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In the municipal level, the relationship of the Philippine National Police and the Office of the Prosecutor is of paramount

importance. The PNP usually represented by the unit Investigator, has nobody to turn except to the Public Prosecutor when
confronted with issues requiring legal expertise particularly with the filing of criminal cases. We must admit though, that in
certain instances, a Prosecutor may not necessarily be convinced of the cases filed by a Police Investigator. It may result in the
dismissal of cases even on the preliminary investigation or inquest stage.

Outcome of cases filed by the police is at the mercy of the Prosecutor because no office in the PNP handle appeals in connection
with Resolutions of the Prosecutor. Dismissal of the case at the prosecutor’s level means the PNP has to let go of the suspect.
This would further drain the resources of a police unit because after a warrant of arrest will be issued, police personnel will exert
effort and spent financial resources again to capture the same person.

It is no arrogance to claim, especially to those who have the experience that the reason for the dismissal of the case is not really
that the PNP has no case at all citing experience as a Police Investigator. The problem lies on relationship with the handling
Prosecutor.

At the very start of the incident the Investigator knows the real-score on how to win the case. But sometime events turn
otherwise when the prosecutor imposes his authority, suggests things, requires documents, gives demoralizing comments, etc.
as to the merit of the case citing variables such as politics, blood relationships and previous experience with the PNP’s law
enforcement activities, not to mention volume of his deadlines, and many factors that drives a prosecutor to have an attitude of
resistance upon seeing a PNP member in his office.

Eto ang Abogado Nyo!

While looking for references in the library, I came across a criminal investigation Manual revised 2010 published by Directorate
for Investigation and Detective Management (DIDM). The book laid down the procedures that Investigators need in performing
their duty. Although the last part of the Manual has a form for notice of appeal, the appeal is premised on the outcome of the
trial.

Absent in the manual is the discussion on how to appeal an adverse Resolution of the Public Prosecutor be it regular preliminary
investigation, reinvestigation or those arising from an inquest proceeding found in DOJ Department Circular No. 70 (2000 NPS
Rule on Appeal) which I believe should have been incorporated in the Manual.

There is no much problem in appealing Resolutions during Preliminary Investigations or Reinvestigation. The appeal procedure
provides that:

1. The verified Petition for Review shall be brought to the Secretary of Justice within 15 days after receipt of the
Resolution or within the same period after receipt of the denial of the Motion for Reconsideration if one has been filed.
2. The investigating/reviewing/approving prosecutor shall not be impleaded as party respondent in the petition. The PNP
unit taking the appeal shall be referred to in the petition as "Complainant-Appellant".
3. The petition shall contain or state: (a) the names and addresses of the parties; (b) the Investigation Slip number (I.S.
No.) and criminal case number, if any, and title of the case, including the offense charged in the complaint; (c) the
venue of the preliminary investigation; (d) the specific material dates showing that it was filed on time; (e) a clear and
concise statement of the facts, the assignment of errors, and the reasons or arguments relied upon for the allowance
of the appeal; and (f) proof of service of a copy of the petition to the adverse party and the Prosecution Office
concerned.
4. The petition shall be accompanied by legible duplicate original or certified true copy of the resolution appealed from
together with legible true copies of the complaint, affidavits/sworn statements and other evidence submitted by the
parties during the preliminary investigation/reinvestigation.
5. Failure to comply with the above requirements shall constitute sufficient ground for the dismissal of the petition.

At the outset, let’s 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 there’s a
preliminary investigation in civil cases – there’s none. Preliminary investigation is a part of the rules of
criminal procedure. Simply stated, it’s available ONLY in criminal cases.

1. What is Preliminary Investigation?

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.

2. 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 there’s 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 finding of
probable cause does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of constitutes the offense
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 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 fiscal 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 insufficient to sustain a prima
facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.
The judge or fiscal, 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 flagrant violation of a basic right which the
courts are created to uphold. (Salonga vs. Cruz Paño)

3. When is preliminary investigation required?

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.

A preliminary investigation is not required in cases of “warrantless arrests.” 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. However, 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.
4. Who are the officers 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 officers as may be authorized by law.

5. 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-Affidavit.


2. Issuance of subpoena by the investigating prosecutor to the respondent.
3. Filing of Counter-Affidavit by the respondent.
4. If allowed by the prosecutor, filing of Reply-Affidavit (by the complainant) and Rejoinder-Affidavit
(by the respondent).
5. Resolution.

6. What are the requirements in filing the Complaint-Affidavit?

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
whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

The complaint is also generally required to pay filing fees.

7. What actions are taken by the investigating prosecutor after the complaint is
raffled to him/her?

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.

I haven’t 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.

8. How is the Counter-Affidavit submitted by the respondent?

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 before the investigating prosecutor (which means that the respondent must
generally be present during the submission of the counter-affidavit), with copies furnished to the
complainant. The respondent is not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

9. 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-affidavits,
the investigating office shall resolve the complaint based on the evidence presented by the
complainant. 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.

This is the reason why, even in cases where a preliminary investigation is required, it’s 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, don’t disregard a subpoena in a preliminary
investigation.

10. How is the resolution prepared?

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.

11. Can the Information be filed without the written authority of the proper
authorities?

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 another assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.

An Information filed in court may be quashed, among other reasons, if it does not contain the approval
or authority of the aforementioned superiors.

12. 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 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.

RULE 112 - PRELIMINARY INVESTIGATION


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
compliant 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.

WHAT IS A PRELIMINARY INVESTIGATION?


> It 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

WHAT IS THE NATURE AND EFFECTS OF A PRELIMINARY


INVESTIGATION?
1. It is merely inquisitorial
2. Only means of discovering whether the offense has been committed and
the persons responsible for it
3. To enable the fiscal to prepare his complaint and information
4. Not a trial on the merits

5. Determine whether there is probable cause to believe that an offense has


been committed and the accused is probably guilty of it
6. Doesn't place the accused in jeopardy
7. Doesn't affect the jurisdiction of the court—only the regularity of the proceedings
8. Accused cannot assert lack of preliminary investigation. Court cannot dismiss
the case based on this ground—it should conduct the investigation or order the fiscal or
lower court to do it
9. Preliminary investigation may be waived
10. Accused should invoke right to PI before plea, otherwise it is deemed waived
11. Accused doesn't have full gamut of rights yet. He doesn't have right to
counsel unless a confession is being obtained from him.
12. There is also no right to confront witnesses against him.

WHEN IS IT REQUIRED?
> Before a complaint or information is filed, preliminary
investigation is required for all offenses punishable by imprisonment of at least
4 years, 2 months and 1 day, regardless of the fine, except if the accused was arrested
by virtue of a lawful arrest without warrant
> In case of lawful arrest without warrant: the complaint or information may be filed
without a preliminary investigation unless
the accused asks for a preliminary investigation and waives his rights under Article
125 of the RPC
> Whether or not there is a need for PI depends upon the imposable penalty for the
crime charged in the complaint filed with the city
or provincial prosecutor’s office and not upon the imposable
penalty for the crime fund to have been committed by the respondent after a
preliminary investigation