Preliminary Investigation in Criminal Cases - Philippine E-Legal Forum PDF

6/13/2016
PreliminaryInvestigationinCriminalCases|PhilippineeLegalForum
PRELIMINARY INVESTIGATION IN CRIMINAL

CASES
By: Atty.Fred | September 17, 2007 in Criminal Law, Litigation
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At the outset, lets remove any possibility of misunderstanding that may be caused by the title of this post. The
reference to a preliminary investigation in criminal cases does not imply that theres a preliminary
investigation in civil cases theres none. Preliminary investigation is a part of the rules of criminal procedure.
Simply stated, its available ONLY in criminal cases.
What is Preliminary Investigation?
Preliminary investigation is an inquiry or proceeding to determine whether there is su cient 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.
What is the Nature and Purpose of preliminary investigation?
The determination of probable cause during a preliminary investigation is an executive function, the
correctness of the exercise of which is a matter that the trial court itself does not and may not be compelled to
pass upon.
In a preliminary investigation, the investigating prosecutor makes a determination if theres a probable cause,
which is 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. It has been explained as a reasonable presumption that a matter is, or may be, well
founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean
actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a nding of probable cause does not require an inquiry into whether there is su cient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the
oense charged, as there is a trial for the reception of evidence of the prosecution in support of the charge.
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and
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anxiety of a public trial, and also to protect the state from useless and expensive trials. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of the guarantees of
freedom and fair play which are birthrights of all who live in our country. It is therefore, imperative upon the
scal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is
ascertained that the evidence is insu cient to sustain a prima facie case or that no probable cause exists to
form a su cient belief as to the guilt of the accused. The judge or scal, therefore, should not go on with the
prosecution in the hope that some credible evidence might later turn up during trial for this would be in
agrant violation of a basic right which the courts are created to uphold. (Salonga vs. Cruz Pao)
When is preliminary investigation required?
A preliminary investigation is required to be conducted before the ling of a complaint or information for an
oense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day, without
regard to the ne.
A preliminary investigation is not required in cases of warrantless arrests. When a person is lawfully arrested
without a warrant involving an oense which requires a preliminary investigation, the complaint or information
may be led by a prosecutor without need of such investigation provided an inquest has been conducted in
accordance with existing rules. However, after the ling of the complaint or information in court without a
preliminary investigation, the accused may, within ve (5) days from the time he learns of its ling, ask for a
preliminary investigation.
Who are the o
cers authorized to conduct preliminary investigations?
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other o cers as may be authorized by law.
What are the basic steps in preliminary investigation?

The basic steps (further discussed in the subsequent paragraphs) in preliminary investigation are:
1. Filing of the Complaint-A davit.

2. Issuance of subpoena by the investigating prosecutor to the respondent.
3. Filing of Counter-A davit by the respondent.
4. If allowed by the prosecutor, ling of Reply-A davit (by the complainant) and Rejoinder-A davit (by the
respondent).
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5. Resolution.
What are the requirements in ling the Complaint-A
davit?
The complaint shall state the address of the respondent and shall be accompanied by the a davits 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 o cial le. The a davits
shall be subscribed and sworn to before any prosecutor or government o cial authorized to administer oath,
or, in their absence or unavailability, before a notary public, each of whom must certify that he personally
examined the a ants and that he is satised that they voluntarily executed and understood their a davits.
The complaint is also generally required to pay ling fees.
What actions are taken by the investigating prosecutor after the complaint is raed to him/her?
Within ten (10) days after the ling of the complaint, the investigating o cer shall either dismiss it if he nds 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 a davits and documents.
I havent encountered any case where the investigating prosecutor dismissed the case prior to the issuance of
the subpoena. Moreover, in practice, the complaint and the annexes are not usually attached to the subpoena,
but are provided to the respondent during the initial stage.
How is the Counter-A
davit submitted by the respondent?
Within ten (10) days from receipt of the subpoena with the complaint and supporting a davits and documents,
the respondent shall submit his counter-a davit and that of his witnesses and other supporting documents
relied upon for his defense. The counter-a davits shall be subscribed and sworn to and certied before the
investigating prosecutor (which means that the respondent must generally be present during the submission
of the counter-a davit), with copies furnished to the complainant. The respondent is not be allowed to le a
motion to dismiss in lieu of a counter-a davit.
Can the investigating prosecutor resolve the complaint if the respondent does not appear?
Yes. If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-a davits, the
investigating o ce shall resolve the complaint based on the evidence presented by the complainant. Within ten
(10) days after the investigation, the investigating o cer shall determine whether or not there is su cient
ground to hold the respondent for trial.
This is the reason why, even in cases where a preliminary investigation is required, its entrely possible that a
warrant of arrest may be isued without the respondent/accused being informed about or having participated in
a preliminary investigation. So, dont disregard a subpoena in a preliminary investigation.
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How is the resolution prepared?

If the investigating prosecutor nds 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
o cer, 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 ve (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 oenses 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.
Can the Information be led without the written authority of the proper authorities?
No complaint or information may be led 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, le the information against the respondent,
or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary
investigation.
An Information led in court may be quashed, among other reasons, if it does not contain the approval or
authority of the aforementioned superiors.
What is the procedure if the preliminary investigation is conducted by a judge?
The procedure is basically the same as described above. 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 oenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction, for appropriate action. The resolution shall state the ndings 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 a davits, counter-a davits 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
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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.
Related Posts:
1. Got [Probable] Cause?
2. Theory of Relativity
3. The Anti-Rape Law of 1997
4. Revised Rule on Children in Con ict with the Law
5. Criminal Complaints and Damages from Malicious Prosecution
42 thoughts on Preliminary Investigation in Criminal Cases
denzmary
February 20, 2008 at 12:48 am
Hi! I need help for legal advised. I am now to the point to bring my own brother to the court. On late 2005 our
brother George(not his real name) he pointed his gun to our 2 brothers and 1 sister in the farm. Threatened
them to kill. George become cruel when his dishonesty and anomaly in farm was under control. On early 2006
he steal the carabao in the farm that until now it was never return. On the middle of 2006 he burned the farm
houses in the midnight that he may think he can not be accused due to the fact that no body sees him. During
that incident we received a death threat letter kind anonymous, sounds like from the rebels and theres a
cellphone number to be contact with. When our mother was advised by the police to call the cellphone number
indicated from the death threat letter it turns out it was the voiced of our brother george that threatened my
parents as will as our family members badly. Now, this year 2008 he ambush our other brother that
supervising the workers in the farm that resulted into a physical injury. I am now so exhausted of all his
demonic act against our family. He produce his own documents to own my farmland. He barricaded my farm
area that my workers can not enter. All his criminal activities has been reported to the nearest Police station.
Non stop death threat to us. I am so overwhelm he was able to feed some cronies that his income is not
enough to support his own family since he has a half dozen of children. He steal all the copras in my farm. I
know for sure that he will not prosper of his false documents but please give me an advised. We are on the
process to le a 5 criminal cases to george if he found guilty including illegal position of 38 and 45 guns,
stealing carabao, death threatening to our family members, mauling/physical injury to my brother, burning the
farm houses, what is the penalty and punishment to be given to him? please help me.
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Atty. Fred
Post author
February 22, 2008 at 3:27 am
denzmary, the common penalty in criminal cases is imprisonment, although in certain cases like libel or
bouncing checks, courts are given the discretion to impose the penalty of imprisonment only, ne only, or both.
The penalty depends on the case led in court, the presence of qualifying, mitigating or aggravating
circumstances and a host of other factors.
divine
March 2, 2008 at 7:58 am
Greetings. Only for clarity, Municipal Trial Court judges are no longer authorized to conduct preliminary
investigation per A.M. No. 05-8-26 of the Supreme Court. Thank you. More power.
move
October 18, 2008 at 2:51 am
Hi Attorney. I need your help. When I left the Philippines, I was advised to resign by my employer for funds
misappropriations issue in July 2008. I also signied my intention to settle whatever liability arising from what I
have done. I am now out of the country seeking employment opportunities. I just learned that my previous
employer in the Philippines is ling a criminal case against me for misappropriations. I had talked to our HR
Manager and was told that they are only taking orders from the Corporate lawyers who already took charge of
my case. I was informed that they already went to the o ce of the City Prosecutor for the ling of the case. The
case that they are ling is either theft or estafa. I am already out of the country. Can the Philippine Court
ordered me back to the Philippines to answer the charges? I am already about to be employed where I am now
and may not be able to take leaves to answer/face the charges. Please advise me what to do. I am lost here.
crushed
November 5, 2008 at 7:52 am
if found guilty of bigamy and im working abroad can they extradite me? which countries can our government
extradite if person is guilty of bigamy?
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noel_benolirao
August 30, 2009 at 12:57 pm
siri need to le a request for PIis there a specic format which I can follow?..is this like a letter format
address to the Prosecutor or the RTC Branch?does it have to be notarized?your help highly appreciated..i only
have less than 5 days to le for PI as of this writing/post.
anna_cenidoza
June 24, 2010 at 7:13 am
Dear Sir,
Good day!
I would like to ask, what specic case, criminal or civil case, may le to a Chief Operating O cer (COO) if he
uses the companys funds for his personal interests?
Thank you very much!
zingodabingo
April 16, 2012 at 5:14 pm
I like to ask a question about violence against women children act. few years ago me and my wife separated,
was her choice. I oered 2k a month with the money I can aord. next day she accused me of violence against
women children act, she wants more. so i added another 1k, after im having a hard time. That lasted for a year
now shes demanding another 3k for private school also I got another job in a dierent area, were the rent is
little lower. But of course also the income. I nally put my foot down and told her i will pay what i can aord.
which is the 2k and I didnt have a job for 2 months. So now shes ling a case. So am I considered a criminal,
even after giving her support of what I can aord?
DennisA
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July 13, 2012 at 3:26 am
Good day.
Id like to know if I could still le a case against my brothers murderer(s) now that I am no longer a Filipino?
How do I le such case? Do I need to go to he Philippines speak with our embassy there or can I do it from
where live and let the Philippine embassy do the coordination? I am ne both ways I just want justice to be
served for my brother who was brutally murdered. I still have siblings in Philippines but they are far too scared
because of the known mentality in that province. Likewise, isnt it that state prosecutor should sprearhead the
case and be on our side as we are the agrieved party? Please let me know what is the right procedure.
Likewise, how can I ask the good court to move the trial from one place to another? If ever I stay in the
Philippines and be allowed to le a complaint can the trial be done in some other provinces or in metropolitan
area where I feel more condent.
Your input is highly regarded.
Ta.
kitty
August 3, 2014 at 11:54 pm
Can a scal mitigate a frustrated murder into physical injuries?

can he as well remove some respondents from the list? There are 6 respondents on a frustrated murder case,
there was a warrant of arrest fro them. One of them has been caught and brought to BJMP. The other 5 are
hiding.The scal is oering a help that he may mitigate the case into just slight physical injuries and will make a
probation to remove the names of the other 5 from the list and also a probation to free the one detained and
will just allow to go but requires him to attend hearings later on. Unfortunately I am not in the Ph so I just get
this info after these people talk with the concerned people in position. Thanks. I really need your advice.
juris
September 18, 2014 at 4:58 am
My mom was being arrested for illegal drugs found with her. She was a balot vendor, and it was a setup. How
can I le conplaint, she was transferred in Provincial Jail. She is innocent and we are poor. What are the rst
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steps that we are going to do?
Dean
September 19, 2014 at 5:27 pm
Good day attorney,i need your advice and help.I was being accuse for a case which i never make.what
happened is like this i have a gay friend po he is 17 years old and he keeps on visiting in my town,the incident
happened last May of this year kasi po habang naglalaro po kami with some of the kids ages 11-12 palagi po
silang sumasama sa kaibigan kung tumatago cause we were playing Hide and Seek that time attorney,to make
the story short nung panahon na ako na po yung taya naka pag tago po sila sa malayong area ng pinaglalaroan
namin then nakita ko na po sila kaso lang de sila lumabas pag dating ko doon i saw them that they were having
fun and teasing each other na makikipag sex but then i dont want ed to have sex with them so ang nangyari po
pag katapos ng maraming usapan yung naka sex nila is yung friend ko yung naka sex niya po is yung dalawang
bata habang yung isa is naging look out tas yung dalawa po ay sumama sakin na umalis.yung nangyari po
ngayon is nalaman daw ng mga magulang yung nangyari dahil daw po pinagkakalat nila tas ako po yung
tinotoro ng mga magulang na ako daw yung gumawa na kahit aminado po yung mga bata na hindi ako ang
gumawa ng pakikipag oral sex sa kanila.nag karoon po kami ng hearing sa Police station at yung lamang ang
natanggap ko nah invitation.so they are really really to le a case against me daw po so yung case na nile nila
is RAPE.
Ngayon Po attorney ano po yung mga dapat kung gawin to ght for this one?,kasi po pinagkakalat na po nila
dito samin na ganyan nga daw po yung mga pinaggagawa ko may chance pa po bang maging ok po to
attorney?.I really need for your advice for this one attorney.THANKS IN ADVANCE
kenji
Good day.
Shall an information or complaint be led immediately with the proper court as soon as the Provincial
Prosecutor approves the nding of probable cause by the Investigating Prosecutor, considering that the
respondent still has the remedy to seek review of such nding with the DOJ?
An a rmative answer to this question opens door to abuses of some sadistic prosecutors (persecutors) who
would le an information immediately with the proper court so that a warrant of arrest could be issued and the
respondent(accused) could be committed to jail at least in the meantime pending review by DOJ.
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Now that our penal laws are being codied, I hope too that this absurd quasi-judicial function of Persecutors be
removed at once!
Thanks for illuminating us on this matter.
Kenji
happy
What if a person is lawfully arrested without a warrant, and an information is already led in court. Later on,
the accused requests for a preliminary investigation. Can the court where the information is led conduct such
preliminary investigation? Or is it mandated to remand the case to the prosecutor?
dada
Good day!I want to ask a question.. what happen to the case if the complainant and the accused both failed to
attend the hearing? And the complainant give a wrong address thats why the accused failed to attend the
hearing.. he didnt even know that he has a case le on him thanks in advance for you answer
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PRELIMINARY INVESTIGATION IN CRIMINAL

cers authorized to conduct preliminary investigations?

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

What are the basic steps in preliminary investigation?

1. Filing of the Complaint-A davit.

What are the requirements in ling the Complaint-A

davit submitted by the respondent?

How is the resolution prepared?

42 thoughts on Preliminary Investigation in Criminal Cases

February 22, 2008 at 3:27 am

July 13, 2012 at 3:26 am

Can a scal mitigate a frustrated murder into physical injuries?

steps that we are going to do?

LawCenter.ph | phBar.org | Bar Exams Forum | AttyAtWork | Pinoy-Business | VisitPinas

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