When Preliminary Investigation is Required

A. Offenses requiring preliminary investigation

A preliminary investigation is required to be conducted before the filing of a
complaint or information for an offense where the law prescribes a penalty of at
least 4 years, 2 months, and 1 day without regard to the fine. (Section 1, Rule 112,
Rules of Court)
B. Who are authorized to conduct Preliminary Investigation
Section 2 of Rule 112 provides a list of those who may conduct preliminary
investigation:
1.
2.
3.
4.

Provincial or City Prosecutors and their assistants;

Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
National and Regional State Prosecutors; and
Other officers as may be authorized by law

There are, however, other officers or persons authorized by special laws to conduct
preliminary investigation:
1. The duly authorized legal officers of the Commission on Elections can conduct
preliminary investigation of all election offenses punishable under the
Omnibus Election Code. (Sec. 265, B.P. 881)
2. The Office of the Ombudsman has the authority to investigate and prosecute
on its own or on complaint by any person, any act or omission of any public
officer of employee, office or agency, when such act or omission appears to
be illegal, unjust, improper or inefficient. (Section 15[1], R.A. 6770)
3. The Presidential Commission on Good Government with the assistance of the
OSG and other government agencies is empowered to investigate, file and
prosecute cases investigated by it (Executive Order No. 14)

When Preliminary Investigation is not required

A. Offenses not requiring preliminary investigation
A preliminary investigation is required to be conducted before the filing of a
complaint or information for an offense where the law prescribes a penalty of at
least 4 years, 2 months, and 1 day without regard to the fine. (Section 1, Rule 112,
Rules of Court)
Conversely, a preliminary investigation is NOT required if the law prescribes a
penalty less than 4 years, 2 months and 1 day.

B. Procedure if the case does not require preliminary investigation or not

covered by Rule on Summary Procedure

There are 2 options provided by Section 9 of Rule 112 of the Rules of Court:
1. File the complaint directly with the prosecutor or
a. The procedure prescribed in Section 3(a) of Rule 112 is followed.
i. Complaint shall state and be accompanied with:
1. The address of the defendant
2. Affidavits of the complaint subscribed and sworn to before
any prosecutor or government official authorized to
administer oath, or in their absence and unavailability, 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.
3. Affidavits of the complainants witnesses subscribed and
sworn to before any prosecutor or government official
authorized to administer oath, or in their absence and
unavailability, 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.
4. Other supporting documents
ii. The documents shall be in such number of copies as there are
respondents in addition to the 2 copies for the official file.
b. After 10 days, the investigating officer shall act on the complaint based
on the documents submitted by the complainant.
Commentary
The difference is that the procedure will halt at Section 3 [a] and does not venture
further into issuing a subpoena requiring the respondent to submit his counteraffidavit. The investigating prosecutor relies only on the complaint and the
documents submitted by the complaint to decide.

2. File the complaint or information with the Municipal Trial Court

a. The procedure prescribed in Section 3(a) of Rule 112 is followed.
i. Complaint shall state and be accompanied with:
1. The address of the defendant
2. Affidavits of the complaint subscribed and sworn to before
any prosecutor or government official authorized to
administer oath, or in their absence and unavailability, 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.
3. Affidavits of the complainants witnesses subscribed and
sworn to before any prosecutor or government official
authorized to administer oath, or in their absence and
unavailability, 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.
4. Other supporting documents
ii. The documents shall be in such number of copies as there are
respondents in addition to the 2 copies for the official file.
b. Within 10 days after filing of the complaint or information
> The judge may dismiss it
If he finds no probable cause after personally evaluating the evidence or after
personally examining n writing and under oath the complainant and his witnesses in
the form of searching questions and answers
Require submission of additional evidence to determine further the
existence of probable cause.
o But if he still finds lack of probable cause, he will dismiss it
within 10 days.
Issue a warrant of arrest or commitment order and hold defendant
for trial or issue a summon.
This is if he finds probable cause.

C. Overview of the Procedure if the case requires preliminary investigation

or covered by Summary Rules in Procedure
2. File the complaint (Section 3 [a]).
Complaint shall state and be accompanied with:
i. The address of the defendant
ii. Affidavits of the complaint subscribed and sworn to before any
prosecutor or government official authorized to administer oath,
or in their absence and unavailability, 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.
iii. Affidavits of the complainants witnesses subscribed and sworn
to before any prosecutor or government official authorized to
administer oath, or in their absence and unavailability, 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.
iv. Other supporting documents
b. The documents shall be in such number of copies as there are
respondents in addition to the 2 copies for the official file.
This is the step that starts the preliminary investigation process. The complaint
for preliminary investigation is different from the complaint filed for purposes of

instituting a criminal prosecution which is governed by Rule 110. Also, it is notable

that the affidavits need not be sworn or subscribed to the investigating prosecutor
before them, the only requirement is that it be done before ANY prosecutor.

2. 10 days after the filing of the complaint, it is either dismissed or a

subpoena is issued
The complaint is dismissed if he finds no ground to continue. Otherwise, he issues a
subpoena to the respondent attaching to it a copy of the complaint, affidavits and
supporting documents. The respondent may examine the documents and to copy
them at his expense. If the evidence is voluminous, then the complainant may be
required to specify those he intends to present against the respondent and these
shall be made available so that respondent can copy it but at his expense.
3. 10 days after the receipt of the subpoena, the respond submits his
counter-affidavit.
The respondent shall submit his counter-affidavit and that of his witnesses and
other supporting documents for his defense. These documents shall be subscribed
and sworn to similar to similar with Section 3[a].
Comment: While the rule only speaks of the complainants affidavit and of the
respondents counter-affidavit, the filing of a reply to the counter-affidavit, which is
called reply-affidavit and a reply to that, which is called rejoinder-affidavit is
allowed. This is affirmed by Atty ____
Atty. ___ commented that there is a prevalent error wherein lawyers tend to submit
affidavits or complaints subscribed and sworn to before a notary public. He reminds
us that under Section 3(a), it must be before a prosecutor or government official
authorized to administer oath and only upon their absence and unavailability will a
resort to a notary public be proper.

If the respondent cannot be subpoenaed or if he was but he fails to submit his

counter-affiavit within the 10-day period, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.
4. Clarificatory hearing if necessary
The investigating officer may set a clarificatory hearing wherein the parties can be
present but they have no right to examine or cross-examine. Instead, they can
submit to the officer a list of questions which may be asked. Emphasis is placed on
the word may, hence, this clarificatory hearing is not indispensable and it is within
the discretion of the investigating officer if he wishes to set a clarificatory hearing.
This hearing shall be held within 10 days from the expiration of the period to submit
a reply and this hearing will terminate within 5 days.

5. 10 days after the termination of the investigation the officer shall

decide.
The investigating officer shall determine whether or not there exists probable cause
to hold respondent for trial. If he finds probable cause, he will prepare both the
resolution and information. If he does not find probable cause, he shall recommend
the dismissal of the complaint.
6. Within 5 days from the resolution, the records of the case shall be
forwarded.
The investigating officer shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor or the proper officer. This is to secure the
approval regarding their resolution as it is prohibited for any complaint to be filed or
dismissed without prior written authority of the said officials.
7. Within 10 days from the receipt, the above-mentioned officers shall
approve or dismiss it
The provincial or city prosecutor or chief state prosecutor or the proper officer, as
the case may be, shall then act upon such resolution. If the investigating prosecutor
recommends the dismissal but this officer does not agree and believes that
probable cause exists, then, he may file the information against the respondent by
himself or direct another assisting prosecutor to do so without need for another
preliminary investigation.