Secretary committed grave abuse of
discretion amounting to lack of jurisdiction. However, the Court also ruled that the jurisdiction over a
petition for certiorari assailing the DOJ resolution in a preliminary investigation involving tax and tariff
offenses was transferred to the Court of Tax Appeals by virtue of RA 9282.