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Review on the 2000 Revised Rules on Criminal

Procedure 2002 Edition

Rule 112Preliminary

Investigation

Rule 112PRELIMINARY INVESTIGATION

SECTION 1. Preliminary investigation defined; when required. Preliminary investigation isan 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 guiltythereof, and should be held for trial.

Except as provided in section 7 of this Rule, a preliminary investigation is required tobe conducted before the filing of a compliant or information for an offense where thepenalty prescribed by law is at least four (4) years, two (2) months and one (1) day withoutregard to the fine. (1a)

Alright. We will now go to Preliminary Investigation. This is one of the features of the inquisitorial system ofcriminal procedure. The government is the boss. The purpose is for determining whether there is probable causenot guilt or innocence of the accused, because what is probable cause to you may not be probable cause saakin. That is why you can see the fiscal as a very powerful person in the government. He could say that there isprobable case or there is none. Depende kung anong gusto niya.

So, the government through the investigating officer will decide whether there is a case or no case. He wilfirst conduct an investigation and if he believes that there is a probable cause, then he will prepare a resolutionrecommending to this superior that the respondent be indicted in court.

The purpose of preliminary investigation is to secure the innocent against hasty, malicious and oppressiveprosecution, and to protect him from an open and public accusation of crime, from the trouble, expense andanxiety of a public trial, and also to protect the state from useless and expensive trials. (Marcos vs. Cruz, 68 Phil96; Hashim vs. Boncan, 71 Phil. 216)

Q: Is Preliminary Investigation required in all criminal cases?A: Under the new rules, it is required when the crime for which the respondent is charged carries a penalty of

at least four (4) years, two (2) months, and one (1) day.

Q: What happen if a case is filed in court without preliminary investigation? Can the accused file a motion toquash the information on the ground of absence of a preliminary investigation?

A: Of course there is no question that there is a denial of a right. However, if there is an irregularity, that is noa ground for dismissal. An information cannot be dismissed because there was no preliminary investigation. Theprocedure is for the court to suspend the proceedings and refer the matter back to the proper officer forpreliminary investigation (People vs. Oliveria, 67 Phil. 427; People vs. Manlapas, L-17993, August 24, 1962)

Q: Who has the discretion whether to prosecute or not to prosecute?A: The public prosecutor. That is why he is a powerful officer. He exercises quasi-judicial function because he

is the one to determine whether to file a case against you or not. He has the authority to file or the authority todismiss.

Q: Can the discretion of a public prosecutor be controlled? Can you file a petition for mandamus to compel apublic prosecutor to file a case?

A:General Rule: The public prosecutor cannot be compelled by mandamus to prosecute a case because it isdiscretionary eh! Maybe you can prove grave abuse of discretion. Maybe the probable cause is very, very clear orobvious, then ayaw pa nyang i-file, ayan na!

Q: What are the remedies of the offended party if a fiscal refuses to file a case even when there is a sufficienevidence n which action may be taken?

A: There are three (3) possible remedies:1. He may take up the matter with the Secretary of the Justice who may then take suchmeasures as may be necessary in the interest of justice; or to his superior officer, theRegional State Prosecutor;

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2. He may also file with the proper authorities or court criminal or administrative chargesagainst the fiscal. That is what you callprevericacion in the Revised Penal Code;3. He may file a civil action for damages under Article 27, New Civil Code.

There are other cases where the Supreme Court (SC) commented on this aspect about the quasi-judicial

power of the public prosecutor. In the case of GUIAO VS. FIGUEROA (94 Phil. 1018), the SC said that theprosecution, as an exception, may be compelled by mandamus if he abuses his discretion and refuses to includea person as a co-accused against whom there appears to be at least aprima facie evidence. That is grave abuseof discretion. However, this extraordinary writ is available only if the petition shows that he has first exhausted allremedies in the ordinary course of law such as a motion filed with the trial court for the indictment of the person opersons excluded by the prosecutor.

SANCHEZ vs. DEMETRIOUNovember 9, 1993

HELD: The decision of the prosecutor may be reversed or modified by the Secretary of Justiceor in special cases by the President of the Philippines. But even this Court cannot order theprosecution of a person against whom the prosecutor does not find sufficient evidence to support at

least a prima facie case. The courts try and absolve or convict the accused but as a rule have no partin the initial decision to prosecute him.

The possible exception is where there is an unmistakable showing of a grave abuse of discretionthat will justify judicial intrusion into the precincts of the executive. But in such a case the properremedy to call for such exception is a petition for mandamus, not certiorari or prohibition.

Lets go back in the case ofTEEHANKEE JR. vs. MADAYAG

March 6, 1992

FACTS: Here, Claudio Teehankee, Jr. was originally charged for the crime of frustrated murderfor shooting Hultman na na-comatose for how many months. In the course of the trial, Hultman died.The prosecution sought to change the information from frustrated murder to consummated murder.

Teehankee Jr. questioned the new charge for lack of preliminary investigation thereon .There are three (3) questions to be answered here:

ISSUE #1: Was there an amendmentof the information orsubstitution when the information waschanged from frustrated murder to consummated murder?

HELD: There is an amendment. There is an identity of offenses charged in both the original andthe amended information [murder pa rin!]. What is involved here is not a variance of the nature ofdifferent offenses charge, but only a change in the stage of execution of the same offense fromfrustrated to consummated murder. This being the case, we hold that an amendment of the originalinformation will suffice and, consequent thereto, the filing of the amended information for murder isproper.

ISSUE #2: What kind of amendment? Formal or substantial?HELD: Formal. An objective appraisal of the amended information for murder filed against herein

petitioner will readily show that the nature of the offense originally charged was not actually changed.Instead, an additional allegation, that is, the supervening fact of the death of the victim was merelysupplied to aid the trial court in determining the proper penalty for the crime [So it is still murder.].That the accused committed a felonious act with intent to kill the victim continues to be theprosecution's theory. There is no question that whatever defense herein petitioner may adduce underthe original information for frustrated murder equally applies to the amended information for murder.

So halimbawa sabihin ng prosecutor: You shot Hultman who almost died.Teehankee Jr.: Walaman ako dun ba! I was at home asleep!Alibi ang defense niya ba. Now, namatay si Hultman. Anoman ang depensa mo? Mau man gihapon: Wala man ako dun!

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So you are not prejudiced because the same defense available to you is still available to younow.

ISSUE #3: Is there a need of a preliminary investigation on the new charge?HELD: No need because you have not changed the crime. If you change the crime or when there

is substitution, kailangan ng preliminary investigation. Since it is only a formal amendment,preliminary investigation is unnecessary. The amended information could not conceivably have comeas a surprise to petitioner for the simple and obvious reason that it charges essentially the sameoffense as that charged under the original information. Furthermore, as we have heretofore held, ifthe crime originally charged is related to the amended charge such that an inquiry into one wouldelicit substantially the same facts that an inquiry into the other would reveal, a new preliminaryinvestigation is not necessary.

SEC. 2. Officers authorized to conduct preliminary investigations. The following mayconduct 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.Their authority to conduct preliminary investigations shall include all crimes

cognizable by the proper court in their respective territorial jurisdictions. (2a)

Q: Going back to Rule 110, Section 1, how is a criminal action instituted?A: Read Section 1, Rule 110:

SECTION 1. Institution of criminal actions. Criminal actions shall be instituted asfollows:

(a) For offenses where a preliminary investigation is required pursuant to section 1 ofRule 112, by filing the complaint with the proper officerfor the purpose of conducting therequisite preliminary investigation.

Q: Who are thoseproper officers?A: They are the officers authorized to conduct preliminary investigation and they are mentioned in Section 2:

1. Provincial, city prosecutors and their assistants;2. Judges of the MTC, MCTC;3. Other officers as may be authorized by law to conduct preliminary investigation.

An example of Other officers as may be authorized by law to conduct preliminary investigation is theOmbudsman. In the case of UY VS. SANDIGANBAYAN (312 SCRA 77 [August 9, 1999]), the Ombudsman andhis deputies are only authorized to conduct preliminary investigation of public officers in cases which are fallingwithin the original jurisdiction of the Sandiganbayan (SB).So even if the crime is a violation of the Anti-Graft lawor a crime committed by a public officer in relation to his office, if he is below Grade 27, the proper court is not theSB, but the MTC or RTC. Before kasi, the original SC interpretation of the Ombudsman law as laid down in the

first case of DELOSO VS. DOMINGO (November 21, 1990), is that, all crimes committed by public officers shouldbe investigated by the Ombudsman.

HOWEVER, Ombudsman Desierto filed a Motion for Further Clarification in the SC in relation to the case ofUYwhere I think the Ombudsman is trying to convince the SC to change its mind because it is practically makingthat office a useless office. Now, SC resolved to consider the same. Therefore the ruling in UYis reversed in a SCresolution (dated March 20, 2001 [G.R. 105965-70]) where the SC went back to its original ruling that theOmbudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving publicofficers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the

jurisdiction of the regular courts as well. So take note of that.

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SEC. 3. Procedure. The preliminary investigation shall be conducted in the followingmanner:

(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 supportingdocuments to establish probable cause. They shall be in such number of copies as thereare respondents, plus two (2) copies for the official file. The affidavits shall be subscribedand 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 certifythat he personally examined the affiants and that he is satisfied that they voluntarilyexecuted and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shalleither dismiss it if he finds no ground to continue with the investigation, or issue asubpoena to the respondent attaching to it a copy of the complaint and its supportingaffidavits and documents.

The respondent shall have the right to examine the evidence submitted by thecomplainant 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 heintends to present against the respondent, and these shall be made available forexamination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available forexamination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint andsupporting affidavits and documents, the respondent shall submit his counter-affidavitand 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 inparagraph (a) of this section, with copies thereof furnished by him to the complainant. Therespondent 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 submitcounter-affidavits within the ten (10) day period, the investigating office shall resolve thecomplaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to beclarified from a party or a witness. The parties can be present at the hearing but withoutthe right to examine or cross-examine. They may, however, submit to the investigatingofficer 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. Itshall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determinewhether or not there is sufficient ground to hold the respondent for trial. (3a)

Q: What is the procedure for Preliminary Investigation?A: You read Section 3 step by step. Actually its a battle of affidavits eh. It is the same as the old rules

Anyway Ill just mention the changes no:1. In2nd paragraph of [b] The respondent shall have the right to examine the evidence submitted by thecomplainant which he may not have been furnished and to copy them at his expense.2. paragraph [c]. What is new here is the last sentence The respondent shall not be allowed to file amotion to dismiss in lieu of a counter-affidavit. So you can file your counter-affidavit. Do not file amotion to dismiss;3. [d] If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits

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within the ten (10) day period, the investigating office shall resolve the complaint based on theevidence presented by the complainant.4. paragraph [e]. What is new is the 2nd paragraph, the hearing shall be held within 10 days Actuallyhere, tapos na ang affi-affidavits. But if you want to clarify something, you can call the witnesses for

clarificatory questioning, pero he has a deadline to do it 10 days.

In the case ofTATAD vs. SANDIGANBAYAN159 SCRA 70, March 21, 1988

FACTS: The preliminary investigation lasted for 3 years. So Tatad questioned the information.

ISSUE #1: Is the 10-day period to issue a resolution mandatory or directory?HELD: The 10-day period fixed by law is merely directory, yet, on the other hand, it can not be

disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that thelaw has included a provision that is deliberately intended to become meaningless and to be treated asa dead letter. So all of the information filed must be dismissed for violation of the right for speedy

trial.

ISSUE #2: The government contended that a total lack of preliminary investigation is not a groundfor dismissing an information, how come the delay in terminating a preliminary investigation becomesnow a ground for dismissal?

HELD: It has been suggested that the long delay in terminating the preliminary investigationshould not be deemed fatal, for even the complete absence of a preliminary investigation does notwarrant dismissal of the information. True but the absence of a preliminary investigation can becorrected by giving the accused such investigation. But an undue delay in the conduct of apreliminary investigation can not be corrected, for until now, man has not yet invented a device forsetting back time.

SANTIAGO vs. GARCHITORENADecember 2, 1993

FACTS: Anti-graft charges were filed against Miriam Defensor-Santiago when she was still theImmigration Commissioner. Santiago raised this issue (on delay) because the offense was allegedlycommitted on or about October 17, 1988 and the information was filed only on May 9, 1991 or almost3 years later. The amended information was filed only on December 8, 1992 or 4 years later. Sofollowing the Tatadruling they shall be dismissed.

HELD: [Santiago] cannot complain that her constitutional rights to due process were violated byreason of the delay in the termination of the preliminary investigation. Tatad v. Sandiganbayan, 159SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an unexplainedinaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issuesinvolved therein. In the case at bench, there was a continuum of the investigatory process but it gotsnarled because of the complexity of the issues involved.

We note that [Santiago] had previously filed two petitions before us involving 2 criminal cases.Petitioner has not explained why she failed to raise the issue of the delay in the preliminaryinvestigation and the filing of the information against her in those petitions. A piece-meal presentationof issues, like the splitting of causes of action, is self-defeating. So it is like splitting your causes ofaction working against you. Yaan!

SOCRATES vs. SANDIGANBAYAN253 SCRA 773, February 20, 1996

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NOTE: I think Socrates was a governor of Palawan. He was also facing cases in theSandiganbayan where he invoked the Tatadruling.

HELD: In the application of the constitutional guaranty of the right to speedy disposition of cases,particular regard must also be taken of the facts and circumstances peculiar to each case. It ispalpably clear that the application of the Tataddoctrine should not be made to rely solely on the

length of time that has passed but equal concern should likewise be accorded to the factual ambianceand considerations. It can easily be deduced from a complete reading of the adjudicatory discourse inTatadthat the three-year delay was specifically considered vis-a-vis all the facts and circumstanceswhich obtained therein.

So you just dont consider the time element. You must also consider the facts. Panahon ni Marcos yung kayTatadeh.

SERVANTES vs. SANDIGANBAYAN307 SCRA 149, May 18, 1999

NOTE: The Tatadruling was applied in this case.FACTS: Here, Elpidio Servantes was charged for violation of Section 3(e) of the Anti-Graft law. It

took the special prosecutor six (6) years from the filing of the initiatory complaint before he decided tofile an information for the offense in the Sandiganbayan. Servantes filed a motion to quash forviolation of the right to speedy disposition of the case. Special prosecutor tried to justify the delay inthe resolution of the complaint by stating that no political motivation appears in the prosecution of thecase in apparent reference in the case of Tatad because in the case of Tatad there was politicalmotivation dun eh kaya na-delay.

Special Prosecutor: Servantes here was insensitive to the implications and contingencies thereofby not taking any step whatsoever to accelerate the disposition of the matter. Meaning, 6 yearsanong ginawa mo? Hindi ka man nagreklamo! You did not file a motion to hurry up. So you areestopped.

HELD: We find Servantes contention meritorious. He was deprived of his right to speedydisposition of the case, a right guaranteed by the Constitution. We cannot accept special prosecutorsratiocination. It is the duty of the prosecutor to speedily resolve the complaint as mandated by theConstitution regardless of whether Servantes did not object to the delay although the delay was withhis acquiescence provided it was not due to causes directly attributable to him. So the mere fact thathe was not complaining is not a factor. What is the factor is when the delay was caused by him.Yaan!

I know a case decided here during the time of former deputy Ombudsman Delpacio(?) when he was still herein Davao. For more than 4 years the preliminary investigation has not been terminated. The respondent filed amandamus direct to the SC to compel the dismissal of his case citing Tatadcase. With this mandamus, the SCrequired the Ombudsman to comment. So what the Ombudsman did, pinaspasan niya! So he came out with aresolution immediately a resolution to file. Then he answered the SC: I already terminated the preliminaryinvestigation in fact there is now a resolution to file. Cured na! There is no more delay. Sabi ng SC: Hindi na

puwede yan! i-dismiss mo na!

Lets go back to paragraph [b]:

(b) Within ten (10) days after the filing of the complaint, the investigating officer shalleither dismiss it if he finds no ground to continue with the investigation, or issue asubpoena to the respondent attaching to it a copy of the complaint and its supportingaffidavits and documents.

The respondent shall have the right to examine the evidence submitted by thecomplainant which he may not have been furnished and to copy them at his expense. If

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the evidence is voluminous, the complainant may be required to specify those which heintends to present against the respondent, and these shall be made available forexamination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available forexamination, copying, or photographing at the expense of the requesting party.

There is no mention that after the counter-affidavit, the complainant can also file a reply-affidavit. There isnothing which says that it cannot be done, there is nothing which says that it can be done. Well, my position is,since it is not prohibited, try it. Anyway wala mang bawal ba.

Q: Going back to paragraph (b) when the respondent is subpoenaed, he is supposed to file his counter-affidavit. Paano kung di siya ma-subpoena or even if subpoenaed he does not submit his counter-affidavit?

A: The investigating officer shall resolve the complaint based on the evidence presented by the complainant.

MERCADO vs. COURT OF APPEALSJuly 5, 1995

HELD: The New Rules on Criminal Procedure does not require as a condition sine qua non to

the validity of the proceedings [in the preliminary investigation] the presence of the accused for aslong as efforts to reach him were made, and an opportunity to controvert the evidence of thecomplainant is accorded him. The obvious purpose of the rule is to block attempts of offenses byhiding themselves or by employing dilatory tactics."

SEC. 4. Resolution of investigating prosecutor and its review. If the investigatingprosecutor finds cause to hold the respondent for trial, he shall prepare the resolution andinformation. He shall certify under oath in- the information that he, or as shown by therecord, 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 theaccused is probably guilty thereof; that the accused was informed of the complaint and ofthe evidence submitted against him; and that he was given an opportunity to submitcontroverting 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 theprovincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputyin 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 thereofand shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutorwithout the prior written authority or approval of the provincial or city prosecutor or chiefstate prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint buthis recommendation is disapproved by the provincial or city prosecutor or chief stateprosecutor 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 anotherassistant 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 propio, the Secretary of Justice reverses or modifies the resolution ofthe provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutorconcerned either to file the corresponding information without conducting antherpreliminary investigation, or to dismiss or move for dismissal of the complaint orinformation with notice to the parties. The same rule shall apply in preliminaryinvestigations conducted by the officers of the Office of the Ombudsman. (4a)

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The investigating prosecutor after the preliminary investigation will now issue a resolution to be approved byhis superior recommending the filing or dismissal of the case. If he finds probable cause to hold the respondentfor trial, he shall prepare the resolution and information and he will certify under oath that he, or as shown by therecord, an authorized officer, has personally examined the complainant and his witnesses that there is areasonable ground to believe that a crime has been committed that the accused is probably guilty thereof, that the

accused was informed of the complaints and of the evidence submitted against him and that he was givenopportunity to submit controverting evidence. That is a standard form in the information filed by the prosecutor.

Q: Suppose the prosecutor failed to make that certification in the information, is the information valid ordefective?

A: It is still VALID. Notwithstanding the absence in the information of a certification as to the holding of apreliminary investigation, the information is nonetheless considered valid for the reason that such certification isnot an essential part of the information itself and its absence cannot vitiate it as such. (Alvizo vs. Sandiganbayan220 SCRA 45)

Q: After that, what will he do? To whom will he forward his resolution?A: To the provincial or city prosecutor or chief state prosecutor depending on who is conducting the

preliminary investigation;

Q: Is the resolution of the prosecutor appealable?A: YES. It is appealable to the Secretary of Justice. The last paragraph of Section 4 gives the power of review

to the Department of Justice that is, if the case originally started in the Fiscals office.

The DOJ can reverse or modify resolution of a city or provincial prosecutor and the procedure for review isgoverned not by the Rules of Court, but by a department order. There is also a procedure there for appeal orreview by the DOJ (2000 DOJ Rules on Appeal, July 3, 2000).

One of the cases we have to remember here is the leading case ofCRESPO VS. MOGUL, (June 30, 1987)Here are some points discussed in this case:

Q: What happens if the DOJ sustains the appeal?A: It will reverse the resolution of the prosecutor.

Example:PROSECUTOR: Dismiss! The case should not be filed.DOJ: Reversed! You file the case.

Walang magawa ang fiscal diyan. He must file the case because that is the order of his superior. What if:

Example:PROSECUTOR: There is probable cause. I will file the case.RESPONDENT/ACCUSED: Appeal!DOJ: I will reverse. You are hereby ordered not to file.

Q: E kung na-file na?

A: Under the new rules, the fiscal is ordered to file a motion to dismiss the case in court.

There is no problem if the resolution of the fiscal is to dismiss and then ang DOJ order is to file. Ang mahirapis if the resolution of the fiscal is to file and na-file na, and then sabi ng DOJ, ah walang probable cause do notfile! Prosecutor: Eh, na-file na?DOJ: Okey, you move to dismiss the case.

So the fiscal will file a motion to dismiss. His argument will be, there is no probable cause according to DOJ my superior and the Secretary of Justice has ordered me to move for the dismissal of the case. Eh kung sabihinng court:

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COURT: Ayoko! Tuloy ang kaso! [ay naloko na!!]FISCAL: Sorry Your Honor but that is the order of my superior. I cannot go against the DOJ.COURT: Superior mo, hindi akin! It is not my superior! Ituloy ang kaso!

Yaan!! That was the issue in the case ofCRESPO. And the SC ruled that:

CRESPO vs. MOGULJune 30, 1987

HELD: The power of the fiscal is practically absolute whether to file or not to file. But once thecase is filed in court, the power now belongs to the judge and he is the one who will determinewhether to proceed or not to proceed. The court will be the one to decide because control over thecase is already shifted in the court. The court now has the absolute power and once the court tell thefiscal you proceed, then the fiscal has to proceed. The latter should not shirk from his responsibilityof representing the People of the Philippines. So the absolute power of the fiscal ends upon the filingof the case in court.

As an advise [advise lang, hindi naman order], that in order to avoid this unpleasant situation

where the opinion o the Secretary of Justice is not to proceed but the opinion of the judge is toproceed, and the fiscal is caught in the middle [naipit ba!], when the case is already filed in court, asmuch as possible huwag ka (DOJ) ng makialam. The Secretary of Justice as much as possible,should not review the resolution of the fiscal to file when the case is already filed in court to avoid thisunpleasant situation because it will really cause a conflict of opinion between the two (2) offices.

There are other cases where the SC elaborated on this but the leading case is CRESPO. I will just cite to yousome of these cases where the SC had something to comment about this issue as we have no more time to goover them one by one:

1. REPUBLIC VS. SUNGA (162 SCRA 191);2. MARCELO VS. CA (235 SCRA 39);3. PEOPLE VS. CRUZA (237 SCRA 410);4. MARTINEZ VS. CA (237 SCRA 575);5. MOSQUERA VS. PANGANIBAN (258 SCRA 473);6. LEDESMA VS. CA, 278 SCRA 658 (September 5, 1997).

And based on some of these cases in relation to reinvestigation, the SC held that once the case is already incourt and the accused would like to have his case reinvestigated, the court must agree. There must always be theconcern of the court because of the absolute control is already in the court once the case is filed. And take notethat there is no double jeopardy in preliminary investigation.

SEC. 5. Resolution of investigating judge and its review. Within ten (10) days after thepreliminary investigation, the investigating judge shall transmit the resolution of the caseto the provincial or city prosecutor, or to the Ombudsman or his deputy incases ofoffenses 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 supportinghis action, together with the record of the case which shall include: (a) the warrant, if thearrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supportingevidence of the parties; (c) the undertaking or bail of the accused and the order for hisrelease; (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 thecomplaint.

Within thirty (30) days from receipt of the records, the provincial or city prosecutor, orthe Ombudsman or his deputy, as the case may be, shall review the resolution of theinvestigating judge on the existence of probable cause. Their ruling shall expressly and

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clearly state the facts and the law on which it is based and the parties shall be furnishedwith copies thereof. They shall order the release of an accused who is detained if noprobable cause is found against him. (5a)

Section 5 applies to preliminary investigations conducted by MTC judges. Remember, aside from fiscal, MTC

judges are also allowed to conduct preliminary investigations. But in Metro Manila and chartered cities, MTCCjudges do not conduct preliminary investigations everything is given to the state prosecutor.

What happens if the judge or the MTC judge will conduct a preliminary investigation? The judge will conduct apreliminary investigation. Ang kanya, there is a probable cause or there is no probable cause, either way he musforward his resolution to the provincial prosecutor. The provincial prosecutor will be the one to decide.

Q: Do you mean to tell me the provincial prosecutor will conduct again another preliminary investigation?A: NO. He will just review the findings of the judge. Maybe the provincial fiscal will simply adop the finding of

the MTC judge.

Q: Suppose sabi ng fiscal, Di ako kuntento. I am not satisfied with the preliminary investigation by that judgeI will conduct another preliminary investigation Puwede ba yan?

A: YES. The provincial prosecutor has 100% control. He may adopt the finding and just follow therecommendation filed, or he may conduct his own preliminary investigation.

Q: What happens if his decision is different from what the MTC judge believes? Whose decision will prevail?A: Fiscals decision will prevail. He can reverse the resolution of the MTC judge.

And in case the respondent has been arrested while the case is under preliminary investigation and detainedin jail, according to Section 5, last paragraph, last sentence, the provincial fiscal shall order the release of anaccused who is detained if no probable cause is found against him. This is one instance where the opinion of theprovincial prosecutor prevails over that of the judge. The fiscal can reverse the findings of the judge eh.

Q: Bakit naman ganun? Why are we giving the provincial fiscal more power than the MTC judge when itcomes to preliminary investigation?

A: The reason is simple: who will prosecute the case the judge or the fiscal? Of course, it is the fiscal. Hewill be the one to handle the case and not the judge.

Another reason is given by the SC in one case that actually, preliminary investigation is not really the functionof the judiciary. The power to determine whether to file or not file does not belong to the judiciary. When apreliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an exception tohis usual judicial duties. The assignment of that function to judges of inferior courts and to a very limited extent tocourts of first instance was dictated by necessity and practical considerations. Consequently, the findings of aninvestigating judge are subject to review by the provincial fiscal. (Castillo vs. Villaluz, March 8, 1989)

Alright. Lets go to Section 6 a very important provision when warrant of arrest may be issued.

SEC. 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 immediatelydismiss the case if the evidence on record clearly fails to establish probable cause. If hefinds probable cause, he shall issue a warrant of arrest, or a commitment order if theaccused has already been arrested pursuant to a warrant issued by the judge whoconducted the preliminary investigation or when the complaint or information was filedpursuant to section 7 of this Rule. Incase of doubt on the existence of probable cause, the

judge may order the prosecutor to present additional evidence within five (5) days fromnotice and the issue must be resolved by the court within thirty (30) days from the filing ofthe complaint of information.

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x x x x x x

Let us picture what happens here. The case is triable by the RTC so this means, 6 years and 1 day up.Now, the fiscal conducts a preliminary investigation. Assuming after finding probable cause, he will fileinformation. After that, what will happen? The judge may issue a warrant of arrest to arrest the accused because

in his opinion, there is probable cause to issue the warrant of arrest. So that is the situation.

So you will notice that this word probable cause has many functions. When the fiscal file the informationhe believes that there wasprobable causeprobable cause to file the case. Pagdating sa court, the RTC judgewill presentprobable cause na naman to issue warrant of arrest. Iba yan eh! Kanya-kanya yan probable causeto file,probable cause to issue warrant. That is why in the case of

CASTILLO vs. VILLALUZMarch 8, 1989

HELD: The fiscal prevails over the judge only in the determination of the existence of a probablecause justify the filing of a complaint or information. This task is concededly executive. But thedetermination of probable cause to justify the issuance of a search warrant or a warrant of arrest is

the constitutional prerogative of the judge and may not be withdrawn from him or even only limited bystatute or the Rules of Court. This task is undoubtedly judicial.

The findings of the fiscal in the preliminary investigation do not control or foreclose the exerciseof the power conferred personally on the judge under Section 2 of the Bill of Rights. That power is hisalone.

Q: Now, under the Constitution, before the RTC judge issued the warrant of arrest because of probablecause, anong dapat gawin niya?

A: He must personally examine the complainant and his witnesses to determine whether there is probablecause to issue or not to issue a warrant of arrest.

How do you interpret the phrase, personally examine? I have to admit that the cases before were somehowconfusing. There were some case na literal pag-file mo ng kaso, the RTC judge has to call the complainantstanong tanong tanong to determine the probable cause to issue a warrant. Otherwise if I will not examinethem, it is unconstitutional for to issue a warrant. Or in another case, RTC judge: sabi ng fiscal, may probablecause to file eh. Tama na yon! I believe him. I will now issue the warrant. But there are some cases that say nahindi puwede yan because you are giving now to the fiscal the right to determine your duty under the ConstitutionYou cannot do that because the law says you must personally examine. Otherwise, the fiscal is the one who isdetermining.

But meron namang mga kaso where the SC said that if we will require the RTC judge to personally examinethe complainant and his witnesses to determine probable cause before issuing the warrant, he might have nomore or nothing to do more except to do that. He cannot anymore try cases, wala na, puro na lang probablecause. So he may not have time anymore to do his usual duty. Thus he can rely on the findings of the fiscal.

So this really cause some kind of confusion. Now, these confusions are now reconciled. There are manycases such as ROBERTS VS. CA (the PEPSI-COLA 349 tansan case). But the first one the SC really discussed

the issue exhaustively was the 1991 case of

LIM, SR. vs. FELIX194 SCRA 292 [1991]

FACTS: The information was filed information lang and a certification by the fiscal that basedon the investigation, there is probable cause. And on the basis of that information certification, the

judge issued a warrant of arrest.

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ISSUE: May a Judge without ascertaining the facts through his own personal determination andrelying solelyon the certification or recommendation of a prosecutor that a probable cause existsissue a warrant of arrest?

HELD: In order to clarify this rule once and for all, the SC went over all the cases where this issue

kept coming back, starting from: US VS. OCAMPO (18 Phil.); AMARGA VS. ABBAS (98 Phil.);PLACER VS. VILLANUEVA (126 SCRA 463); SULTA VS. CA (143 SCRA 228); SOLIVEN VS.MAKASIAR (167 SCRA 393); CASTILLO VS. VILLALUZ (171 SCRA 39); PEOPLE VS. INTING (187SCRA 798); to PEOPLE VS. DELGADO (189 SCRA 725).

This is the dilemma: if a Judge has to personally question each complainant and witness or goover the records of the Prosecutor's investigation page by page and word for word before he acts oneach of a big pile of applications for arrest warrants on his desk, he may have no more time for his orher more important judicial functions. At the same time, the Judge cannot ignore the clear words ofthe 1987 Constitution which requiresprobable cause to be personally determined by the judge, not byany other officer or person.

If a Judge relies solely on the certification of the Prosecutor, he has not personally determinedprobable cause. The determination is made by the Provincial Prosecutor. The constitutionalrequirement has not been satisfied.

The Judge does not have to personally examine the complainant and his witnesses. TheProsecutor 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 barecertification. All of these should be before the judge. The judge must go beyond the Prosecutor'scertification and investigation report whenever necessary. He should call for the complainant andwitnesses themselves to answer the court's probing questions when the circumstances of the case sorequire.

We reiterate that in making the required personal determination, a judge is not precluded fromrelying on the evidence earlier gathered by responsible officers. The extent of the reliance dependson the circumstances of each case and is subject to the judge's sound discretion. However, (ashappened in the case ofLim) the judge abuses that discretion when having no evidence before him,he issues a warrant of arrest.

How did the SC reconcile that? When the fiscal files an information, the judge will require the fiscal to attachto the information all the records of the preliminary investigations affidavits, counter-affidavits, or other whateverdocuments. All the evidence will be submitted to the judge and he will review them. After reading them, if the

judge is not satisfied that there was probable cause, he may summon the witnesses. BUTif he is satisfied, he canissue the warrant without the need for summoning the witnesses. He can rely on the affidavits. That is what

personally examinedmeans.

ROBERTS vs. COURT OF APPEALSMarch 5, 1996

FACTS: This is the Pepsi-Cola 349 tansan case. Pag-file ng fiscal, marami, makapal angdocuments. The records of the case is voluminous. Maraming nanalo ng 349 nun eh. So pag-file,after 20 minutes the judge issued the warrant of arrest. The accused challenged it:

ACCUSED: You did not determine probable cause.JUDGE: Bakit? All the supporting documents are attached in the information.ACCUSED: Yes, but how can you go over them in less than 20 minutes? You did not go

over them. Ibig sabihin binasa mo lahat yan within 20 minutes only?So it is now doubtful that the judge will go over the entire records within 20 minutes. Ang kapal ng

records eh!

HELD: Sabi ng SC: Eh kung mabilis pala mag-basa ang judge? [Anong pakialam mo? Ha!]Angimportante nandoon ang records!

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Now, these issues were further supplemented by other cases in 1997. The leading case is

HO vs. PEOPLE OF THE PHILIPPINES280 SCRA 365, October 9, 1997

ISSUE: Is it required that everything that was filed in the fiscals office will really be included?Lahat ba talaga? Eh kung makapal?

HELD: It is NOT required that the complete or entire records of the case during the preliminaryinvestigation be submitted to and examined by the judge. We do not intend to unduly burden trialcourts by obliging them to examine the complete records of every case all the time simply for thepurpose of ordering the arrest of an accused. What is required, rather, is that the judge must havesufficient supporting documents (such as the complaint, affidavits, counter-affidavits, swornstatements of witnesses or transcripts of stenographic notes, if any) upon which to make hisindependent judgment or, at the very least, upon which to verify the findings of the prosecutor as tothe existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutorsrecommendation.

Going back to Section 6 (a):

(a) By the Regional Trial Court. Within ten (10) days from the filing of the complaintor information, the judge shall personally evaluate the resolution of the prosecutor and itssupporting evidence. [This is a new sentence:]He may immediately dismiss the case if theevidence on record clearly fails to establish probable cause. If he finds probable cause, heshall issue a warrant of arrest, or a commitment order if the accused has already beenarrested pursuant to a warrant issued by the judge who conducted the preliminaryinvestigation or when the complaint or information was filed pursuant to section 7 of thisRule. [The last sentence is also new:]In case of doubt on the existence of probable cause,the judge may order the prosecutor to present additional evidence within five (5) daysfrom notice and the issue must be resolved by the court within thirty (30) days from thefiling of the complaint of information.

This brings to my mind one of the leading cases on this issue which was asked in the Bar and which I alsoasked in some examinations here. The case of

AMARGA vs. FISCAL98 Phil. 739

FACTS: The provincial fiscal filed an information in the CFI (now, RTC). Normally, the judge willissue the warrant. Nag-alanganin naman ang judge. What the judge did was to issue an orderrequiring the fiscal to appear before him and convince him that there is probable cause for the judgeto issue warrant. Eh ayaw ng fiscal, My golly! That is already an insult for me as a quasi-judicial

officer! I found probable cause. That is my finding. The judge should believe me because that is myprerogative. So ayaw mag-sunod ng fiscal. Judge, Ayaw mo ha! Okey! Case is dismissed!

Remember, there are two (2) questions there asked in the bar:

ISSUE #1: Does the court have the power to require the fiscal to present evidence to convincethe judge that there is probable cause to issue the warrant of arrest when the fiscal already foundprobable cause to file the case?

HELD: YES. The power of the fiscal is to determine probable cause to file while for the judge isprobable cause to issue the warrant of arrest. Iba yung iyo, iba rin yung sa akin! You cannot say thatsimply because you found probable cause, I will follow you. [We already discussed that principle and

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it is already stated in the rules] So, it will be the power of the judge to inform the prosecutor and torequire the fiscal to convince him that there is probable cause to issue the warrant. (now lastsentence of Section 6 [a])

ISSUE #1: Since the fiscal refuses to comply, did the judge act correctly in ordering the dismissal

of the information?HELD: NO. This time mali ang judge. If the fiscal does not want to comply with the judges order,

the remedy of the judge is not to issue the warrant. Ayaw mong sumunod? then do not issue thewarrant. But do not dismiss the case because this time we are already encroaching the power of theprosecutor. (c.f. second sentence of Section 6 [a])

Now, based on the present rules, we will now ask the same questions today.

Q: Can the judge require the fiscal to present evidence of probable cause in convincing him to issue thewarrant of arrest?

A: YES. That is the prerogative of the judge. (AMARGA VS. ABBAS)

Q: If fiscal refuses, has the judge the power to dismiss the case?A: In the case ofAmarga, no. However, under Section 6, the judge may immediately dismiss the case if the

evidence on record clearly fails to establish probable cause.

That is a new sentence, xxx he may immediately dismiss the case xxxnot found in the prior rule. To mymind, that has change the answer. While before, the judge may not have the power to dismiss the case if he findsno probable cause. Right now, the rules says YES because of that new provision, he may immediately dismissthe case if the evidence on record clearly fails to establish probable cause even if the fiscal has already foundprobable cause. In other words, this has changed the ruling in the old case ofAmarga.

Lets go to Section 6 [b]: (Preliminary Investigation conducted by MTC judge)

(b) By the Municipal Trial Court. When required pursuant to the second paragraph ofsection of this Rule, the preliminary investigation of cases falling under the original

jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal TrialCourt, or Municipal Circuit Trial Court may be conducted by either the judge or theprosecutor. When conducted by the prosecutor, the procedure for the issuance of awarrant of arrest by the judge shall be governed by paragraph (a) of this section. When theinvestigation is conducted by the judge himself, he shall follow the procedure provided insection 3 of this Rule. If his findings and recommendations are affirmed by the provincialor city prosecutor, or by the Ombudsman or his deputy, and the correspondinginformation is filed, he shall issue a warrant of arrest. However, without waiting for theconclusion of the investigation, the judge may issue a warrant of arrest if he finds after anexamination in writing and under oath of the complainant and his witnesses in the form ofsearching questions and answers, that a probable cause exists and that there is anecessity of placing the respondent under immediate custody in order not to frustrate theends of justice.

Obviously, this rule does not apply in chartered cities but in municipalities. Sa probinsiya, for example, thecase is murder. That is not triable by MTC but you can file the complaint for murder before the MTC not for thepurpose of trial but for the purpose of preliminary investigation. That is the difference.

We already learned that he resolution of the judge, whether to file or not to file, is ipasa niya sa ProvinciaProsecutor who has the final say. Thats why the rule says, if his findings and recommendations are affirmed bythe provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filedhe shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge mayissue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his

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witnesses in the form of searching questions and answers, that a probable cause exists and that there is anecessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

Lets compare.

Q: Does the fiscal have the power to issue warrant of arrest?A: NO. His power is to conduct preliminary investigation and if there is probable cause File!

Q: Who will issue the warrant?A: RTC.

Pero ang municipal judge, iba eh. The police will file a complaint for homicide in MTC for preliminaryinvestigation. Pag-basa ng MTC judge, aba! Grabe ito! There is probable cause. Pero teka muna, delikado itobaka makawala arrest him!So even before the case is filed in the RTC, the MTC judge has the power to issuewarrant of arrest.

That is the difference between the power of the MTC judge and the power of the Provincial Prosecutor. Bothof them have the power to conduct a preliminary investigation in the province. But the fiscal has no power to issue

a warrant but the judge has the power to issue warrant even while the preliminary investigation is going on. Thatis why in the province, complainants prefer to file sa MTC para issue dayun ang warrant.

The issuance of warrant by the MTC judge is ex parte. He will just determine it based on the affidavit of thecomplainant and his witnesses after searching questions and answers. So the examination conducted by the

judge is literal in meaning. And once you are arrested, tuloy tayo. You now follow preliminary investigation. Yousubmit now your counter-affidavits. For what purpose? We will determine whether the case will be filed in the RTCor not.

So there are two (2) stages:

1. first stage Preliminary Examination to determine whether or not to issue a warrant of arrestThis is done ex parte.

2. second stage Preliminary Investigation proper - to determine, after you are arrested, whetheor not you will be indicted in the RTC.

Q: Is it mandatory that every time you file a case in the MTC, the judge will always issue a warrant or arrest?A: NO. Hindi naman sinabi yun because in order to determine whether a warrant of arrest will be issued, the

judge will conduct the examination. He will examine in writing under oath of the complainant and witnesses in theform of searching questions and answers, that a probable cause exists and that there is a necessity of placing therespondent under immediate custody in order not to frustrate the ends of justice.

So if you file a case for homicide against somebody in the municipality; tao na kilala mo; mayaman at maymalalaking properties; if Im the judge, I will not issue a warrant of arrest. Tatakbo ba yan? I dont think so. I mayor may not issue the warrant but my criterion is: is there a necessity of placing him under immediate custody inorder not to frustrate the end of justice? But suppose the accused has no permanent address, ayan! Delikado na

yan, baka makawala! I will now issue a warrant of arrest.

Now, what has changed the picture now is this: there is no question if the case is triable by the RTC, the MTCjudge will conduct a preliminary investigation in order to determine whether or not the case should be filed in theRTC.

Q: But now, when is the preliminary investigation required?A: When the crime is punishable by 4 years, 2 months and 1 day and up.

Q: The case has a maximum penalty of 6 years therefore triable by the MTC. Is the MTC judge required toconduct a preliminary investigation?

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A: YES. Mandated man yan ba! Although it is triable by the MTC, it is still mandatory for the MTC judge toconduct preliminary investigation because any crime which carries the penalty of 4 years, 2 months and 1 day orup, is subject to preliminary investigation.

Q: In this case, who will conduct the preliminary investigation? The fiscal or the MTC judge?

A: Either one of them. Let us read the opening paragraph of Section 6 (b):

(b) By the Municipal Trial Court. When required pursuant to the second paragraph ofsection of this Rule, the preliminary investigation of cases falling under the original

jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal TrialCourt, or Municipal Circuit Trial Court may be conducted by either the judge or theprosecutor.

But I was wondering with this issue. This happens in places where there is only 1 branch, 1 judge. Forexample, ako ang judge and the case is filed before me preliminary investigation ito ha! 4 years, 2 months and1 day. There is a probable cause so I will continue. Now, who will try the case? Ako rin di ba? Sabihin ngdefense, Ah wala na. Talo na kami. Bias ka na eh! Naloko na! This might be a ground for disqualification ehbecause you already found probable cause, chances are dire-diretso na ito you will convict me, you are no

longer impartial. This is now the danger because of this new provision.

Suppose sabihin ng judge, Hindi man. I found probable cause only for the case to proceed to trial but for allyou know during the trial, I might find you innocent, not guilty beyond reasonable doubt. Ang criterion ko diyan isprobable cause man lang probably you are guilty. But when I will try it, it should be guilt beyond reasonabledoubt. Yan ang delikado dito! Mabuti sana if the fiscal was the one who conducted the preliminary investigationBut when I am the one who conducted the preliminary investigation and then I will also be one to try the casethere might be complaints of biases or prejudgment. So there are provisions in the new rules which might createpractical problems.

Lets go to the last portion of Section 6. Lets read Section 6 [c]:

(c) When warrant of arrest not necessary. A warrant of arrest shall not issue if theaccused is already under detention pursuant to a warrant issued by the municipal trialcourt in accordance with paragraph (b) of this section, or if the complaint or informationwas filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. Thecourt shall them proceed in the exercise of its original jurisdiction. (6a)

Normally, when the information is filed in court, the court issues a warrant of arrest. However, there areinstances when the court need not issue a warrant of arrest.

Q: What are the instances when the court need not issue a warrant of arrest?A: Under Section 6 [c], the following are the instances:

1. if the accused is already under detention pursuant to a warrant issued by the MTC in accordancewith paragraph [b] of Section 6. If the MTC issues the warrant of arrest and later on the casesreaches the RTC because there is probable cause, there is no need for the RTC to issue another

warrant because there is already a warrant issued by the MTC. And as a matter of fact, the accusedhas already been detained;

2. when the complaint or information is filed pursuant to Section 7 of this rule. Section 7 theaccused is arrested for committing a crime in the presence of a peace officer, the fiscal will onlyconduct an inquestpreliminary investigation and there is no need to issue a warrant because theaccused is also under detention already. Normally, what the court there issues is a commitmentorder, just to confirm the detention of the accused; and

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3. if the accused is charged for an offense penalized by fine only di na kailangan ang warrant oarrest. There are crimes where there is no penalty for imprisonment but only fine like damage toproperty through reckless imprudence. Based on the new rules, there is no need for a warrant, just anorder to appearis sufficient.

SEC 7. When accused lawfully arrested without warrant. When a person is lawfullyarrested without a warrant involving an offense which requires a preliminary investigation,the complaint or information may be filed by a prosecutor without need of suchinvestigation 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 theoffended party or a peace officer directly with the proper court on the basis of the affidavitof the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for apreliminary investigation in accordance with this Rule, but he must sign a waiver of theprovision of Article 125 of the Revised Penal Code, as amended, in the presence of hiscounsel. Notwithstanding the waiver, he may apply for bail and the investigation must beterminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminaryinvestigation, the accused may, within five (5) days from the time he learns of its filing, askfor a preliminary investigation with the same right to adduce evidence in his defense asprovided in this Rule. (7a; sec. 2, R.A. No. 7438)

Section 7 is another important provision. This is called INQUEST PRELIMINARY INVESTIGATION, related toRule 113, Section 5 [a] and [b] on warrantless arrest. Here, there is no need for preliminary investigation becausethere is a deadline for the accused to be detained. Otherwise the peace officer will be guilty of arbitrary detention

delay in the delivery.

If we will conduct a preliminary investigation, that will last for many days. So what will happen to a person whocommitted a crime if we will conduct a regular preliminary investigation? Well, to avoid this possibility, wala ngpreliminary investigation. The prosecutor will conduct an INQUEST preliminary investigation based only on the

affidavit of the complainant, the police maybe, and his witnesses so that the court may issue a commitment orderWith that, the deadline has been met you have been delivered to the proper judicial authorities.

Now, there is a new sentence inserted in Section 7, first paragraph In the absence or unavailability of aninquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the propercourt. a very radical provision.

The normal procedure is: for example, the offended party or the peace officer will file the case before thefiscal to inquest preliminary investigation. And then the fiscal will now file the information in court lets say in theRTC.

Q: However, suppose there is no inquest prosecutor? Or there is an inquest prosecutor but he is noavailable, what will happen now to the case?

A: The new provision says, the complaint may be filed by the offended party or a peace officer directly withthe proper court so that the accused should be delivered.

Why is this a very radical change? There is no problem with the MTC because you can file directly in theMTC. But as a matter of practice, you cannot file a complaint directly with the RTC. Everything here is done byinformation. The RTC does not entertain complaints filed by the police or the offended party.

But now, puwede na eh, under this situation lang: (1) the accused is arrested without a warrant and (2)there is the absence or unavailability of an inquest prosecutor. With that situations, the new rules now allow adirect filing of the complaint by the offended party or the peace officer directly with the proper court even in theRTC. That is why this is radical change.

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Now, whether this is the one or the other, you cannot deny the fact that the accused is entitled to apreliminary investigation. You cannot deprive him of this right. When there is a case filed in court withoutpreliminary investigation so that he can be detained indefinitely in which case, he can ask for a preliminaryinvestigation in accordance with this rule but after the case is filed. Baliktad!

Normally, the preliminary investigation comes before the filing of the case. Dito naman, filing comes beforepreliminary investigation baliktad! During preliminary investigation, if there is no probable cause, the complaintwill be dismissed or the fiscal will move to dismiss the case. But if you insist on that right to preliminaryinvestigation before filing, ayaw mo ng inquest, then you must sign a WAIVER in the presence of your counsel waiver of your right under Article 125, RPC. Here, while the preliminary investigation is still going on, you remainunder detention. The second paragraph applies if he insist on the right to a regular or ordinary preliminaryinvestigation.

Correlate this with Section 2 [e] of RA 7438 Law Protecting Rights of Persons under custody i.e. he musbe assisted by his counsel. Otherwise the waiver is not valid.

Now, if there is no insistence, the case will be filed ahead. After it was filed, you can still ask for preliminary

investigation within 5 days from the time you learn of the filing of the case. So within 5 days lang, otherwise youare deemed to have waived your right to preliminary investigation

Note that the SC had ruled that the period of 5 days is NON-EXTENDIBLE that is absolute. (PEOPLE vsCA, 242 SCRA 645). The five-day period is absolute. After 5 days, you have no more right to ask for a preliminaryinvestigation.

Take note that the general rule, once you post bail, you are waiving your right to a preliminary investigation. InPEOPLE VS. CA, if you do not want to waive your right to preliminary investigation, then if you post bail, you musmake a reservation. You must say, Im posting bail but Im not waiving my right to preliminary investigation. Infact, I am asking for it.In Section 7, last paragraph, when the accused post bail for his provisional release, he isdeemed to have waived his right to preliminary investigation. To avoid the waiver, there must be a previous orsimultaneous demand for a preliminary investigation upon posting of bail bond.

SEC. 8. Records. (a) Records supporting the information or complaint. Aninformation 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 evidenceand the resolution on the case.

(b) Record of preliminary investigation. The record of the preliminary investigation,whether conducted by a judge or a prosecutor, shall not form part of the record of thecase. However, the court, on its own initiative or on motion of any party, may order theproduction of the record or any of its part when necessary in the resolution of the case orany incident therein, or when it is to be introduced as an evidence in the case by therequesting party.

Section 8 is just a reiteration of a doctrine that when the fiscal files an information, he should back up hiscertification of probable cause with appropriate records. An information with mere certification is not enough. (Lim

Sr. vs. Felix, supra)

SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on SummaryProcedure. (a) If filed with the prosecutor. If the complaint is filed directly with theprosecutor involving an offense punishable by imprisonment of less than four (4) years,two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall beobserved. The prosecutor shall act on the complaint based on the affidavits and othersupporting 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 withthe Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this

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section, the procedure in section 3 (a) of this Rule shall be observed. If within ten (10) daysafter the filing of the complaint or information, the judge finds no probable cause afterpersonally evaluating the evidence, or after personally examining in writing and underoath the complainant and his witnesses in the form of searching questions 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 probablecause. 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 ifthe accused had already been arrested, and hold him for trial. However, if the judge issatisfied that there is no necessity for placing the accused under custody, he may issuesummons instead of a warrant of arrest. (9a)

Section 9 Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure.Obviously, Section 9 talks only of cases (a) cognizable only by MTC; (b) the penalty does not exceed 4 years 2months because even if it is 4 years 2 months 1 day (up to 6 years), it still requires a preliminary investigationunder the new rules; and (c) it should not be covered by the Rules of Summary Procedure. The coverage of

summary procedure is up to 6 months penalty.

Q: What cases are covered by Section 9?A: Where the prescribed penalty exceeds 6 months but not more than 4 years and 2 months. These does not

require preliminary investigation and also not covered by the summary rules.

Q: Now, going back to Rule 110. In cases cognizable by the MTC, how is it instituted?A: Section 1, Rule 110:

SECTION 1. Institution of criminal actions. Criminal actions shall be instituted asfollows:

(a) For offenses where a preliminary investigation is required pursuant to section 1 ofRule 112, by filing the complaint with the proper officer for the purpose of conducting therequisite preliminary investigation.

(b) For all other offenses, by filing the complaint or information directly with theMunicipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the officeof the prosecutor. In Manila and other chartered cities, the complaints shall be filed withthe office of the prosecutor unless otherwise provided in their charters.

x x x x x

So there are two (2) ways: (a) direct filing or (b) you file with the prosecutor and the provincial prosecutor willfile the information.

Lets go to Section 9. If it is filed with the prosecutor, the procedure in Section 3[a] of this rule shall beobserved. There is no need for preliminary investigation. The prosecutor will simply find out based on the affidaviof the complainant and his witnesses whether or not there is probable cause. Wala ng counter-affidavit. There is

no need for the prosecutor to give a chance to the respondent to give this counter-affidavits. Section 3[a] langsundin eh. There is no mention of [b], [c] or [d].

Section 9[b]. What happens if it is filed in the MTC directly? Again, the judge will observe the same procedurein Section 3[a] of this rule. If the judge finds no probable cause after personally evaluating the evidence, or afterpersonally examining in writing and under oath the complainant and his witnesses in the form of searchingquestions and answers, he shall dismiss the same. So he has the power to dismiss the case. Why continue ifthere is no probable cause?

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Rule 112Preliminary

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The next sentence is new: 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 causedespite the additional evidence, he shall, within ten (10) days from its submission or expiration of said perioddismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if theaccused had already been arrested, and hold him for trial. [The next sentence is new again:] However, if the

judge is satisfied that there is no necessity for placing the accused under custody, he may issue summonsinstead of a warrant of arrest.

So it is not really necessary that every time a case is filed in the MTC with a penalty not more than 4 yearsand 2 months, kailangan mag-warrant of arrest agad ang judge. Wala na yan! That is the old practice. Sometimesit is very tedious. Lalo na sa MTC. Karamihan ng kaso sa MTC is bouncing check law. If I were the MTC judgebouncing check law, sino ba yang akusado? Di ko kilala. Balita ko maraming kaso yan.Ah sige, I will issue awarrant.

Pero halimbawa, sino yang akusado? He is Jet Pascua, Your Honor. Uy! Kilala ko ito! Businessman itotitser pa sa Ateneo. Mayaman ito! Sus! Minalas lang. If I am the judge, I will not issue a warrant. Tatakbuhan kaba niyan?

So the judge need not issue a warrant. You better tell that to those judges because they are automatic ba! warrant! warrant! warrant! Just imagine kahit respectable man, first time offender warrant kaagad ang mga MTC

judges.

Well, under the new rules, hindi man kailangan bah! Even if there is probable cause to file, if he is satisfiedthat there is no necessity to put the accused in custody, he may issue summons. Summons here is not really thesame in the Rules of Court. It is just a notice bah notice that you are required to appear. And that is a newprovision.

Now, we will go to some decided cases related to this rule.

PEOPLE vs. NAVARRO270 SCRA 393, March 25, 1997

NOTE: This case signifies that once the case reached the court, the court has the absolutepower. Anything that you like to happen in the case like reinvestigation or absence of preliminaryinvestigation, the judge will be the one to approve.

FACTS: The RTC judge felt that the case should be reinvestigated, or maybe there is nopreliminary investigation. So he orders the fiscal to conduct preliminary investigation, then submit theresult to him afterwards what happened. Siguro, the judge had particular confidence in the assistantprovincial prosecutor. Sabi ng judge, The preliminary investigation should be conducted by thisparticular prosecutor provincial assistant prosecutor Boyd Atensor. Siya ang nag-pili ba. Sabi ngprovincial prosecutor, Hindi! Ako ang magpili and not you!

ISSUE: In remanding the complaint or information to the provincial prosecutor, may a regionaltrial court judge name or designate a particular assistant prosecutor to conduct the preliminaryinvestigation of the case?

HELD: NO. The RTC judge is already interfering with the office of the prosecutor. It must bestressed that preliminary investigation is an executive, not a judicial, function. That an RTC judge hasno authority to conduct a preliminary investigation necessarily means that he cannot directly order anassistant prosecutor, particularly over the objections of the latter's superiors, to conduct a preliminaryinvestigation. To allow him to do so is to authorize him to meddle in the executive and administrativefunctions of the provincial or city prosecutor.

Q: Can a preliminary investigation be stopped by asking the court to grant a preliminary injunction or arestraining order? Can a criminal prosecution be enjoined or restrained?

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A: NO, as a GENERAL RULE. If you believe that you are not guilty, then you prove that in court. Anyway ifyou are not guilty, you will be acquitted.

However, the SC came out with EXCEPTIONS where courts is authorized to stop a criminal prosecution.These exceptions were all cited in the case of

BROCKA vs. ENRILE192 SCRA 83

HELD: Indeed, the general rule is that criminal prosecution may not be restrained or stayed byinjunction, preliminary or final. There are howeverexceptions, among which are:

a. To afford adequate protection to the constitutional rights of the accused;b. When necessary for the orderly administration of justice or to avoid oppression ormultiplicity of actions;c. When there is a pre-judicial 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; andj. When there is clearly no prima facie case against the accused and a motion to quashon that ground has been denied.

There are some interesting cases where the SC intervened. Normally, hindi nakikialam ang SC eh i-acquitmo na lang yan sa trial. But there are cases when the SC is convinced that there is no probable cause, bakit mopa pahirapan yung tao? You can order the case to be dismissed. These are rare instances where the SCbecomes activist.

In the case of ALEADO VS. DIOKNO (232 SCRA 192) two (2) lawyers: Atty. Diosdado Jose Aleado and Atty

Roberto Mendoza who were associates in the office of senator Jovito Salonga were implicated in the murder of aGerman national. There was an investigation and a case was filed against them. Salonga entered into picture andquestioned whether or not there is probable cause. [Normally, hindi dapat yan eh. Yang probable cause, sa fiscalang yan, hindi dapat sa SC.]

But surprisingly, the SC reviewed and said that there was no probable cause which justified the issuance oforder of arrest of the 2 lawyers. The SC ordered that the warrant of arrest be set aside and the trial court ispermanently enjoined from further proceeding against them. In effect, the respondent judge was ordered todismiss the information before him. (Aleado vs. Diokno, supra)

It was a very rare situation. That does not happen every year. It does not happen even in 10 or 20 years! Yanang mga kuyaw where the Court has the power to issue injunction order to stop a case when there is no probablecause. Salonga yata yan!

SPACE-FILLER #2:

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Investigation

A recently graduated lawyer wanted to make everyone believe that hewas in great demand, so he ordered his secretary to keep clients waiting fora long time.

A man arrived and asked to see the lawyer, so the secretary did as shewas told. After a while, she showed the man into her bosss office, while the

lawyer pretended to be on the phone handling a delicate situation with animportant client. The lawyer ended the make-believe phone call and hung up.He asked the man: How can I help you?

The man answered: Im here to install the phone line.

Source: Readers Digest, March 2001