112JAM

RULE 112 PRELIMINARY INVESTIGATION
Preliminary investigation defined; when required 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 complaint 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. Definition of Preliminary Investigation Hashim vs. Boncan
The investigation is advisedly called preliminary, to be followed by the trial proper. The investigating judge or prosecuting officer acts upon probable cause and reasonable belief, not upon proof beyond a reasonable doubt. The occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. When all this is fulfilled, the accused will not be permitted to cast about for fancied reasons to delay the proceedings; the time to ask for more is at the trial. The petitioner's case is a good example. A preliminary investigation was conducted by the respondent Fiscal at which evidence was adduced warranting the filing of an information against the petitioner. The information was filed in Court, and the presiding judge, upon the strength of the said preliminary investigation and sworn information, issued a warrant for the arrest of the petitioner. To ask for the abstract of testimony at this stage of the proceedings, ostensibly for no other purpose than to scrutinize the same evidence which convinced the respondent Fiscal and the presiding Judge that there was probable ground to proceed against the petitioner, is in effect, to ask for another preliminary investigation. Not this, however, but a trial upon the merits, is what section 4 of Rule 108 ordains.
Purpose of Preliminary Investigation Hashim vs. Boncan

Viewed in the light of fundamental principles, the right to a preliminary investigation is statutory, not constitutional. Its oft-repeated purpose is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions. The new Rules were drafted in the light of the Court's experience with cases where preliminary investigations had dragged on for weeks and even months. The Court had intended to remove this clog upon the judicial machinery and to make a preliminary investigation as simple and as speedy as is consistent with the substantial rights of the accused.
Waiver of Right to Prelim Investigations People vs. Buluran

The failure to accord appellants their right to preliminary investigation did not impair the validity of the information nor affect the jurisdiction of the trial court. While the right to preliminary investigation is a substantive right and not a mere formal or technical right of the accused, nevertheless, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. It appearing that appellants only raised the issue of lack of preliminary investigation during appeal, their right to a preliminary investigation was deemed waived when they entered their respective pleas of not guilty.
Layus vs. Sandigan Bayan

LAYUS also puts in issue the lack of authentication of the document presented during the preliminary investigation. As held in Cruz, Jr. v. People, the only purpose of a preliminary investigation is "to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof." We have maintained a consistent policy of non-interference in the determination by the Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of it's discretion. While it may be true that the documents were unauthenticated, this is a matter of defense best passed upon after a full-blown trial. As ruled in Webb v. De Leon, "the validity and the merits of a party's defense or accusation as well as the admissibility of testimonies and evidences are better ventilated during the trial stage than in the preliminary investigation level."
pg. 1 JAMnotes Rule 112 Criminal Procedure
Equally without merit is the alleged breach of agreement to stay the reglementary period. We find it incredible that the prosecution or the Sandiganbayan would agree to suspend the running of the prescriptive period. Settled is the rule that the right to preliminary investigation may be waived by the failure of the respondent to invoke the same prior to or at least at the time of the arraignment. In the instant case, the motion was filed way out of time and after raising virtually the same issues, so it was properly denied by the Sandiganbayan.
People vs. Veloso

The record shows that on July 5, 1970, Judge Templo conducted a preliminary examination, and on the basis of the sworn statements of Filemon Odiamar and his witnesses, the corresponding information was filed on June 17, 1970 in the City Court of Naga City. On June 22, 1970, Judge Templo set the case for preliminary investigation to afford the accused the occasion to confront the witnesses against him and to present his own evidence. But instead of availing himself of this opportunity, the accused filed a manifestation stating that he,"waives his right to present evidence at the second stage of the preliminary investigation." Hence, the case was forwarded to the Court of First Instance of Camarines Sur for further proceedings. It further appears that accused entered his non-guilty plea without raising the question of lack of preliminary investigation. The aforesaid actuations on the part of the accused constitute waiver of his right to preliminary investigation. It iswell-settled that the right to preliminary investigation is not a fundamental right and that the same may be waived expressly or by silence. And it has been held that such waiver carried with it the waiver of any procedural error or irregularity that may have attended the preliminary investigation.
No waiver Go vs. CA
Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima faciecase exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in factgrant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. 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. 22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigationbefore respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right.
Nature of Preliminary Investigation Lejano vs. De leon

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary -Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice.
Uy vs Ombudsman
At the core of the present controversy is the regularity, in the context of accepted standards of due process, of the Ombudsm ans conduct of the Sandiganbayan-ordered preliminary investigation. The petition must fail if the Ombudsman complied with the basic requirements of due process and the prevailing rules and jurisprudence on preliminary investigation. A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, and oppressive prosecution,; to protect him from an open and public accusation of a crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due process in administering criminal justice. The right to have a preliminary investigation conducted
before being bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his right to due process. Thus, as in a court proceeding (albeit with appropriate adjustments because it is essentially still an administrative proceeding where in which the prosecutor or investigating officer is a quasi-judicial officer by the nature of his functions), a preliminary investigation is subject to the requirements of both substantive and procedural due process. This view may be less strict in its formulation than what we held in Cojuangco, Jr. vs. PCGG, et al.when we said: It must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in order to assure that a person undergoing such preliminary investigation will be afforded due process. xxx Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the production and weighing of evidence, and a decision is rendered thereon. but we commonly recognize the need for the observance of due process. We likewise fully agree with Cojuangco in terms of the level of scrutiny that must be made we do not expect the rigorous standards of a criminal trial, but "[Ss]ufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal."
Filing of amended Information w/o preliminary investigation Teehankee vs. Madayag

Is there a need of a preliminary investigation on the new charge? No need, because the crime has not changed. If you change the crime or when there is substitution, there is a need for another preliminary investigation. Since it is only a formal amendment, preliminary investigation is not necessary. It consequently follows that since only a formal amendment was involved and introduced in the second information, a preliminary investigation is unnecessary and cannot be demanded by the accused. The filing of the amended information without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and to be protected from an open and public accusation of a crime, as well as from the trouble, expenses and anxiety of a public trial. 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. Nota Bene: A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. Thus, the following have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and
(4) an amendment which does not adversely affect any substantial right of the accused, such as his right to invoke prescription.
Requiring Counter-Affidavit NOT Mandatory Borlongan Jr. vs. Pena

ISSUE: Whether or not there is the need for COUNTER-AFFIDAVIT to determine a probable cause against the defendant. Counter-affidavits are not required to determine a probable cause. Petitioners contend that they were denied due process as they were unable to submit their counter-affidavits and were not accorded the right to a preliminary investigation. Considering that the complaint of Atty. Pea was filed in September 1998, the rule then applicable was the 1985 Rules of Criminal Procedure. The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit:
Section 1. Definition. Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure. (a) Where filed with the fiscal. If the complaint is filed directly with the fiscal or state prosecutor, the procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant. (underscoring supplied) The crime to which petitioners were charged was defined and penalized under second paragraph of Article 172 in relation to Article 171 of the Revised Penal Code. Art. 172. Falsification by private individual and use of falsified documents. The penalty of prision correccional in its medium and maximum periods and a fine of not more thanP5,000 pesos shall be imposed upon: 1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree. Prision correccional in its medium and maximum periods translates to imprisonment of 2 years, 4 months and 1 day. The next lower in degree to prision correccional is arresto mayor in its maximum period to prision correccional in its minimum period which translates to 4 months and 1 day to 2 years and 4 months of imprisonment. Since the crime committed is not covered by the Rules of Summary Procedure, the case falls within the exclusive jurisdiction of the first level courts but applying the ordinary rules. In such instance, preliminary investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is not applicable since such section covers only crimes cognizable by the RTC. That which is stated in Section 9(a) is the applicable rule. Under this Rule, Sec. 9(a), while probable cause should first be determined before an information may be filed in court, the prosecutor is not mandated to require the respondent to submit his counter-affidavits to oppose the complaint. In the determination of probable cause, the prosecutor may solely rely on the complaint, affidavits and other supporting documents submitted by the complainant. If he does not find probable cause, the prosecutor may dismiss outright the complaint or if he finds probable cause or sufficient reason to proceed with the case, he shall issue a resolution and file the corresponding information
Absence of Preliminary Investigations People vs. Gomez

It is clear, therefore, that the required investigations were complied with. But then, assuming that the informations did not contain the requisite certificates regarding the Fiscal's having held a preliminary investigation, the omissions are not necessarily fatal. The absence of preliminary investigations does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective. If there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, "instead of dismissing the information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted." (People vs. Casiano, 1 SCRA 478). The defendants in these cases did not question the validity of the informations on the ground of defective certifications or the right to preliminary investigations before they entered the plea of not guilty. They filed the motion to declare informations and warrants of arrest null and void only after more than one (1) year thereafter. Consequently, when they entered a plea of not guilty, they thereby waived all objections that are grounds for a motion to quash, except lack of jurisdiction or failure of the information to charge an offense. Thus, they waived the right to a preliminary investigation when they failed to invoke it prior to, or at least at, the time of the entry of their plea in the Court of First Instance. Inasmuch as the settled doctrine in this jurisdiction is that the right to the preliminary investigation itself must be asserted or invoked before the plea, otherwise, it is deemed waived, it stands to reason, that the absence of the certification in question is also waived by failure to allege it before the plea." (Estrella vs. Ruiz, 58 SCRA 779)
Doromal vs. Sandiganbayan

The petitioner contends that as the preliminary investigation that was conducted prior to the filing of the original information in Criminal Case No. 12766 was nullified by this Court, another preliminary investigation should have been conducted before the new information in Criminal Case No. 12893 was filed against him. The denial of his right to such investigation allegedly violates his right to due process and constitutes a ground to quash the information. On the other hand, the public respondent argues that another preliminary investigation is unnecessary because both old and new informations involve the same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987 Constitution. Moreover, the petitioner allegedly waived the second preliminary investigation by his failure to comply with the Court's Order dated August 12, 1988 directing him to submit a statement of new or additional facts, duly supported by photo copies of documents which he would present should a new preliminary investigation be ordered (Annex H, p. 94, Rollo). The petition is meritorious. A new preliminary investigation of the charge against the petitioner is in order not only because the first was a nullity (a dead limb on the judicial tree which should be lopped off and wholly disregarded"-Anuran vs. Aquino, 38 Phil. 29) but also because the accused demands it as his right. Moreover, the charge against him had been changed, as directed by the Ombudsman. Thus, while the first information in Criminal Case No. 12766 charge that the DITCentered into a business transaction or contract with the Department of Education, Culture and Sports and the National Manpower and Youth Council, ... which business, contracts or transactions he [petitioner] is prohibited by law and the constitution from having any interest. (P. 70, Rollo.) the new information in Criminal Case No. 12883 alleges that the petitioner: unlawfully participate[d] in a business through the Doromal International Trading Corporation, a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo.) The petitioner's right to a preliminary investigation of the new charge is secured to him by the following provisions of Rule 112 of the 1985 Rules on Criminal Procedure: SEC. 3. Procedure. ... no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted. ..... SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court, the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted; on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rules .... If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. That right of the accused 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" (U.S. vs. Marfori, 35 Phil. 666). The need to conduct a new preliminary investigation when the defendant demands it and the allegations of the complaint have been amended, has been more than once affirmed by this Court: III. (a) ..., the Court finds that since the information for alleged violation of the Anti-Graft Law was filed without any previous notice to petitioners and due preliminary investigation thereof, and despite the dismissal of the original charge for falsification as being 'without any factual or legal basis, 'petitioners are entitled to a new preliminary investigation for the graft charge, with all the rights to which they are entitled under section 1 of Republic Act No. 5180, approved September 8, 1967, as invoked by them anew from respondent court, viz, the submittal of the testimonies in affidavit form of the complainant and his witnesses duly sworn to before the investigating fiscal, and the right of accused, through counsel, to cross-examine them and to adduce evidence in their defense. In line with the settled doctrine as restated in People vs. Abejuela (38 SCRA 324), respondent court shall hold in abeyance all proceedings in the case before it until after the outcome of such new preliminary investigation. (Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours). The right of the accused not to be brought to trial except when remanded therefor as a result of a preliminary examination before a committing magistrate, it has been held is a substantial one. Its denial over the objections of the accused is prejudicial error in that it subjects the accused to the loss of life, liberty or property without due process of law. (Conde vs. Judge of Court of First Instance of Tayabas, 45 Phil. 173,176.) The absence of a preliminary investigation if it is not waived may amount to a denial of due process. (San Diego vs. Hernandez, 24 SCRA 110, 114.)
In this jurisdiction, the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is statutory and it exists and the right thereto can be invoked when so established and granted by law.(Mariano Marcos, et al. vs. Roman A. Cruz, 68 Phil. 96; Emphasis supplied.) The Solicitor General's argument that the right to a preliminary investigation may be waived and was in fact waived by the petitioner, impliedly admits that the right exists. Since the right belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it. However, as the absence of a preliminary investigation is not a ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in the Sandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile 139 SCRA 349 and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4: The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence,the court, instead of dismissing the information should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted. (See People vs. Gomez, 117 SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this case, the Tanodbayan has the duty to conduct the said investigation. There is no merit in petitioner's insistence that the information should be quashed because the Special Prosecutor admitted in the Sandiganbayan that he does not possess any document signed and/or submitted to the DECS by the petitioner after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly belies the averment in the information that the petitioner "participated' in the business of the DITC in which he is prohibited by the Constitution or by law from having any interest. (Sec. 3-h, RA No. 3019).
Standard in determining Probable Cause Allado vs Diokno

Accordingly, before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. In the Order of respondent judge dated 11 February 1994, it is expressly stated that "[t]his court after careful evaluation of the evidence on record, believes and rules that probable cause exists; and therefore, a warrant of arrest should be issued." However, we are unable to see how respondent judge arrived at such ruling. We have painstakingly examined the records and we cannot find any support for his conclusion. On the contrary, we discern a number of reasons why we consider the evidence submitted to be insufficient for a finding of probable cause against petitioners. Clearly, probable cause may not be established simply by showing that a trial judge subjectively believes that he has good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional protection would be demeaned and the people would be "secure in their persons, houses, papers and effects" only in the fallible discretion of the judge. 44 On the contrary, the probable cause test is an objective one, for in order that there be probable cause the facts and circumstances must be such as would warrant a belief by a reasonably discreet and prudent man that the accused is guilty of the crime which has just been committed. 45 This, as we said, is the standard. Hence, if upon the filing of the information in court the trial judge, after reviewing the information and the documents attached thereto, finds that no probable cause exists must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists. In the case at bench Umbal's sworn statement is laden with inconsistencies and improbabilities. Bato's counter-affidavit was considered without giving petitioners the opportunity to refute the same. The PACC which gathered the evidence appears to have had a hand in the determination of probable cause in the preliminary inquiry as the undated resolution of the panel not only bears the letterhead of PACC but was also recommended for approval by the head of the PACC Task Force. Then petitioners were given the runaround in securing a copy of the resolution and the information against them. Indeed, the task of ridding society of criminals and misfits and sending them to jail in the hope that they will in the future reform and be productive members of the community rests both on the judiciousness of judges and the prudence of prosecutors. And, whether it is a preliminary investigation by the prosecutor, which ascertains if the respondent should be held for trial, or a preliminary inquiry by the trial judge which determines if an arrest warrant should issue, the bottomline is that there is a standard in the determination of the existence of probable cause, i.e., there should be facts and circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the crime with which he is charged. Judges and prosecutors are not off on a frolic of their own, but rather engaged in a delicate legal duty defined by law and jurisprudence.
Two kinds of Preliminary Investigations Roberts vs CA

Issue # 2. Whether public respondent Judge Asuncion committed grave abuse of discretion in ordering the issuance of warrants of arrest without examining the records of the preliminary investigation. Section 2, Article III of the present Constitution provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction; 59 in cases covered by the rule on summary procedure where the accused fails to appear when required; 60 and in cases filed with them which are cognizable by the Regional Trial Courts (RTCs); 61 and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs and MCTCs. 62 As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of the complainant and the 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. As to the second, this Court held in Soliven vs. Makasiar 63 that the judge is not required to personally examine the complainant and the witnesses, but [f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and 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. 64 Sound policy supports this procedure, "otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts." It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now prosecutor); they must evaluate the report and the supporting document. In this sense, the aforementioned requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which provided in part as follows: 4. In satisfying himself of the existence of a probable cause for the issuance of a warrant of arrest, the judge, following established doctrine and procedure, may either: (a) Rely upon the fiscal's certification of the existence of probable cause whether or not the case is cognizable only by the Regional Trial Court and on the basis thereof, issue a warrant of arrest. . . . This requirement of evaluation not only of the report or certification of the fiscal but also of the supporting documents was further explained in People vs. Inting, 65 where this Court specified what the documents may consist of, viz., "the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination" of probable cause. Thus: We emphasize the important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution). First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. In adverting to a statement in People vs. Delgado 66 that the judge may rely on the resolution of the Commission on Elections (COMELEC) to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest, this Court stressed in Lim vs. Felix 67that Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it. And noting that judges still suffer from the inertia of decisions and practice under the 1935 and 1973 Constitutions, this Court found it necessary to restate the rule "in greater detail and hopefully clearer terms." It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that 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 extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief as or detailed as the circumstances of each case require. To be sure, 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. This Court then set aside for being null and void the challenged order of respondent Judge Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely on the basis of the prosecutor's certification in the informations that there existed probable cause "without having before him any other basis for his personal determination of the existence of a probable cause." In Allado vs. Diokno, 68 this Court also ruled that "before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof." In the recent case of Webb vs. De Leon, 69 this Court rejected the thesis of the petitioners of absence of probable cause and sustained the investigating panel's and the respondent Judge's findings of probable cause. After quoting extensively from Soliven vs. Makasiar, 70 this Court explicitly pointed out: Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of the guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. (emphasis supplied) The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigating prosecutor's certification in an information or his resolution which is made the basis for the filing of the information, or both, would suffice in the judicial determination of probable cause for the issuance of a warrant of arrest. In Webb, this Court assumed that since the respondent Judges had before them not only the 26-page resolution of the investigating panel but also the affidavits of the prosecution witnesses and even the counter-affidavits of the respondents, they (judges) made personal evaluation of the evidence attached to the records of the case. Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed by the certification 71 of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, he had only the information, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor's finding of probable cause. And strangely enough, he made no specific finding of probable cause; he merely directed the issuance of warrants of arrest "after June 21, 1993." It may, however, be argued that the directive presupposes a finding of probable cause. But then compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic. ISSUE # 5. Whether this Court may determine in this proceedings the existence of probable cause either for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime of estafa. In criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative. In People vs. Inting, 73 this Court aptly stated: And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. .... We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. . . . Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to this rule. Among the exceptions are enumerated in Brocka vs. Enrile 74 as follows: a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); d. When the acts of the officer are without or in excess of authority (Planas vs. Oil, 67 Phil. 62); e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L- 59524, February 18, 1985, 134 SCRA 438). 7. Preliminary injunction has been issued by the Supreme Court to prevent to threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L- 6374, August 1, 1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.) In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation, as it did in Salonga vs. Pao, 75 Allado, and Webb. There can be no doubt that, in light of the several thousand private complainants in Criminal Case No. Q-93-43198 and several thousands more in different parts of the country who are similarly situated as the former for being holders of "349" Pepsi crowns, any affirmative holding of probable cause in the said case may cause or provoke, as justly feared by the petitioners, the filing of several thousand cases in various courts throughout the country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures for premiums on bailbonds and for travels from one court to another throughout the length and breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much of their attention, time, and energy, which they could devote to other equally, if not more, important cases. Such a frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions a situation already long conceded by this Court to be an exception to the general rule that criminal prosecutions may not be restrained or stayed by injunction. 76 We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for the issuance of warrants of arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the respondent Judge did not, in fact, find that probable cause exists, and if he did he did not have the basis therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the records of the preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court. They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the latter's 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform their duty.
Meaning of Probable Cause Sarigumba vs. Sandiganbayan

In the present cases, the Sandiganbayan did not commit grave abuse of its discretion in issuing the assailed resolutions. Probable cause, for purposes of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof. The determination of its existence lies within the discretion of the prosecuting officers after conducting a preliminary investigation upon complaint of an offended party. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.Specifically, probable cause to warrant arrest requires such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offen se has been committed by the person sought to be arrested. In the present case, the Sandiganbayan found probable cause for the issuance of warrants for the arrest of the petitioners for one count of malversation and two counts of falsification of public documents against petitioner Sarigumba. The graft courts finding was based on the allegation in the Information, the Resolution of the Ombudsman finding probable cause for the filing of the said Informations, the documentary evidence appended thereto, as well as the facts and circumstances unearthed during the clarificatory hearing of October 17, 2000. After the clarificatory hearings on the petitioners motion to dismiss the cases, the Sandiganbayan found probable cause for the issuance of warrants for their arrest and for the court to proceed to trial. The felony consists not only in misappropriation or converting public funds or property to ones personal use but also by knowingly allowing others to make use of or misappropriate the same. An accountable officer may thus be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in the officers account which he has not been able to explain satisfactorily. All that is essential is proof that the accountable officer has received public funds but that when demand therefor is made, he is unable to satisfactorily account for the same.The law declares that the failure of the public officer to account for such public funds or property upon demand by any duly-authorized officer shall be prima facie evidence that he has appropriated the same for his personal use. The bare fact that the barangay captains were able to return the amounts they received from the petitioner or liquidate the same after demand therefor does not preclude the finding of probable cause for malversation. Whether or not the barangay captains acted in good faith is a matter of defense on the part of the petitioner Sarigumba. Even if the barangay captains had indeed acted in good faith, still, if petitioner Sarigumba had failed to make it clear before or when he distributed the money to them that the money was for the peace and order campaign in their respective barangays, he may be criminally liable for malversation by culpa.
Fuentes Jr. vs. Office of the Ombudsman

Case law has it that this Court does not ordinarily interfere with the discretion of the Office of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts if necessary. Certainly, it has been the policy of this Court to vest upon the Office of the Ombudsman wide latitude of investigatory and prosecutory prerogatives in the exercise of its power to pass upon criminal complaints. The rationale of this rule is based not only upon respect for the investigatory and prosecutory powers that the Office of the Ombudsman is granted under the present Constitution, but upon practicality as well; otherwise, the functions of the courts would be perilously bound by numerous petitions assailing the result of the investigatory proceedings conducted by the Office, in much the same way that the courts would be saturated if compelled to review the prosecutors exercise of discretion each time they decide to file an information or dismiss a complaint. It is settled that the findings of facts of quasi-judicial bodies, like the Deputy Ombudsman and the Ombudsman, may be nullified on the ground of grave abuse of discretion amounting to excess or lack of jurisdiction. There is grave abuse of discretion when the power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law. The Court defined probable cause for the filing of an Information in Presidential Commission on Good Government v. Desierto thus: Probable cause is a reasonable ground for presuming that a matter is or may be well-founded on such state of facts in the prosecutor's mind as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that it is so. The term does not mean actual and positive cause; neither does it import absolute certainty. It is based merely on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to secure a conviction. It is enough that the act or the omission complained of is believed to constitute the offense charged. Precisely, there is a trial to allow the reception of evidence for the prosecution in support of the charge. It ought to be emphasized that in determining probable cause, the average person weighs facts and circumstances without resorting to the calibrations of technical rules of evidence, of which such person's knowledge is nil. Rather, the lay person usually relies on the calculus of common sense, of which all reasonable persons have an abundance.
Thus, the Ombudsman did not commit a grave abuse of his discretion in giving his imprimatur to the Resolution and Order of the Deputy Ombudsman. In fact, the Ombudsman correctly ruled that Respondent has failed to prove his allegations of criminal activity against the complainant. His statement that it is his duty to see to it that the mayors permit is granted only to legitimate businesses, not to legitimize an otherwise illegal activity is laudable, but such statement implies or presuppos es that complainant was or is engaged in illegal activity. It must be noted that there is no evidence showing that a criminal case for illegal activity has been filed against the complainant from the time she applied for a business permit in January 2002 up to and until the present. Being a ship chandler for Smith Bell Shipping Company, which complainant was at the time this case was instituted, is certainly not an illegal activity. Mere suspicion that a person is engaged in illegal activity, not being equivalent to proof, is insufficient to warrant the deprivation of livelihood or legitimate source of income. This is certainly the effect if an applicant who has complied with all the legal requirements for a mayors permit is not granted one on mere suspic ion that he is engaged in illegal activity.
Vergara vs. Ombudsman

On the determination of probable cause by the Ombudsman and the grave abuse of discretion in the acquisition of road lots The mandate of the Office of the Ombudsman is expressed in Section 12, Article XI of the Constitution which states: Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. Section 13, Article XI of the Constitution vests in the Office of the Ombudsman the following powers, functions, and duties: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the government, and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Boldfacing supplied) Republic Act No. 6770 (RA 6770), or the Ombudsman Act of 1989, granted the Office of the Ombudsman full administrative authority. Section 13 of RA 6770 restates the mandate of the Office of the Ombudsman: Sec. 13. Mandate. - The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the government, or of any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. Section 15(1) of RA 6770 substantially reiterates the investigatory powers of the Office of the Ombudsman: Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: (1) 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 his primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such cases; Jurisprudence explains that the Office of the Ombudsman is vested with the sole power to investigate and prosecute, motu proprio or on complaint of 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.42 The Ombudsmans power to investigate and to prosecute is plenary and unqualified.43
The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. The Ombudsman may dismiss the complaint should the Ombudsman find the complaint insufficient in form or substance, or the Ombudsman may proceed with the investigation if, in the Ombudsmans view, the complaint is in due form and substance. 44 Hence, the filing or non-filing of the information is primarily lodged within the "full discretion" of the Ombudsman.45 This Court has consistently adopted a policy of non-interference in the exercise of the Ombudsmans constitutionally mandated powers. The Ombudsman, which is "beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service."46 However, this Court is not precluded from reviewing the Ombudsmans action when there is grave abuse of discretion, in which case the certiorari jurisdiction of the Court may be exceptionally invoked pursuant to Section 1, Article VIII of the Constitution.47 We have enumerated instances where the courts may interfere with the Ombudsmans investigatory powers: (a) To afford 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 prejudicial 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; (f) When double jeopardy is clearly apparent; (g) Where the court has no jurisdiction over the offense; (h) Where it is a case of persecution rather than prosecution; (i) Where the charges are manifestly false and motivated by the lust for vengeance.48 These exceptions are not present in this case. However, petitioner argues that the assailed Resolution of the Ombudsman dwelt only on the alleged reasonableness of the price of the property. Petitioner claims that the Resolution did not pass upon the more serious issue that Calamba City had paid for several lots that the City should not have paid for because they were road lots. The Ombudsman, in issuing the assailed Resolution, found no probable cause to hold any of the respondents liable for violation of Section 3(e) of RA 3019. The Ombudsman found that the subject lots were bought at P3,800 per square meter, an amount lower than their zonal valuation of P6,000 per square meter. Based on this computation, Calamba City paid for a total area of 33,952 square meters49 instead of the original 55,000 square meters as authorized in the City Councils Resolution No. 280, Series of 2001. Contrary to petitioners allegation that Lot 5 with an area of 3,062 square meters and Lot 8 with an area of 3,327 square meters are easement/creeks and road lot respectively,50 the sketch plan51 submitted by petitioner as Annex L in his Affidavit-Complaint and the TCTs52 of the properties indicate that these are parcels of land. A perusal of the records shows that the findings of fact by the Ombudsman are supported by substantial evidence. As long as substantial evidence supports it, the Ombudsmans ruling will not be overturned. 53 Petitioner, in arguing that the Ombudsman committed grave abuse of discretion, raises questions of fact. This Court is not a trier of facts, more so in the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, but only questions of lack of jurisdiction or grave abuse of discretion can be raised.54 The rationale behind this rule is explained in this wise: The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.55 In this case, the Ombudsman dismissed petitioners complaint for lack of probable cause based on the Ombudsmans appreciation and review of the evidence presented. In dismissing the complaint, the Ombudsman did not commit grave abuse of discretion. Probable cause is defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.56 Probable cause need not be based on clear and convincing evidence of guilt, or on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt, but it certainly demands more than bare suspicion and can never be left to presupposition, conjecture, or even convincing logic.57 In Rubio v. Ombudsman,58 this Court held that what is contextually punishable under Section 3(e) of RA 3019 is the act of causing any undue injury to any party, or the giving to any private party unwarranted benefits, advantage or preference in the discharge of the public officers functions. In this case, after evaluating the evidence presented,59 the Ombudsman categorically ruled that there was no evidence to show actual injury or damage to the city government to warrant the indictment of respondents for violation of Section 3(e) of RA 3019. Further, this Court held in Pecho v. Sandiganbayan,60that "causing undue injury to any party, including the government, could only mean actual injury or damage which must be established by evidence." Here, the Ombudsman found that petitioner had not substantiated his claim against respondents for the crime charged. This Court is not inclined to interfere with the evaluation of the evidence presented before the Ombudsman. We reiterate the rule that courts do not interfere in the Ombudsmans exercise of discretion in determining probable cause unless there are compelling reasons. The Ombudsmans finding of probable cause, or lack of it, is entitled to great respect absent a showing o f grave abuse of
discretion. Besides, to justify the issuance of the writ of certiorari on the ground of abuse of discretion, the abuse must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction.
Sistoza vs. Desierto

Simply alleging each or all of these methods is not enough to establish probable cause, for it is well settled that allegation does not amount to proof. Nor can we deduce any or all of the modes from mere speculation or hypothesis since good faith on the part of petitioner as with any other person is presumed. The facts themselves must demonstrate evident bad faith which connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. Clearly, the issue of petitioner Sistoza's criminal liability does not depend solely upon the allegedly scandalous irregularity of the bidding procedure for which prosecution may perhaps be proper. For even if it were true and proved beyond reasonable doubt that the bidding had been rigged, an issue that we do not confront and decide in the instant case, this pronouncement alone does not automatically result in finding the act of petitioner similarly culpable. It is presumed that he acted in good faith in relying upon the documents he signed and thereafter endorsed. To establish a prima facie case against petitioner for violation of Sec. 3, par. (e), RA 3019, the prosecution must show not only the defects in the bidding procedure, a circumstance which we need not presently determine, but also the alleged evident bad faith, gross inexcusable negligence or manifest partiality of petitioner in affixing his signature on the purchase order and repeatedly endorsing the award earlier made by his subordinates despite his knowledge that the winning bidder did not offer the lowest price. Absent a well-grounded and reasonable belief that petitioner perpetrated these acts in the criminal manner he is accused of, there is no basis for declaring the existence of probable cause. Moreover, reliance in good faith by a head of office on a subordinate upon whom the primary responsibility rests negates an imputation of conspiracy by gross inexcusable negligence to commit graft and corruption. There was no cause for petitioner Sistoza to complain nor dispute the choice nor even investigate further since neither the defects in the process nor the unfairness or injustice in the actions of his subalterns are definite, certain, patent and palpable from a perusal of the supporting documents. To paraphrase Magsuci v. Sandiganbayan, petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official documents and assessments of his subordinates, but for conspiracy of silence and inaction to exist it is essential that there must be patent and conscious criminal design, not merely inadvertence, under circumstances that would have pricked curiosity and prompted inquiries into the transaction because of obvious and definite defects in its execution and substance. In Sabiniano v. Court of Appeals, we held that a signature on a voucher, check or warrant, even if required by law to be affixed thereon, is not enough to sustain a finding of conspiracy among public officials and employees charged with defraudation.
Officers authorized to conduct preliminary investigation as Amended Oct 3, 2005 SEC. 2. Officers authorized to conduct preliminary investigations- The following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (NO MORE JUDGE OF MTC OR MCTC) (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. Prosecutor has direction and control Castillo vs. Villaluz
During the time that it existed, 13 the Circuit Criminal Court had the same power as a Court of First Instance to conduct preliminary investigations of offenses cognizable by it. So we have ruled in two (2) cases: Collector of Customs v. Villaluz,71 SCRA 356, 14 and de Guzman v. Villaluz, 117 SCRA 182. 15 Now, His Honor was evidently of the view that his determination of the existence of probable cause, founded on the results of his own preliminary investigation, was the last word on the matter, and the Provincial Fiscal had no option except to draw up and file the information on the basis of said preliminary investigation. This is why respondent Judge gave petitioner Fiscal only twenty-four (24) hours "to file the corresponding information." The Judge is mistaken. It is the fiscal who is given by law "direction and control" of all criminal actions. 16 It is he who initiates all prosecutions in the name of the People of the Philippines, by information or complaint, against all persons who appear to be responsible for
the offense involved. 17 It is he (or other public prosecutor), therefore, who is primarily responsible for ascertaining through a preliminary inquiry or proceeding "whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof." 18 That function, to repeat, is not judicial but executive. 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," and the consequent policy, as we said in Salta, was that "wherever there were enough fiscals or prosecutors to conduct preliminary investigations, courts were to leave that job which is essentially executive to them." It follows that the conclusions derived by a judge from his own investigation cannot be superior to and conclusively binding on the fiscal or public prosecutor, in whom that function is principally and more logically lodged. These considerations argue against giving the term "refer" used in Section 13 of the former Rule 112-which provided that if the judge, after conducting a preliminary investigation finds probable cause against a defendant," ... be shall issue a warrant for his arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information"-the effect of imposing upon the fiscal the mandatory duty to file an information merely upon such reference being made; and this, even without regard to the fact that in its ordinary sense, the word "refer" conveys no such import nor connotes any compulsion. And it was no doubt on account of these obvious considerations that, as Saltafurther observes, Section 37 of Batas Pambansa Blg. 129 reiterated" the removal from Judges of Metropolitan Trial Courts in the National Capital Region of the authority to conduct preliminary investigations" and "Section 2 of Rule 112 of the 1985 Rules on Criminal Procedure no longer authorizes Regional Trial Judges to conduct preliminary investigations." It may not be amiss to point out, in this connection, that the 1988 Amendments to the 1985 Rules on Criminal Procedure (Sec. 5, Rule 112) explicitly provide inter alia that "(s)hould the provincial or city fiscal disagree with the findings of the investigating judge on the existence of probable cause, the fiscal's ruling shall prevail." 19 Be it noted, however, that once the fiscal files an information with the Court and the Court thereby acquires jurisdiction over the case, the case may not be dismissed at the fiscal's instance except only by consent of the Court, which may grant or withhold it in its discretion. 20 It was therefore grave abuse of discretion amounting to lack of jurisdiction on His Honor's part to seek to foreclose the petitioner fiscal's prerogative to conduct his own preliminary investigation to determine for himself the existence or nonexistence of probable cause, and to require him to show cause for not filing the information within twenty-four (24) hours, on the sole basis of the Judge's conclusions. The fiscal was not bound to a blind, uncritical and unavoidable acceptance of those conclusions. He had the duty to satisfy himself of the existence of probable cause, and could not shirk or be made to evade it by an unreasoning and indiscriminate reliance on the judge's investigation. Since the controversy at bar arose, many years have passed during which Circuit Criminal Courts were abolished, as already stated, 21 the petitioner Fiscal's public service was ended by compulsory retirement, and the respondent's stint as Judge, ended by his promotion to a higher court. It is time, too, that this case is ended.
Effect of filing of case in court Balgos vs. Sandiganbayan

In the case of Crespo vs. Mogul, 3 this Court laid down the ground rules and the parameters pertaining to the direction and control of the prosecution of a criminal action by the fiscal or government prosecutor as provided for in the rules 4 in relation to the jurisdiction of the competent courts over such cases. We ruled that while the public prosecutor has the sole direction and control in the prosecution of offenses, once the complaint or information is filed in court, the court thereby acquires jurisdiction over the case and all subsequent actions that may be taken by the public prosecutor in relation to the disposition of the case must be subject to the approval of the said court. In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission or consent of the court must be secured. And if after such reinvestigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action must be addressed to the sound discretion of the court. In the past, a government prosecutor could practically impose his judgment or opinion on the court as it was recognized that the prosecution of offenses is his exclusive domain which resulted then and again in a clash or conflict of opinion between the prosecutors and the courts to the detriment of the administration of justice. Such a situation may no longer be possible since Crespo. It is the court that has now the final say on any subsequent disposition or action once the case is brought before it. The only instance when the appellate court should stay the hand of the trial court in such cases is when it is shown that the trial court acted without jurisdiction or in excess of its jurisdiction or otherwise committed a grave abuse of discretion amounting to such lack or excess of jurisdiction b) By the same token, the denial of the motion to suspend the criminal proceedings on the ground of the pendency of a prejudicial question in Civil Case No. 5307 is wen taken. The doctrine of prejudicial question comes into play usually in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be pre-emptively resolved before the criminal action may proceed, because whatsoever the issue raised in the civil action is resolved would be determinative juris et jure of the guilt or innocence of the accused in the criminal case. 7 In this case, as correctly held by public respondent, the pending civil case for the annulment of the sale of the car to Leticia Ang (Civil Case No. 5307) is not determinative of the guilt or innocence of the petitioners for the acts allegedly committed by them in seizing the car
Sec. 265 Omnibus Election Code: Comelec People vs. Basilla

There is no dispute that the Comelec is vested with power and authority to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code and to prosecute such offenses in court. Section 265 of this Code reads as follows: See. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Sec. 182, 1973 EC; and Sec. 66, BP 697) (Emphasis supplied) We note that while Section 265 of the Code vests "exclusive power" to conduct preliminary investigation of election offenses and to prosecute the same upon the Comelec, it at the same time authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the Government. Section 2 of Article IX-C of the 1 987 Constitution clearly envisage that the Comelec would not be compelled to carry out all its functions directly and by itself alone: Section 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. xxx xxx xxx (4) Deputize, with the concurrence of the President, law enforcementi agencies and instrumantalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free orderly, honest, peaceful, and credible elections. xxx xxx xxx (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters;investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. xxx xxx xxx (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. xxx xxx xxx (Emphasis supplied) The concurrence of the President with the deputation by Comelec of the prosecuting arms of the Government, was expressed in general terms and in advance in Executive Order No. 134. dated 27 February 1987, entitled "Enabling Act for the Elections for members of Congress on May 11, 1987, and for other purposes." Executive Order No. 134 provided in pertinent portion as follows: xxx xxx xxx See. 11. Prosecution. Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office the Fiscal or with the Department for Justice for proper investigation and prosecution, if warranted. The Commission may avail of the assistance of other prosecuting arms of the government. (Emphasis supplied) On 9 March 1987, the Comelec enacted its Resolution No. 1862. The pertinant operative portions of this resolution are the following: xxx xxx xxx NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution of the Republic of the, Philippines, the Omnibus Election Code and Executive Orders Nos. 50, 94, 134 and 144, has RESOLVED to designate, as it hereby designates the Chief State Prosecutor, all Provincial and City Fiscalss and their respective Assistants as its deputies in connection with the elections for Members of Congress on May 11, 1987, to perform the following duties and functions: 1. Conduct prelimiry investigation of complaints involving election offenses under the Omnibus Election Codewhich may be filed directly with them, or which may be endorsed to them by the Commission or its authorized representatives; and 2. Whenever a prima facie case exists, file the proper information in court and prosecute the same.
Preliminary investigation of cases filed directly with, or endorsed to, Provincial and City Fiscals, and/or their respective Assistants shall be conducted immediately and shall be finished within thirty (30) days from the filing thereof and, for this purpose, they are enjoined to hold office on a twenty-four (24) hour basis during the registration of voters on April 11 and 12, 1987, on Election Day on May 11, 1987, and until midnight on Revision Day on May 2, 1987. Provincial and City Fiscals and their respective Assistants shall submit to the Commission a report on every case directly filed with them and thereafter, monthly progress reports on the status of the cases handled by them, including those endorsed by the Commission or its authorized representatives. This Resolution shall take effect immediately. 2 (Emphasis supplied) The contention of private respondents that the deputation by the Comelec of the prosecuting arms of the Government would be warranted only before the elections and only to ensure tree, honest, orderly, peaceful and credible elections, that is, to perform the peace-keeping functions of policemen, lack substance. There is nothing in Section 2 (4) of Article IX-C of the Constitution which requires such a pinched niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials or employees of other agencies and instrumentalities of the government. The prompt investigation and prosecution and disposition of election offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of election offenses are, in an important sense, more important than the maintenance of physical order in election precinct. 'without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what it actually has. Moreover, the prosecution officers designated by the Comelec become deputies or agents of the Comelec and pro tantosubject to the authority, control and supervision of the Comelec in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the Comelec itself. The only limitation the Constitution itself places upon the Comelec's authority over its deputies relates to the enforcement of such authority through administrative sanctions. Such sanctions-e.g., suspension or removal-may be recommended by the Comelec to the President (Sec. 2 [8], Article IX-C, 1987 Constitution) rather than directly imposed by the Comelec, evidently, to pre-empt and avoid potential difficulties with the executive department of the Government where the prosecution and other officers deputized are ordinarily located.
Procedure of Preliminary Investigation Section 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 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. Right to cross-examine Rodil vs. Garcia
Under the present state of the law, it cannot be said that the right to cross-examine is guaranteed for an accused at the stage of preliminary investigation. There is misapprehension on the part of respondent Judge of the import of the ruling in Ocampo v. Bernabe, 8 as to the summary nature of the hearing required to determine whether bail should be allowed. The opinion of the then Chief Justice Moran speaks for itself: "The course of the inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. Objection has been made long ago to this method of hearing wherein the regular trial is anticipated though to a limited extent at least. But the objection was dismissed as follows: 'The second objection is more serious, and, if the courts possessed entire freedom of action in regard to the matter, would be very persuasive. The regular trial is, to a limited extent at least, anticipated. While the guilt or innocence of the accused is not to be determined, the quantity and character of the proof on this point are, for the special purpose in hand, necessarily considered. Occasionally much time is thus consumed, and the court's attention is correspondingly diverted from other business. But these objections cannot avail against a positive constitutional command; if the Constitution requires the court to determine for itself whether or not the proof is evident or presumption great in a given case, all considerations of expediency or convenience, however potent they might be at the common law, must give way. 9 As a matter of fact, the decision in that case was in favor of petitioner Ocampo, with the Fourth Division of the People's Court being adjudged as having committed a grave abuse of discretion for denying bail. What cannot be too sufficiently stressed is that the procedure to be followed in the hearing on an application for bail, while summary in character, is not to be a mere sham or pretense. It must not be an exercise in futility. The accused is not to be denied his day in court. That leaves the question of the alleged grave abuse of discretion in that he refused to allow counsel for petitioner during the stage of preliminary investigation proper to recall prosecution witnesses so that counsel could cross-examine them on "clarificatory and amplificatory matters." As set forth earlier, the accused is not by law entitled to such a right. The leading case is still Abrera v. Muoz and Flordeliza, 10 a 1960 decision, with Justice J.B.L. Reyes as ponente. While the specific question differs, the principle announced is applicable. In that certiorari proceeding, it was alleged that there was a grave abuse of discretion by respondent Justice of the Peace for permitting the cross-examination by the prosecution of the accused and her witnesses during the preliminary investigation. This Court held: "At the outset, it should be stated that the refusal of the Justice of the Peace to allow the defense to cross-examine the prosecution's witnesses presented prior to petitioner's arrest, cannot be utilized as argument for the contention that the prosecution should not have been allowed to cross-examine the defense witnesses. An accused is not entitled to cross-examine the witnesses presented against him in the preliminary investigation before his arrest, this being a matter that depends on the sound discretion of the Judge or investigating officer concerned (People v. Ramilo, 98 Phil. 545; Dequito v. Arellano, 81 Phil. 128; Bustos v. Lucero, 81 Phil. 640). Petitioner-appellant's attempt to draw a parallel between the refusal of the judge to allow her to cross-examine prosecution's witnesses, with the permission granted to the latter as against the defense witnesses, assumes the existence of a vested right of which petitioner-appellant had been deprived. In being denied confrontation of the prosecution witnesses, she was not deprived of any right but was merely refused the exercise of a privilege. 11 With the ruling on the question for bail, counsel for petitioner, as above intimated, would be able to attain the objective which was denied him when he was not allowed to recall the prosecution witnesses. To follow the language of Abrera, petitioner as the accused "was not deprived of any right but was merely refused the exercise of a privilege." Motion for Reconsideration Petitioner avers that Castro disregarded the basic rule that once the case is filed in court, leave of court must be secured prior to taking any action on a motion for reconsideration filed by the accused with the Office of the City Prosecutor. Thus, it is the intentional disregard of this established jurisprudence on jurisdiction and the doctrinal laws on delineation of authority that made her administratively liable for conduct prejudicial to the best interest of the service.11 Respondent Castro claims that she has not violated any law, rule or regulation that would warrant any administrative sanction. She maintains that she was following the order of her superior to reinvestigate the case. Therefore, there was no reason for her to be suspended
by the Ombudsman.12 She asserts that she is being discriminated and singled out by the Ombudsman who should also have investigated her superiors who ordered the reinvestigation and approved her recommendation, and the Secretary of Justice who gave his imprimatur to the dismissal of the case. Notably, even the trial judge approved its dismissal.13 Upon review, we find that Castros conduct in resolving the motion for reconsideration is not prejudicial to the best interes t of the service. We note that it was Laborte who initially handled the case; found probable cause that spouses Gonzales violated the SSS law; and recommended that an information be filed against them. Capacio, as Chief of the Review and Reconsideration Section, assigned the case to Castro after a motion for reconsideration was filed with the Office of the City Prosecutor. By virtue of her functions, Castro has the discretion to uphold, modify or reverse the findings and conclusion of Laborte. Consequently, it was not unusual that, upon review of the evidence presented, her observations would be diverse from that of Labortes. Besides, a motion for reconsideration of the resolution of the preliminary investigation conducted by the city prosecutor is allowed. Section 3 of the Department of Justice Circular No. 70 reads: SEC. 3. Period of appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of the assailed decision. Only one motion for reconsideration shall be allowed. Likewise, the filing of a motion for reconsideration is consistent with the principle of due process and allowed under Section 56 of the Manual for Prosecutors.14 In the subject case, the information was filed in court on September 28, 2001. However, the spouses Gonzales received a copy of the unfavorable recommendation of Laborte only on October 1, 2001.15 Thus, they filed on October 10, 2001 a motion for reconsideration which was the appropriate and available remedy for them. In Sales v. Sandiganbayan,16 we held that the denial of the opportunity to file a motion for reconsideration is tantamount to a denial of due process, thus: The filing of a motion for reconsideration is an integral part of the preliminary investigation proper. There is no dispute that the Information was filed without first affording petitioner-accused his right to file a motion for reconsideration. The denial thereof is tantamount to a denial of the right itself to a preliminary investigation. This fact alone already renders preliminary investigation conducted in this case incomplete. The inevitable conclusion is that the petitioner was not only effectively denied the opportunity to file a motion for reconsideration of the Ombudsmans final resolution but also deprived of his right to a full preliminary investigation preparatory to the filing of the information against him.17 In the instant case, the information was filed before the spouses Gonzales could file a motion to reconsider the adverse recommendation of Laborte. The filing of the information deprived them of the right to a full-blown preliminary investigation. We find that Castro did not usurp the jurisdiction of the trial court as the comment was only recommendatory in nature. The judge was not deprived of the authority to make a personal evaluation of the evidence before him and to act accordingly. In fact, spouses Gonzales moved for the dismissal of the case not before the Office of the City Prosecutor but before the trial court where the information was filed. This Court in Roberts, Jr. v. Court of Appeals,18 stated: Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judges own assessment of such evidence, it not being sufficient for the valid and proper exercise of j udicial discretion merely to accept the prosecutions word for its supposed insufficiency. We are aware of our ruling in Crespo v. Mogul19 that discourages the Secretary of Justice from entertaining any appeal from the action of the fiscal once the case is filed in court to avoid a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court. However, the comment filed by Castro was only recommendatory. As such, it could either be adopted or disregarded by the trial judge who has full discretion and jurisdiction over the case. Castros participation in t he case was in compliance with the orders from her superiors. If at all, she was only performing her duty as a reviewing officer.
Post investigation; duties of prosecutor Section 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. pg. 19 JAMnotes Rule 112 Criminal Procedure
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. (4a) Manlavi vs Gacott Jr.
Complainant's argument that a quashal of the complainant or information cannot be done without the prior written approval of the provincial prosecutor is misplaced. Complainant invokes Section 4, Rule 112 of the New Rules on Criminal Procedure, which provides: xxx xxx xxx No complaint or information may be filed or dismissed by an investigating fiscal without the prior written approval of the provincial or city fiscal or chief state prosecutor. xxx xxx xxx Said provision applies to the conduct of the preliminary investigation, which is within the control of the public prosecutor. It has no application in a case where the information is already filed before the proper court. In fact, the epigraph of Rule 112 is "Duty of investigating fiscal." In the case at bench, the accused moved for the quashal of the criminal cases after their arraignment. As a general rule, an accused can move for the quashal of the information on any ground before arraignment (Revised Rules of Court, Rule 117, Sec. 1). However, the rule admits of some exceptions such as where there is no offense charged (Revised Rules of Court, Rule 117, Section 8; Cruz, Jr. v. Court of Appeals, 194 SCRA 145 [1991]), for what controls is not the designation of the offense charged in the information but the allegations of the constitutive elements of the offense (People v. Aczon, 225 SCRA 237 a [1993]). Any ambiguity in the information shall be resolved in favor of the accused (People v. Bondoy, 222 SCRA 216 [1993]). Well-settled is the rule that the acts of a judge which pertain to his judicial capacity are not subject to disciplinary power, unless when they are committed with fraud, dishonesty, corruption or bad faith Petitioners claim that their failure to submit the copyrighted master videotape of the television show Rhoda and Me was not raised in issue by private respondents during the preliminary investigation and, therefore, it was error for the Secretary of Justice to reverse the investigating prosecutor's finding of probable cause on this ground. A preliminary investigation falls under the authority of the state prosecutor who is given by law the power to direct and control criminal actions. 2 He is, however, subject to the control of the Secretary of Justice. Thus, Rule 112, 4 of the Revised Rules of Criminal Procedure, provides: Sec. 4. Duty of investigating fiscal. If the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall 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 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 dismissal of the complaint. In either case, he shall forward the records of the case to the provincial or city fiscal or chief state prosecutor within five (5) days from his resolution. The latter shall take appropriate action thereon ten (10) days from receipt thereof, immediately informing the parties of said action. No complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor. Where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation.
If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. In reviewing resolutions of prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for the purpose of determining whether there is probable cause for filing cases in court. He must make his own finding, of probable cause and is not confined to the issues raised by the parties during preliminary investigation. Moreover, his findings are not subject to review unless shown to have been made with grave abuse. Opinion of the Secretary of Justice Petitioners contend, however, that the determination of the question whether the format or mechanics of a show is entitled to copyright protection is for the court, and not the Secretary of Justice, to make. They assail the following portion of the resolution of the respondent Secretary of Justice: [T]he essence of copyright infringement is the copying, in whole or in part, of copyrightable materials as defined and enumerated in Section 2 of PD. No. 49. Apart from the manner in which it is actually expressed, however, the idea of a dating game show is, in the opinion of this Office, a non-copyrightable material. Ideas, concepts, formats, or schemes in their abstract form clearly do not fall within the class of works or materials susceptible of copyright registration as provided in PD. No. 49. 3 (Emphasis added.) It is indeed true that the question whether the format or mechanics of petitioners television show is entitled to copyright protection is a legal question for the court to make. This does not, however, preclude respondent Secretary of Justice from making a preliminary determination of this question in resolving whether there is probable cause for filing the case in court. In doing so in this case, he did not commit any grave error.
Remedy against DOJ Resolution Rule 65 with CA Alcaraz v. Gonzales

We agree with petitioner's contention that respondent resorted to an improper remedy when he filed a petition for review under Rule 43 of the Rules of Court, instead of filing a petition for certiorari under Rule 65. It bears stressing that in the determination of probable cause during the preliminary investigation, the executive branch of government has full discretionary authority. Thus, the decision whether or not to dismiss the criminal complaint against the private respondent is necessarily dependent on the sound discretion of the Investigating Prosecutor and ultimately, that of the Secretary of Justice. Courts are not empowered to substitute their own judgment for that of the executive branch. The resolution of the Investigating Prosecutor is subject to appeal to the Justice Secretary who, under the Revised Administrative Code, exercises the power of control and supervision over said Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the ruling of such prosecutor. Thus, while the CA may review the resolution of the Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of the Rules of Court, solely on the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of jurisdiction. It bears stressing that the Resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000 National Prosecution Service Rules on Appeals), resolutions in preliminary investigations or reinvestigations from the Justice Secretary's resolution, except the aggrieved party, has no more remedy of appeal to file a motion for reconsideration of the said resolution of such motion if it is denied by the said Secretary. The remedy of the aggrieved party is to file a petition for certiorari under Rule 65 of the Rules of Court since there is no more appeal or other remedy available in the ordinary course of law. In the present case, respondent filed a petition for review under Rule 43 of the Rules of Court, assailing the resolutions of the Justice Secretary. Instead of dismissing the petition, however, the CA gave due course to it and thereafter granted the petition, on its finding that the Justice Secretary erred in reversing the resolution of the Investigating Prosecutor which found probable cause against petitioner for attempted homicide. Patently, the ruling of the CA is incorrect.
When DOJ Secretary reverses or modifies prosecutor's resolution Sec. 4 last par.- 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 pg. 21 JAMnotes Rule 112 Criminal Procedure
Resolution of investigating judge and its review Section 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 in cases 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. When warrant of arrest may issue Section 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. (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 may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant or 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 the 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 question 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. (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 then proceed in the exercise of its original jurisdiction. Arrest w/o warrant or inquest a) Without waiver Sec. 7 1st and 3rd par. Section 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 office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. 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) pg. 22 JAMnotes Rule 112 Criminal Procedure
Llave vs. People

On the first issue, petitioners contention that he was deprived of his right to a regular preliminary investigation is barre n of factual and legal basis. The record shows that petitioner was lawfully arrested without a warrant. Section 7, Rule 112 of the Revised Rules of Criminal Procedure provides: 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 provisions 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 for in this Rule. As gleaned from the Certification of the City Prosecutor which was incorporated in the Information, petitioner did not execute any waiver of the provisions of Article 125 of the Revised Penal Code before the Information was filed. He was arraigned with the assistance of counsel on October 10, 2002, and thereafter filed a petition for bail. Petitioners failure to file a motion for a preliminary investiga tion within five days from finding out that an Information had been filed against him effectively operates as a waiver of his right to such preliminary investigation. ***Article 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively)
b) With waiver Sec. 7 2nd par. 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 provisions 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. De Castro vs Fernandez Jr
Issue: WON the accused is entitled to a preliminary investigation under Rule 112 of the Rules on Criminal Procedure Ruling: NO. The petitioner deemed to have waived his right to preliminary investigation. Under Sec. 7 of Rule 112, if an information is filed in court without preliminary investigation, the accused may ask for itwithin 5 days after he learns of its filing; otherwise, it is deemed a waiver of the right to preliminary investigation. The information was filed on June 18 but he only requested for a preliminary investigation on July 1 or more than 5 days from the time the petitioner learned of the filing.
Records supporting the information or complaint Section 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 fiscal, 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 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. pg. 23 JAMnotes Rule 112 Criminal Procedure
Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure Section 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 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 directly 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 question 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)

112JAM

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112JAM

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RULE 112 PRELIMINARY INVESTIGATION

Purpose of Preliminary Investigation Hashim vs. Boncan

Waiver of Right to Prelim Investigations People vs. Buluran

Layus vs. Sandigan Bayan

pg. 1 JAMnotes Rule 112 Criminal Procedure

People vs. Veloso

pg. 2 JAMnotes Rule 112 Criminal Procedure

Nature of Preliminary Investigation Lejano vs. De leon

pg. 3 JAMnotes Rule 112 Criminal Procedure

Filing of amended Information w/o preliminary investigation Teehankee vs. Madayag

Requiring Counter-Affidavit NOT Mandatory Borlongan Jr. vs. Pena

pg. 4 JAMnotes Rule 112 Criminal Procedure

Absence of Preliminary Investigations People vs. Gomez

pg. 5 JAMnotes Rule 112 Criminal Procedure

Doromal vs. Sandiganbayan

pg. 6 JAMnotes Rule 112 Criminal Procedure

Standard in determining Probable Cause Allado vs Diokno

pg. 7 JAMnotes Rule 112 Criminal Procedure

Two kinds of Preliminary Investigations Roberts vs CA

pg. 8 JAMnotes Rule 112 Criminal Procedure

pg. 9 JAMnotes Rule 112 Criminal Procedure

pg. 10 JAMnotes Rule 112 Criminal Procedure

Meaning of Probable Cause Sarigumba vs. Sandiganbayan

Fuentes Jr. vs. Office of the Ombudsman

pg. 11 JAMnotes Rule 112 Criminal Procedure

Vergara vs. Ombudsman

pg. 12 JAMnotes Rule 112 Criminal Procedure

pg. 13 JAMnotes Rule 112 Criminal Procedure

Sistoza vs. Desierto

pg. 14 JAMnotes Rule 112 Criminal Procedure

Effect of filing of case in court Balgos vs. Sandiganbayan

pg. 15 JAMnotes Rule 112 Criminal Procedure

Sec. 265 Omnibus Election Code: Comelec People vs. Basilla

pg. 16 JAMnotes Rule 112 Criminal Procedure

pg. 17 JAMnotes Rule 112 Criminal Procedure

pg. 18 JAMnotes Rule 112 Criminal Procedure

pg. 20 JAMnotes Rule 112 Criminal Procedure

Remedy against DOJ Resolution Rule 65 with CA Alcaraz v. Gonzales

Llave vs. People

pg. 24 JAMnotes Rule 112 Criminal Procedure

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