Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition <draft copy; pls.

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Rule 112 PRELIMINARY INVESTIGATION

Rule 112 Preliminary Investigation

SECTION 1. Preliminary investigation defined; when required . Preliminary inves i!a i"n is an in#uiry "r $r"%ee&in! " &e ermine '(e (er (ere is su))i%ien !r"un& " en!en&er a 'ell*)"un&e& +elie) (a a %rime (as +een %"mmi e& an& (e res$"n&en is $r"+a+ly !uil y (ere"), an& s("ul& +e (el& )"r rial. E-%e$ as $r"vi&e& in se% i"n . ") (is Rule, a $reliminary inves i!a i"n is re#uire& " +e %"n&u% e& +e)"re (e )ilin! ") a %"m$lian "r in)"rma i"n )"r an "))ense '(ere (e $enal y $res%ri+e& +y la' is a leas )"ur /01 years, '" /21 m"n (s an& "ne /11 &ay 'i ("u re!ar& " (e )ine. /1a1 Alright. We will now go to Preliminary Investigation. This is one of the features of the inquisitorial system of criminal procedure. The government is the boss. The purpose is for determining whether there is probable cause, not guilt or innocence of the accused, because what is probable cause to you may not be probable cause sa akin. That is why you can see the fiscal as a very powerful person in the government. e could say that there is probable case or there is none. !epende kung anong gusto niya. "o, the government through the investigating officer will decide whether there is a case or no case. e will first conduct an investigation and if he believes that there is a probable cause, then he will prepare a resolution recommending to this superior that the respondent be indicted in court. The purpose of preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, e#pense and an#iety of a public trial, and also to protect the state from useless and e#pensive trials. $%arcos vs. &ru', () Phil. *(+ ashim vs. ,oncan, -. Phil. /.(0 Q: Is Preliminary Investigation required in all criminal cases1 A: 2nder the new rules, it is required when the crime for which the respondent is charged carries a penalty of at least four $30 years, two $/0 months, and one $.0 day. Q: What happen if a case is filed in court without preliminary investigation1 &an the accused file a motion to quash the information on the ground of absence of a preliminary investigation1 A: 4f course there is no question that there is a denial of a right. owever, if there is an irregularity, that is not a ground for dismissal. An information cannot be dismissed because there was no preliminary investigation. The procedure is for the court to suspend the proceedings and refer the matter back to the proper officer for preliminary investigation $People vs. 4liveria, (- Phil. 3/-+ People vs. %anlapas, 56.-**7, August /3, .*(/0 Q: Who has the discretion whether to prosecute or not to prosecute1 A8 The public prosecutor. That is why he is a powerful officer. e e#ercises quasi69udicial function because he is the one to determine whether to file a case against you or not. e has the authority to file or the authority to dismiss. Q: &an the discretion of a public prosecutor be controlled1 &an you file a petition for mandamus to compel a public prosecutor to file a case1 A: General Rule: The public prosecutor cannot be compelled by mandamus to prosecute a case because it is discretionary eh: %aybe you can prove grave abuse of discretion. %aybe the probable cause is very, very clear or obvious, then ayaw pa nyang i6file, ayan na: Q: What are the remedies of the offended party if a fiscal refuses to file a case even when there is a sufficient evidence n which action may be taken1 A: There are three $70 possible remedies8 .. e may take up the matter with the "ecretary of the ;ustice who may then take such measures as may be necessary in the interest of 9ustice+ or to his superior officer, the <egional "tate Prosecutor+

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/.

Rule 112 Preliminary Investigation

e may also file with the proper authorities or court criminal or administrative charges against the fiscal. That is what you call prevericacion in the <evised Penal &ode+ 7. e may file a civil action for damages under Article /-, =ew &ivil &ode. There are other cases where the "upreme &ourt $"&0 commented on this aspect about the quasi69udicial power of the public prosecutor. In the case of >2IA4 ?". @I>2A<4A $*3 Phil. .B.)0, the "& said that the prosecution, as an exception, may be compelled by mandamus if he abuses his discretion and refuses to include a person as a co6accused against whom there appears to be at least a prima facie evidence. That is grave abuse of discretion. owever, this e#traordinary writ is available only if the petition shows that he has first e#hausted all remedies in the ordinary course of law such as a motion filed with the trial court for the indictment of the person or persons e#cluded by the prosecutor. SANC2E3 vs. 4EMETRIO5 N"vem+er 6, 1667 2EL48 CThe decision of the prosecutor may be reversed or modified by the "ecretary of ;ustice or in special cases by the President of the Philippines. ,ut even this &ourt cannot order the prosecution 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 part in the initial decision to prosecute him. C CThe possible e#ception is where there is an unmistakable showing of a grave abuse of discretion that will 9ustify 9udicial intrusion into the precincts of the e#ecutive. ,ut in such a case the proper remedy to call for such e#ception is a petition for mandamus, not certiorari or prohibition.D 5etEs go back in the case of TEE2AN8EE 9R. vs. MA4AYAG Mar%( :, 1662 ;ACTS8 ere, &laudio Teehankee, ;r. was originally charged for the crime of frustrated murder for shooting ultman na na6comatose for how many months. In the course of the trial, ultman died. The prosecution sought to change the information from frustrated murder to consummated murder. Teehankee ;r. questioned the new charge for lack of preliminary investigation thereon . There are three $70 questions to be answered here8 ISS5E <18 Was there an amendment of the information or su stitution when the information was changed from frustrated murder to consummated murder1 2EL48 There is an amendment. CThere is an identity of offenses charged in both the original and the amended information Fmurder pa rin:G. What is involved here is not a variance of the nature of different offenses charge, but only a change in the stage of e#ecution of the same offense from frustrated to consummated murder. This being the case, we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended information for murder is proper.D ISS5E <28 What kind of amendment1 @ormal or substantial1 2EL48 @ormal. CAn ob9ective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime F"o it is still murder.G. That the accused committed a felonious act with intent to kill the victim continues to be the prosecutionHs theory. There is no question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder.D "o halimbawa sabihin ng prosecutor8 !"ou shot #ultman who almost died.$ Teehankee ;r.8 !%ala man a&o du'n a( ) was at home asleep($ Alibi ang defense niya ba. =ow, namatay si ultman. Ano man ang depensa mo1 %au man gihapon8 !%ala man a&o du'n($ "o you are not pre9udiced because the same defense available to you is still available to you now.

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Rule 112 Preliminary Investigation

ISS5E <78 Is there a need of a preliminary investigation on the new charge1 2EL4= =o need because you have not changed the crime. If you change the crime or when there is substitution, kailangan ng preliminary investigation. "ince it is only a formal amendment, preliminary investigation is unnecessary. CThe amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. @urthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is not necessary.D SEC. 2. *fficers authori+ed to conduct preliminary investigations . T(e )"ll"'in! may %"n&u% $reliminary inves i!a i"ns= /a1 Pr"vin%ial "r Ci y Pr"se%u "rs an& (eir assis an s> /+1 9u&!es ") (e Muni%i$al Trial C"ur s an& Muni%i$al Cir%ui Trial C"ur s> /%1 Na i"nal an& Re!i"nal S a e Pr"se%u "rs> and /&1 O (er "))i%ers as may +e au ("ri?e& +y la'. T(eir au ("ri y " %"n&u% $reliminary inves i!a i"ns s(all in%lu&e all %rimes %"!ni?a+le +y (e $r"$er %"ur in (eir res$e% ive erri "rial @uris&i% i"ns. /2a1 Q: >oing back to <ule ..B, "ection ., how is a criminal action instituted1 A: <ead "ection ., <ule ..B8 SECTION 1. )nstitution of criminal actions. Criminal a% i"ns s(all +e ins i u e& as )"ll"'s= /a1 ;"r "))enses '(ere a $reliminary inves i!a i"n is re#uire& $ursuan " se% i"n 1 ") Rule 112, +y )ilin! (e %"m$lain 'i ( (e proper officer )"r (e $ur$"se ") %"n&u% in! (e re#uisi e $reliminary inves i!a i"n. Q: Who are those proper officers1 A8 They are the officers authori'ed to conduct preliminary investigation and they are mentioned in "ection /8 .. Provincial, city prosecutors and their assistants+ /. ;udges of the %T&, %&T&+ 7. 4ther officers as may be authori'ed by law to conduct preliminary investigation. An example of !*ther officers as may e authori+ed y law to conduct preliminary investigation$ is the Om+u&sman. In the case of 2I ?". "A=!I>A=,AIA= $7./ "&<A -- FAugust *, .***G0, the 4mbudsman and his deputies are only authori'ed to conduct preliminary investigation of public officers in cases which are falling within the original 9urisdiction of the "andiganbayan $",0."o even if the crime is a violation of the Anti6>raft law, or a crime committed by a public officer in relation to his office, if he is below >rade /-, the proper court is not the ",, but the %T& or <T&. ,efore kasi, the original "& interpretation of the 4mbudsman law as laid down in the first case of !A54"4 ?". !4%I=>4 $=ovember /., .**B0, is that, all crimes committed by public officers should be investigated by the 4mbudsman. 4WA?A<, 4mbudsman !esierto filed a %otion for @urther &larification in the "& in relation to the case of ," where I think the 4mbudsman is trying to convince the "& to change its mind because it is practically making that office a useless office. =ow, "& resolved to consider the same. Therefore the ruling in ," is reversed in a "& resolution $dated %arch /B, /BB. F>.<. .BJ*(J6-BG0 where the "& went back to its original ruling that the 4mbudsman is authori'ed to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the 9urisdiction of the "andiganbayan, but those within the 9urisdiction of the regular courts as well. "o take note of that.

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Rule 112 Preliminary Investigation

SEC. 7. Procedure. T(e $reliminary inves i!a i"n s(all +e %"n&u% e& in (e )"ll"'in! manner= /a1 T(e %"m$lain s(all s a e (e a&&ress ") (e res$"n&en an& s(all +e a%%"m$anie& +y (e a))i&avi s ") (e %"m$lainan an& (is 'i nesses, as 'ell as " (er su$$"r in! &"%umen s " es a+lis( $r"+a+le %ause. T(ey s(all +e in su%( num+er ") %"$ies as (ere are res$"n&en s, $lus '" /21 %"$ies )"r (e "))i%ial )ile. T(e a))i&avi s s(all +e su+s%ri+e& an& s'"rn " +e)"re any $r"se%u "r "r !"vernmen "))i%ial au ("ri?e& " a&minis er "a (, "r, in (eir a+sen%e "r unavaila+ili y, +e)"re a n" ary $u+li%, ea%( ") '("m mus %er i)y (a (e $ers"nally e-amine& (e a))ian s an& (a (e is sa is)ie& (a (ey v"lun arily e-e%u e& an& un&ers ""& (eir a))i&avi s. /+1 Ai (in en /1B1 &ays a) er (e )ilin! ") (e %"m$lain , (e inves i!a in! "))i%er s(all ei (er &ismiss i i) (e )in&s n" !r"un& " %"n inue 'i ( (e inves i!a i"n, "r issue a su+$"ena " (e res$"n&en a a%(in! " i a %"$y ") (e %"m$lain an& i s su$$"r in! a))i&avi s an& &"%umen s. T(e res$"n&en s(all (ave (e ri!( " e-amine (e evi&en%e su+mi e& +y (e %"m$lainan '(i%( (e may n" (ave +een )urnis(e& an& " %"$y (em a (is e-$ense. I) (e evi&en%e is v"lumin"us, (e %"m$lainan may +e re#uire& " s$e%i)y ("se '(i%( (e in en&s " $resen a!ains (e res$"n&en , an& (ese s(all +e ma&e availa+le )"r e-amina i"n "r %"$yin! +y (e res$"n&en a (is e-$ense. O+@e% s as evi&en%e nee& n" +e )urnis(e& a $ar y +u s(all +e ma&e availa+le )"r e-amina i"n, %"$yin!, "r $(" "!ra$(in! a (e e-$ense ") (e re#ues in! $ar y. /%1 Ai (in en /1B1 &ays )r"m re%ei$ ") (e su+$"ena 'i ( (e %"m$lain an& su$$"r in! a))i&avi s an& &"%umen s, (e res$"n&en s(all su+mi (is %"un er*a))i&avi an& (a ") (is 'i nesses an& " (er su$$"r in! &"%umen s relie& u$"n )"r (is &e)ense. T(e %"un er*a))i&avi s s(all +e su+s%ri+e& an& s'"rn " an& %er i)ie& as $r"vi&e& in $ara!ra$( /a1 ") (is se% i"n, 'i ( %"$ies (ere") )urnis(e& +y (im " (e %"m$lainan . T(e res$"n&en s(all n" +e all"'e& " )ile a m" i"n " &ismiss in lieu ") a %"un er*a))i&avi . /&1 I) (e res$"n&en %ann" +e su+$"enae&, "r i) su+$"enae&, &"es n" su+mi %"un er*a))i&avi s 'i (in (e en /1B1 &ay $eri"&, (e inves i!a in! "))i%e s(all res"lve (e %"m$lain +ase& "n (e evi&en%e $resen e& +y (e %"m$lainan . /e1 T(e inves i!a in! "))i%er may se a (earin! i) (ere are )a% s an& issues " +e %lari)ie& )r"m a $ar y "r a 'i ness. T(e $ar ies %an +e $resen a (e (earin! +u 'i ("u (e ri!( " e-amine "r %r"ss*e-amine. T(ey may, ("'ever, su+mi " (e inves i!a in! "))i%er #ues i"ns '(i%( may +e asCe& " (e $ar y "r 'i ness %"n%erne&. T(e (earin! s(all +e (el& 'i (in en /1B1 &ays )r"m su+missi"n ") (e %"un er* a))i&avi s an& " (er &"%umen s "r )r"m (e e-$ira i"n ") (e $eri"& )"r (eir su+missi"n. I s(all +e ermina e& 'i (in )ive /D1 &ays. /)1 Ai (in en /1B1 &ays a) er (e inves i!a i"n, (e inves i!a in! "))i%er s(all &e ermine '(e (er "r n" (ere is su))i%ien !r"un& " ("l& (e res$"n&en )"r rial. /7a1 Q: What is the procedure for Preliminary Investigation1 A: Iou read "ection 7 step by step. Actually itEs a battle of affidavits eh. It is the same as the old rules. Anyway IEll 9ust mention the changes no8 .. In /nd paragraph of FbG CThe respondent shall have the right to e#amine the evidence submitted by the complainant which he may not have been furnished and to copy them at his e#pense.D /. paragraph FcG. What is new here is the last sentence K CThe respondent shall not be allowed to file a motion to dismiss in lieu of a counter6affidavit.D "o you can file your counter6affidavit. !o not file a motion to dismiss+ 7. CFdG If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter6affidavits within the ten $.B0 day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant.D 3. paragraph FeG. What is new is the /nd paragraph, Cthe hearing shall be held within .B daysLD Actually here, tapos na ang affi6affidavits. ,ut if you want to clarify something, you can call the witnesses for clarificatory questioning, pero he has a deadline to do it K .B days.

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In the case of TATA4 vs. SAN4IGANEAYAN 1D6 SCRA .B, %arch /., .*))

Rule 112 Preliminary Investigation

;ACTS8 The preliminary investigation lasted for 7 years. "o Tatad questioned the information. ISS5E <1: Is the .B6day period to issue a resolution mandatory or directory1 2EL48 CThe .B6day period fi#ed by law is merely Cdirectory,D yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter.D "o all of the information filed must be dismissed for violation of the right for speedy trial. ISS5E <28 The government contended that a total lack of preliminary investigation is not a ground for dismissing an information, how come the delay in terminating a preliminary investigation becomes now a ground for dismissal1 2EL48 CIt has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True M but the absence of a preliminary investigation can be corrected by giving the accused such investigation. ,ut an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time.D SANTIAGO vs. GARC2ITORENA 4e%em+er 2, 1667 ;ACTS8 Anti6graft charges were filed against %iriam !efensor6"antiago when she was still the Immigration &ommissioner. "antiago raised this issue $on delay0 because the offense was allegedly committed on or about 4ctober .-, .*)) and the information was filed only on %ay *, .**. or almost 7 years later. The amended information was filed only on !ecember ), .**/ or 3 years later. "o following the -atad ruling they shall be dismissed. 2EL4: CF"antiagoG cannot complain that her constitutional rights to due process were violated by reason of the delay in the termination of the preliminary investigation. -atad v. .andigan ayan, .J* "&<A -B F.*))G is inapplicable to petitionerHs case. In -atad, there indeed was an une#plained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues involved therein. In the case at bench, there was a continuum of the investigatory process but it got snarled because of the comple#ity of the issues involved. C CWe note that F"antiagoG had previously filed two petitions before us involving / criminal cases. Petitioner has not e#plained why she failed to raise the issue of the delay in the preliminary investigation and the filing of the information against her in those petitions. A piece6meal presentation of issues, like the splitting of causes of action, is self6defeating.D "o it is like splitting your causes of action working against you. Iaan: SOCRATES vs. SAN4IGANEAYAN 2D7 SCRA ..7, @ebruary /B, .**( NOTE8 I think "ocrates was a governor of Palawan. e was also facing cases in the "andiganbayan where he invoked the -atad ruling. 2EL4: CIn 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 is palpably clear that the application of the -atad doctrine 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 ambiance and considerations. It can easily be deduced from a complete reading of the ad9udicatory discourse in -atad that the three6year delay was specifically considered vis6a6vis all the facts and circumstances which obtained therein.D

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Rule 112 Preliminary Investigation

"o you 9ust donEt consider the time element. Iou must also consider the facts. Panahon ni %arcos yung kay -atad eh. SERVANTES vs. SAN4IGANEAYAN 7B. SCRA 106, %ay .), .*** NOTE8 The -atad ruling was applied in this case. ;ACTS8 ere, Alpidio "ervantes was charged for violation of "ection 7$e0 of the Anti6>raft law. It took the special prosecutor si# $(0 years from the filing of the initiatory complaint before he decided to file an information for the offense in the "andiganbayan. "ervantes filed a motion to quash for violation of the right to speedy disposition of the case. "pecial prosecutor tried to 9ustify the delay in the resolution of the complaint by stating that no political motivation appears in the prosecution of the case in apparent reference in the case of -atad because in the case of -atad there was political motivation dun eh kaya na6delay. .pecial Prosecutor: C"ervantes here was insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the disposition of the matter.D %eaning, ( years anong ginawa mo1 indi ka man nagreklamo: Iou did not file a motion to hurry up. "o you are estopped. 2EL4: CWe find "ervantesE contention meritorious. e was deprived of his right to speedy disposition of the case, a right guaranteed by the &onstitution. We cannot accept special prosecutorEs ratiocination. It is the duty of the prosecutor to speedily resolve the complaint as mandated by the &onstitution regardless of whether "ervantes did not ob9ect to the delay although the delay was with his acquiescence provided it was not due to causes directly attributable to him.D "o the mere fact that he was not complaining is not a factor. What is the factor is when the delay was caused by him. Iaan: I know a case decided here during the time of former deputy 4mbudsman !elpacio$10 when he was still here in !avao. @or more than 3 years the preliminary investigation has not been terminated. The respondent filed a mandamus direct to the "& to compel the dismissal of his case citing -atad case. With this mandamus, the "& required the 4mbudsman to comment. "o what the 4mbudsman did, pinaspasan niya: "o he came out with a resolution immediately K a resolution to file. Then he answered the "&8 !) already terminated the preliminary investigation in fact there is now a resolution to file. /ured na( -here is no more delay.$ "abi ng ./8 !#indi na puwede yan( i0dismiss mo na($ 5etEs go back to paragraph FbG8 /+1 Ai (in en /1B1 &ays a) er (e )ilin! ") (e %"m$lain , (e inves i!a in! "))i%er s(all ei (er &ismiss i i) (e )in&s n" !r"un& " %"n inue 'i ( (e inves i!a i"n, "r issue a su+$"ena " (e res$"n&en a a%(in! " i a %"$y ") (e %"m$lain an& i s su$$"r in! a))i&avi s an& &"%umen s. T(e res$"n&en s(all (ave (e ri!( " e-amine (e evi&en%e su+mi e& +y (e %"m$lainan '(i%( (e may n" (ave +een )urnis(e& an& " %"$y (em a (is e-$ense. I) (e evi&en%e is v"lumin"us, (e %"m$lainan may +e re#uire& " s$e%i)y ("se '(i%( (e in en&s " $resen a!ains (e res$"n&en , an& (ese s(all +e ma&e availa+le )"r e-amina i"n "r %"$yin! +y (e res$"n&en a (is e-$ense. O+@e% s as evi&en%e nee& n" +e )urnis(e& a $ar y +u s(all +e ma&e availa+le )"r e-amina i"n, %"$yin!, "r $(" "!ra$(in! a (e e-$ense ") (e re#ues in! $ar y. There is no mention that after the counter6affidavit, the complainant can also file a reply6affidavit. There is nothing 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.

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Rule 112 Preliminary Investigation

Q: >oing back to paragraph $b0 when the respondent is subpoenaed, he is supposed to file his counter6 affidavit. Paano kung di siya ma6subpoena or even if subpoenaed he does not submit his counter6affidavit1 A: The investigating officer shall resolve the complaint based on the evidence presented by the complainant. MERCA4O vs. CO5RT O; APPEALS ;uly J, .**J 2EL48 CThe =ew <ules on &riminal Procedure does not require as a condition sine qua non to the validity of the proceedings Fin the preliminary investigationG the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of offenses by hiding themselves or by employing dilatory tactics.N SEC. 0. Resolution of investigating prosecutor and its review . I) (e inves i!a in! $r"se%u "r )in&s %ause " ("l& (e res$"n&en )"r rial, (e s(all $re$are (e res"lu i"n an& in)"rma i"n. 2e s(all %er i)y un&er "a ( in* (e in)"rma i"n (a (e, "r as s("'n +y (e re%"r&, an au ("ri?e& "))i%er, (as $ers"nally e-amine& (e %"m$lainan an& (is 'i nesses> (a (ere is reas"na+le !r"un& " +elieve (a a %rime (as +een %"mmi e& an& (a (e a%%use& is $r"+a+ly !uil y (ere")> (a (e a%%use& 'as in)"rme& ") (e %"m$lain an& ") (e evi&en%e su+mi e& a!ains (im> an& (a (e 'as !iven an "$$"r uni y " su+mi %"n r"ver in! evi&en%e. O (er'ise, (e s(all re%"mmen& (e &ismissal ") (e %"m$lain . Ai (in )ive /D1 &ays )r"m (is res"lu i"n, (e s(all )"r'ar& (e re%"r& ") (e %ase " (e $r"vin%ial "r %i y $r"se%u "r "r %(ie) s a e $r"se%u "r, "r " (e Om+u&sman "r (is &e$u y in %ases ") "))enses %"!ni?a+le +y (e San&i!an+ayan in (e e-er%ise ") i s "ri!inal @uris&i% i"n. T(ey s(all a% "n (e res"lu i"n 'i (in en /1B1 &ays )r"m (eir re%ei$ (ere") an& s(all imme&ia ely in)"rm (e $ar ies ") su%( a% i"n. N" %"m$lain "r in)"rma i"n may +e )ile& "r &ismisse& +y an inves i!a in! $r"se%u "r 'i ("u (e $ri"r 'ri en au ("ri y "r a$$r"val ") (e $r"vin%ial "r %i y $r"se%u "r "r %(ie) s a e $r"se%u "r "r (e Om+u&sman "r (is &e$u y. A(ere (e inves i!a in! $r"se%u "r re%"mmen&s (e &ismissal ") (e %"m$lain +u (is re%"mmen&a i"n is &isa$$r"ve& +y (e $r"vin%ial "r %i y $r"se%u "r "r %(ie) s a e $r"se%u "r "r (e Om+u&sman "r (is &e$u y "n (e !r"un& (a a $r"+a+le %ause e-is s, (e la er may, +y (imsel), )ile (e in)"rma i"n a!ains (e res$"n&en , "r &ire% an" (er assis an $r"se%u "r "r s a e $r"se%u "r " &" s" 'i ("u %"n&u% in! an" (er $reliminary inves i!a i"n. I) u$"n $e i i"n +y a $r"$er $ar y un&er su%( rules as (e 4e$ar men ") 9us i%e may $res%ri+e "r m" u $r"$i", (e Se%re ary ") 9us i%e reverses "r m"&i)ies (e res"lu i"n ") (e $r"vin%ial "r %i y $r"se%u "r "r %(ie) s a e $r"se%u "r, (e s(all &ire% (e $r"se%u "r %"n%erne& ei (er " )ile (e %"rres$"n&in! in)"rma i"n 'i ("u %"n&u% in! an (er $reliminary inves i!a i"n, "r " &ismiss "r m"ve )"r &ismissal ") (e %"m$lain "r in)"rma i"n 'i ( n" i%e " (e $ar ies. T(e same rule s(all a$$ly in $reliminary inves i!a i"ns %"n&u% e& +y (e "))i%ers ") (e O))i%e ") (e Om+u&sman. /0a1 The investigating prosecutor after the preliminary investigation will now issue a resolution to be approved by his superior recommending the filing or dismissal of the case. If he finds probable cause to hold the respondent for trial, he shall prepare the resolution and information and he will certify under oath that he, or as shown by the record, an authori'ed officer, has personally e#amined the complainant and his witnesses that there is a reasonable 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 given opportunity to submit controverting evidence. That is a standard form in the information filed by the prosecutor. Q: "uppose the prosecutor failed to make that certification in the information, is the information valid or defective1

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Rule 112 Preliminary Investigation

A: It is still ?A5I!. C=otwithstanding the absence in the information of a certification as to the holding of a preliminary investigation, the information is nonetheless considered valid for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such.D 1Alvi+o vs. .andigan ayan, //B "&<A 3J0 Q: After that, what will he do1 To whom will he forward his resolution1 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 appealable1 A: IA". It is appealable to the "ecretary of ;ustice. The last paragraph of "ection 3 gives the power of review to the !epartment of ;ustice K that is, if the case originally started in the @iscalEs office. The !4; can reverse or modify resolution of a city or provincial prosecutor and the procedure for review is governed not by the <ules of &ourt, but by a department order. There is also a procedure there for appeal or review by the !4; $/BBB !4; <ules on Appeal, ;uly 7, /BBB0. 4ne of the cases we have to remember here is the leading case of /R2.P* 3.. 4*G,5, $;une 7B, .*)-0. ere are some points discussed in this case8 Q: What happens if the !4; sustains the appeal1 A: It will reverse the resolution of the prosecutor. 2xample8 P<4"A&2T4<8 C!ismiss: The case should not be filed.D !4;8 C<eversed: Iou file the case.D Walang magawa ang fiscal diyan. e must file the case because that is the order of his superior. What if8

2xample8 P<4"A&2T4<8 CThere is probable cause. I will file the case.D <A"P4=!A=TOA&&2"A!8 CAppeal:D !4;8 CI will reverse. Iou are hereby ordered not to file.D Q: A kung na6file na1 A: 2nder 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 !4; order is Cto file.D Ang mahirap is if the resolution of the fiscal is to file and na6file na, and then sabi ng !4;, !ah walang pro a le cause 6 do not file($ Prosecutor8 !2h7 na0file na8$ !4;8 !*&ey7 you move to dismiss the case.$ "o the fiscal will file a motion to dismiss. is argument will be, there is no probable cause according to !4; K my superior and the "ecretary of ;ustice has ordered me to move for the dismissal of the case. Ah kung sabihin ng court8 &42<T8 CAyoko: Tuloy ang kaso:D Fay naloko na::G @I"&A58 C"orry Iour onor but that is the order of my superior. I cannot go against the !4;.D &42<T8 C"uperior mo, hindi akin: It is not my superior: Ituloy ang kaso: Iaan:: That was the issue in the case of /R2.P*. And the "& ruled that8 CRESPO vs. MOG5L 9une 7B, 16F.

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Rule 112 Preliminary Investigation

2EL48 The power of the fiscal is practically absolute whether to file or not to file. ,ut once the case is filed in court, the power now belongs to the 9udge and he is the one who will determine whether to proceed or not to proceed. The court will be the one to decide because control over the case is already shifted in the court. The court now has the absolute power and once the court tell the fiscal 9you proceed,E then the fiscal has to proceed. The latter should not shirk from his responsibility of representing the People of the Philippines. "o the absolute power of the fiscal ends upon the filing of the case in court. CAs an advise Fadvise lang, hindi naman orderG, that in order to avoid this unpleasant situation where the opinion o the "ecretary of ;ustice is not to proceed but the opinion of the 9udge is to proceed, and the fiscal is caught in the middle Fnaipit ba:G, when the case is already filed in court, as much as possible huwag ka $!4;0 ng makialam. The "ecretary of ;ustice as much as possible, should not review the resolution of the fiscal to file when the case is already filed in court to avoid this unpleasant situation because it will really cause a conflict of opinion between the two $/0 offices.D There are other cases where the "& elaborated on this but the leading case is /R2.P*. I will 9ust cite to you some of these cases where the "& had something to comment about this issue as we have no more time to go over them one by one8 .. /. 7. 3. J. (. <AP2,5I& ?". "2=>A $.(/ "&<A .*.0+ %A<&A54 ?". &A $/7J "&<A 7*0+ PA4P5A ?". &<2PA $/7- "&<A 3.B0+ %A<TI=AP ?". &A $/7- "&<A J-J0+ %4"Q2A<A ?". PA=>A=I,A= $/J) "&<A 3-70+ 5A!A"%A ?". &A, /-) "&<A (J) $"eptember J, .**-0.

And based on some of these cases in relation to reinvestigation, the "& held that once the case is already in court and the accused would like to have his case reinvestigated, the court must agree. There must always be the concern of the court because of the absolute control is already in the court once the case is filed. And take note that there is no double 9eopardy in preliminary investigation. SEC. D. Resolution of investigating :udge and its review . Ai (in en /1B1 &ays a) er (e $reliminary inves i!a i"n, (e inves i!a in! @u&!e s(all ransmi (e res"lu i"n ") (e %ase " (e $r"vin%ial "r %i y $r"se%u "r, "r " (e Om+u&sman "r (is &e$u y in%ases ") "))enses %"!ni?a+le +y (e San&i!an+ayan in (e e-er%ise ") i s "ri!inal @uris&i% i"n, )"r a$$r"$ria e a% i"n. T(e res"lu i"n s(all s a e (e )in&in!s ") )a% s an& (e la' su$$"r in! (is a% i"n, "!e (er 'i ( (e re%"r& ") (e %ase '(i%( s(all in%lu&e= /a1 (e 'arran , i) (e arres is +y vir ue ") a 'arran > /+1 (e a))i&avi s, %"un er*a))i&avi s an& " (er su$$"r in! evi&en%e ") (e $ar ies> /%1 (e un&er aCin! "r +ail ") (e a%%use& an& (e "r&er )"r (is release> /&1 (e rans%ri$ s ") (e $r"%ee&in!s &urin! (e $reliminary inves i!a i"n> an& /e1 (e "r&er ") %an%ella i"n ") (is +ail +"n&, i) (e res"lu i"n is )"r (e &ismissal ") (e %"m$lain . Ai (in (ir y /7B1 &ays )r"m re%ei$ ") (e re%"r&s, (e $r"vin%ial "r %i y $r"se%u "r, "r (e Om+u&sman "r (is &e$u y, as (e %ase may +e, s(all revie' (e res"lu i"n ") (e inves i!a in! @u&!e "n (e e-is en%e ") $r"+a+le %ause. T(eir rulin! s(all e-$ressly an& %learly s a e (e )a% s an& (e la' "n '(i%( i is +ase& an& (e $ar ies s(all +e )urnis(e& 'i ( %"$ies (ere"). T(ey s(all "r&er (e release ") an a%%use& '(" is &e aine& i) n" $r"+a+le %ause is )"un& a!ains (im. /Da1 "ection J applies to preliminary investigations conducted by %T& 9udges. <emember, aside from fiscal, %T& 9udges are also allowed to conduct preliminary investigations. ,ut in %etro %anila and chartered cities, %T&& 9udges do not conduct preliminary investigations K everything is given to the state prosecutor. What happens if the 9udge or the %T& 9udge will conduct a preliminary investigation1 The 9udge will conduct a preliminary investigation. Ang kanya, there is a probable cause or there is no probable cause, either way he must forward his resolution to the provincial prosecutor. The provincial prosecutor will be the one to decide.

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Rule 112 Preliminary Investigation

Q: !o you mean to tell me the provincial prosecutor will conduct again another preliminary investigation1 A: =4. e will 9ust review the findings of the 9udge. %aybe the provincial fiscal will simply adop the finding of the %T& 9udge. Q: "uppose sabi ng fiscal, C!i ako kuntento. I am not satisfied with the preliminary investigation by that 9udge. I will conduct another preliminary investigationD Puwede ba yan1 A: IA". The provincial prosecutor has .BBR control. e may adopt the finding and 9ust follow the recommendation filed, or he may conduct his own preliminary investigation. Q: What happens if his decision is different from what the %T& 9udge believes1 Whose decision will prevail1 A: @iscalEs decision will prevail. e can reverse the resolution of the %T& 9udge. And in case the respondent has been arrested while the case is under preliminary investigation and detained in 9ail, according to "ection J, last paragraph, last sentence, the provincial fiscal shall order the release of an accused who is detained if no probable cause is found against him. This is one instance where the opinion of the provincial prosecutor prevails over that of the 9udge. The fiscal can reverse the findings of the 9udge eh. Q: ,akit naman ganun1 Why are we giving the provincial fiscal more power than the %T& 9udge when it comes to preliminary investigation1 A: The reason is simple8 who will prosecute the case K the 9udge or the fiscal1 4f course, it is the fiscal. e will be the one to handle the case and not the 9udge. Another reason is given by the "& in one case that actually, preliminary investigation is not really the function of the 9udiciary. The power to determine whether to file or not file does not belong to the 9udiciary. CWhen a preliminary investigation is conducted by a 9udge, the 9udge performs a non69udicial function, as an e#ception to his usual 9udicial duties. The assignment of that function to 9udges of inferior courts and to a very limited e#tent to courts of first instance was dictated by necessity and practical considerations. &onsequently, the findings of an investigating 9udge are sub9ect to review by the provincial fiscal.D $ /astillo vs. 3illalu+, %arch ), .*)*0 Alright. 5etEs go to "ection ( K a very important provision K when warrant of arrest may be issued. SEC. :. %hen warrant of arrest may issue . /a1 By the Regional Trial Court. Ai (in en /1B1 &ays )r"m (e )ilin! ") (e %"m$lain "r in)"rma i"n, (e @u&!e s(all $ers"nally evalua e (e res"lu i"n ") (e $r"se%u "r an& i s su$$"r in! evi&en%e. 2e may imme&ia ely &ismiss (e %ase i) (e evi&en%e "n re%"r& %learly )ails " es a+lis( $r"+a+le %ause. I) (e )in&s $r"+a+le %ause, (e s(all issue a 'arran ") arres , "r a %"mmi men "r&er i) (e a%%use& (as alrea&y +een arres e& $ursuan " a 'arran issue& +y (e @u&!e '(" %"n&u% e& (e $reliminary inves i!a i"n "r '(en (e %"m$lain "r in)"rma i"n 'as )ile& $ursuan " se% i"n . ") (is Rule. In%ase ") &"u+ "n (e e-is en%e ") $r"+a+le %ause, (e @u&!e may "r&er (e $r"se%u "r " $resen a&&i i"nal evi&en%e 'i (in )ive /D1 &ays )r"m n" i%e an& (e issue mus +e res"lve& +y (e %"ur 'i (in (ir y /7B1 &ays )r"m (e )ilin! ") (e %"m$lain ") in)"rma i"n. -----5et us picture what happens here. The case is triable by the <T& K so this means, ( years and . day up. =ow, the fiscal conducts a preliminary investigation. Assuming after finding probable cause, he will file information. After that, what will happen1 The 9udge may issue a warrant of arrest to arrest the accused because in his opinion, there is probable cause to issue the warrant of arrest. "o that is the situation. "o you will notice that this word K C pro a le cause$ 6 has many functions. When the fiscal file the information, he believes that there was pro a le cause K pro a le cause to file the case. Pagdating sa court, the <T& 9udge will present pro a le cause na naman to issue warrant of arrest. Iba yan eh: Sanya6kanya yan K pro a le cause to file, pro a le cause to issue warrant. That is why in the case of

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CASTILLO vs. VILLAL53 Mar%( F, 16F6

Rule 112 Preliminary Investigation

2EL48 CThe fiscal prevails over the 9udge only in the determination of the e#istence of a probable cause 9ustify the filing of a complaint or information. This task is concededly e#ecutive. ,ut the determination of probable cause to 9ustify the issuance of a search warrant or a warrant of arrest is the constitutional prerogative of the 9udge and may not be withdrawn from him or even only limited by statute or the <ules of &ourt. This task is undoubtedly 9udicial.D CThe findings of the fiscal in the preliminary investigation do not control or foreclose the e#ercise of the power conferred personally on the 9udge under "ection / of the ,ill of <ights. That power is his alone.D Q: =ow, under the &onstitution, before the <T& 9udge issued the warrant of arrest because of probable cause, anong dapat gawin niya1 A: e must personally examine the complainant and his witnesses to determine whether there is probable cause to issue or not to issue a warrant of arrest. ow do you interpret the phrase, Cpersonally e#amineD1 I have to admit that the cases before were somehow confusing. There were some case na literal K pag6file mo ng kaso, the <T& 9udge has to call the complainants, tanongL tanongL tanongL to determine the probable cause to issue a warrant. 4therwise if I will not e#amine them, it is unconstitutional for to issue a warrant. 4r in another case, <T& 9udge8 Tsabi ng fiscal, may probable cause to file eh. Tama na yon: I believe him. I will now issue the warrant.E ,ut there are some cases that say na hindi puwede yan because you are giving now to the fiscal the right to determine your duty under the &onstitution. Iou cannot do that because the law says you must personally examine. 4therwise, the fiscal is the one who is determining. ,ut meron namang mga kaso where the "& said that if we will require the <T& 9udge to personally e#amine the complainant and his witnesses to determine probable cause before issuing the warrant, he might have no more or nothing to do more e#cept to do that. e cannot anymore try cases, wala na, puro na lang probable cause. "o he may not have time anymore to do his usual duty. Thus he can rely on the findings of the fiscal. "o this really cause some kind of confusion. =ow, these confusions are now reconciled. There are many cases such as R*;2R-. 3.. /A $the P2P.)0/*5A !<=>$ tansan case0. ,ut the first one the "& really discussed the issue e#haustively was the .**. case of LIM, SR. vs. ;ELIG 160 SCRA 262 H1661I ;ACTS8 The information was filed K information lang and a certification by the fiscal that based on the investigation, there is probable cause. And on the basis of that information certification, the 9udge issued a warrant of arrest. ISS5E8 %ay a ;udge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause e#ists issue a warrant of arrest1 2EL48 In order to clarify this rule once and for all, the "& went over all the cases where this issue kept coming back, starting from8 2" ?". 4&A%P4 $.) Phil.0+ A%A<>A ?". A,,A" $*) Phil.0+ P5A&A< ?". ?I55A=2A?A $./( "&<A 3(70+ "25TA ?". &A $.37 "&<A //)0+ "45I?A= ?". %ASA"IA< $.(- "&<A 7*70+ &A"TI554 ?". ?I55A52P $.-. "&<A 7*0+ PA4P5A ?". I=TI=> $.)"&<A -*)0+ to PA4P5A ?". !A5>A!4 $.)* "&<A -/J0. This is the dilemma8 Cif a ;udge has to personally question each complainant and witness or go over the records of the ProsecutorHs investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he may have no more time for his or her more important 9udicial functions. At the same time, the ;udge cannot ignore the clear words of

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Rule 112 Preliminary Investigation

the .*)- &onstitution which requires pro a le cause to e personally determined y the :udge , not by any other officer or person.D CIf a ;udge relies solely on the certification of the Prosecutor, he has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied.D CThe ;udge does not have to personally e#amine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. owever, there should be a report and necessary documents supporting the @iscalHs bare certification. All of these should be before the 9udge. The 9udge must go beyond the ProsecutorHs certification and investigation report whenever necessary. e should call for the complainant and witnesses themselves to answer the courtHs probing questions when the circumstances of the case so require.D CWe reiterate that in making the required personal determination, a 9udge is not precluded from relying on the evidence earlier gathered by responsible officers. The e#tent of the reliance depends on the circumstances of each case and is sub9ect to the 9udgeHs sound discretion. owever, $as happened in the case of 5im? the 9udge abuses that discretion when having no evidence before him, he issues a warrant of arrest.D ow did the "& reconcile that1 When the fiscal files an information, the 9udge will require the fiscal to attach to the information all the records of the preliminary investigations K affidavits, counter6affidavits, or other whatever documents. All the evidence will be submitted to the 9udge and he will review them. After reading them, if the 9udge is not satisfied that there was probable cause, he may summon the witnesses. ;,- if he is satisfied, he can issue the warrant without the need for summoning the witnesses. e can rely on the affidavits. That is what personally examined means. ROEERTS vs. CO5RT O; APPEALS Mar%( D, 166: ;ACTS= This is the Pepsi0/ola <=> tansan case. Pag6file ng fiscal, marami, makapal ang documents. The records of the case is voluminous. %araming nanalo ng <=> nuEn eh. "o pag6file, after /B minutes the 9udge issued the warrant of arrest. The accused challenged it8 A&&2"A!8 Iou did not determine probable cause. ;2!>A8 ,akit1 All the supporting documents are attached in the information. A&&2"A!8 Ies, but how can you go over them in less than /B minutes1 Iou did not go over them. Ibig sabihin binasa mo lahat yan within /B minutes only1 "o it is now doubtful that the 9udge will go over the entire records within /B minutes. Ang kapal ng records eh: 2EL4= "abi ng "&8 CAh kung mabilis pala mag6basa ang 9udge1 @Ano'ng pa&ialam mo8 #a(A Ang importante nandoon ang records: =ow, these issues were further supplemented by other cases in .**-. The leading case is 2O vs. PEOPLE O; T2E P2ILIPPINES 2FB SCRA 7:D, 4ctober *, .**ISS5E8 Is it required that everything that was filed in the fiscalEs office will really be included1 5ahat ba talaga1 Ah kung makapal1 2EL4= JIt is =4T required that the complete or entire records of the case during the preliminary investigation be submitted to and e#amined by the 9udge. We do not intend to unduly burden trial courts by obliging them to e#amine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the 9udge must have sufficient supporting documents $such as the complaint, affidavits, counter6affidavits, sworn

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Rule 112 Preliminary Investigation

statements of witnesses or transcripts of stenographic notes, if any0 upon which to make his independent 9udgment or, at the very least, upon which to verify the findings of the prosecutor as to the e#istence of probable cause. The point is8 he cannot rely solely and entirely on the prosecutorEs recommendation.D >oing back to "ection ( $a08 /a1 By the Regional Trial Court. Ai (in en /1B1 &ays )r"m (e )ilin! ") (e %"m$lain "r in)"rma i"n, (e @u&!e s(all $ers"nally evalua e (e res"lu i"n ") (e $r"se%u "r an& i s su$$"r in! evi&en%e. HT(is is a ne' sen en%e=I2e may imme&ia ely &ismiss (e %ase i) (e evi&en%e "n re%"r& %learly )ails " es a+lis( $r"+a+le %ause. I) (e )in&s $r"+a+le %ause, (e s(all issue a 'arran ") arres , "r a %"mmi men "r&er i) (e a%%use& (as alrea&y +een arres e& $ursuan " a 'arran issue& +y (e @u&!e '(" %"n&u% e& (e $reliminary inves i!a i"n "r '(en (e %"m$lain "r in)"rma i"n 'as )ile& $ursuan " se% i"n . ") (is Rule. HT(e las sen en%e is als" ne'=IIn %ase ") &"u+ "n (e e-is en%e ") $r"+a+le %ause, (e @u&!e may "r&er (e $r"se%u "r " $resen a&&i i"nal evi&en%e 'i (in )ive /D1 &ays )r"m n" i%e an& (e issue mus +e res"lve& +y (e %"ur 'i (in (ir y /7B1 &ays )r"m (e )ilin! ") (e %"m$lain ") in)"rma i"n. This brings to my mind one of the leading cases on this issue which was asked in the ,ar and which I also asked in some e#aminations here. The case of AMARGA vs. ;ISCAL 6F P(il. .76 ;ACTS= The provincial fiscal filed an information in the &@I $now, <T&0. =ormally, the 9udge will issue the warrant. =ag6alanganin naman ang 9udge. What the 9udge did was to issue an order requiring the fiscal to appear before him and convince him that there is probable cause for the 9udge to issue warrant. Ah ayaw ng fiscal, C%y golly: That is already an insult for me as a quasi69udicial officer: I found probable cause. That is my finding. The 9udge should believe me because that is my prerogative.D "o ayaw mag6sunod ng fiscal. ;udge, CAyaw mo ha: 4key: &ase is dismissed:D <emember, there are two $/0 questions there asked in the bar8 ISS5E <1= !oes the court have the power to require the fiscal to present evidence to convince the 9udge that there is probable cause to issue the warrant of arrest when the fiscal already found probable cause to file the case1 2EL4= IA". The power of the fiscal is to determine probable cause to file while for the 9udge is probable cause to issue the warrant of arrest. Iba yung iyo, iba rin yung sa akin: Iou cannot say that simply because you found probable cause, I will follow you. FWe already discussed that principle and it is already stated in the rulesG "o, it will be the power of the 9udge to inform the prosecutor and to require the fiscal to convince him that there is probable cause to issue the warrant. $now last sentence of "ection ( FaG0 ISS5E <1= "ince the fiscal refuses to comply, did the 9udge act correctly in ordering the dismissal of the information1 2EL4= =4. This time mali ang 9udge. If the fiscal does not want to comply with the 9udgeEs order, the remedy of the 9udge is not to issue the warrant. Ayaw mong sumunod1 K then do not issue the warrant. ,ut do not dismiss the case because this time we are already encroaching the power of the prosecutor. $c.f. second sentence of "ection ( FaG0 =ow, based on the present rules, we will now ask the same questions today.

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Rule 112 Preliminary Investigation

Q: &an the 9udge require the fiscal to present evidence of probable cause in convincing him to issue the warrant of arrest1 A: IA". That is the prerogative of the 9udge. 1A4ARGA 3.. A;;A.? Q: If fiscal refuses, has the 9udge the power to dismiss the case1 A: In the case of Amarga, no. owever, under "ection (, the 9udge may immediately dismiss the case if the evidence on record clearly fails to esta lish pro a le cause. That is a new sentence, !xxx he may immediately dismiss the case xxx$ not found in the prior rule. To my mind, that has change the answer. While before, the 9udge may not have the power to dismiss the case if he finds no probable cause. <ight now, the rules says IA" because of that new provision, Che may immediately dismiss the case if the evidence on record clearly fails to establish probable causeD even if the fiscal has already found probable cause. In other words, this has changed the ruling in the old case of Amarga. 5etEs go to "ection ( FbG8 $Preliminary Investigation conducted by %T& 9udge0 /+1 ;y the 4unicipal -rial /ourt . A(en re#uire& $ursuan " (e se%"n& $ara!ra$( ") se% i"n ") (is Rule, (e $reliminary inves i!a i"n ") %ases )allin! un&er (e "ri!inal @uris&i% i"n ") (e Me r"$"li an Trial C"ur , Muni%i$al Trial C"ur in Ci ies, Muni%i$al Trial C"ur , "r Muni%i$al Cir%ui Trial C"ur may +e %"n&u% e& +y ei (er (e @u&!e "r (e $r"se%u "r. A(en %"n&u% e& +y (e $r"se%u "r, (e $r"%e&ure )"r (e issuan%e ") a 'arran ") arres +y (e @u&!e s(all +e !"verne& +y $ara!ra$( /a1 ") (is se% i"n. A(en (e inves i!a i"n is %"n&u% e& +y (e @u&!e (imsel), (e s(all )"ll"' (e $r"%e&ure $r"vi&e& in se% i"n 7 ") (is Rule. I) (is )in&in!s an& re%"mmen&a i"ns are a))irme& +y (e $r"vin%ial "r %i y $r"se%u "r, "r +y (e Om+u&sman "r (is &e$u y, an& (e %"rres$"n&in! in)"rma i"n is )ile&, (e s(all issue a 'arran ") arres . 2"'ever, 'i ("u 'ai in! )"r (e %"n%lusi"n ") (e inves i!a i"n, (e @u&!e may issue a 'arran ") arres i) (e )in&s a) er an e-amina i"n in 'ri in! an& un&er "a ( ") (e %"m$lainan an& (is 'i nesses in (e )"rm ") sear%(in! #ues i"ns an& ans'ers, (a a $r"+a+le %ause e-is s an& (a (ere is a ne%essi y ") $la%in! (e res$"n&en un&er imme&ia e %us "&y in "r&er n" " )rus ra e (e en&s ") @us i%e. 4bviously, this rule does not apply in chartered cities but in municipalities. "a probinsiya, for e#ample, the case is murder. That is not triable by %T& but you can file the complaint for murder before the %T& not for the purpose of trial but for the purpose of preliminary investigation. That is the difference. We already learned that he resolution of the 9udge, whether to file or not to file, is ipasa niya sa Provincial Prosecutor who has the final say. ThatEs why the rule says, if his findings and recommendations are affirmed by the provincial or city prosecutor, or by the 4mbudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. owever, without waiting for the conclusion of the investigation, the 9udge may issue a warrant of arrest if he finds after an e#amination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause e#ists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of 9ustice. 5etEs compare. Q: !oes the fiscal have the power to issue warrant of arrest1 A: =4. is power is to conduct preliminary investigation and if there is probable cause K @ile: Q: Who will issue the warrant1 A: <T&. Pero ang municipal 9udge, iba eh. The police will file a complaint for homicide in %T& for preliminary investigation. Pag6basa ng %T& 9udge, !a a( Gra e ito( -here is pro a le cause. Pero te&a muna7 deli&ado ito a&a ma&awala 6 arrest him($ "o even before the case is filed in the <T&, the %T& 9udge has the power to issue warrant of arrest.

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Rule 112 Preliminary Investigation

That is the difference between the power of the %T& 9udge and the power of the Provincial Prosecutor. ,oth of them have the power to conduct a preliminary investigation in the province. ,ut the fiscal has no power to issue a warrant but the 9udge has the power to issue warrant even while the preliminary investigation is going on. That is why in the province, complainants prefer to file sa %T& para issue dayun ang warrant. The issuance of warrant by the %T& 9udge is ex parte. e will 9ust determine it based on the affidavit of the complainant and his witnesses after searching questions and answers. "o the e#amination conducted by the 9udge is literal in meaning. And once you are arrested, tuloy tayo. Iou now follow preliminary investigation. Iou submit now your counter6affidavits. @or what purpose1 We will determine whether the case will be filed in the <T& or not. "o there are two $/0 stages8 .. first stage K Preliminary A#amination K to determine whether or not to issue a warrant of arrest. This is done ex parte. /. second stage K Preliminary Investigation proper 6 to determine, after you are arrested, whether or not you will be indicted in the <T&. Q: Is it mandatory that every time you file a case in the %T&, the 9udge will always issue a warrant or arrest1 A: =4. indi naman sinabi yun because in order to determine whether a warrant of arrest will be issued, the 9udge will conduct the e#amination. e will e#amine in writing under oath of the complainant and witnesses in the form of searching questions and answers, that a probable cause e#ists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of 9ustice. "o if you file a case for homicide against somebody in the municipality+ tao na kilala mo+ mayaman at may malalaking properties+ if IEm the 9udge, I will not issue a warrant of arrest. Tatakbo ba yan1 I donEt think so. I may or may not issue the warrant but my criterion is8 is there a necessity of placing him under immediate custody in order not to frustrate the end of 9ustice1 ,ut suppose the accused has no permanent address, ayan: !elikado na yan, baka makawala: I will now issue a warrant of arrest. =ow, what has changed the picture now is this8 there is no question if the case is triable by the <T&, the %T& 9udge will conduct a preliminary investigation in order to determine whether or not the case should be filed in the <T&. Q: ,ut now, when is the preliminary investigation required1 A: When the crime is punishable by 3 years, / months and . day and up. Q: The case has a ma#imum penalty of ( years K therefore triable by the %T&. Is the %T& 9udge required to conduct a preliminary investigation1 A: IA". %andated man yan ba: Although it is triable by the %T&, it is still mandatory for the %T& 9udge to conduct preliminary investigation because any crime which carries the penalty of 3 years, / months and . day or up, is sub9ect to preliminary investigation. Q: In this case, who will conduct the preliminary investigation1 The fiscal or the %T& 9udge1 A: Aither one of them. 5et us read the opening paragraph of "ection ( $b08 /+1 ;y the 4unicipal -rial /ourt . A(en re#uire& $ursuan " (e se%"n& $ara!ra$( ") se% i"n ") (is Rule, (e $reliminary inves i!a i"n ") %ases )allin! un&er (e "ri!inal @uris&i% i"n ") (e Me r"$"li an Trial C"ur , Muni%i$al Trial C"ur in Ci ies, Muni%i$al Trial C"ur , "r Muni%i$al Cir%ui Trial C"ur may +e %"n&u% e& +y ei (er (e @u&!e "r (e $r"se%u "r. ,ut I was wondering with this issue. This happens in places where there is only . branch, . 9udge. @or e#ample, ako ang 9udge and the case is filed before me K preliminary investigation ito ha: K 3 years, / months and . day. There is a probable cause so I will continue. =ow, who will try the case1 Ako rin di ba1 "abihin ng

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Rule 112 Preliminary Investigation

defense, !Ah wala na. -alo na &ami. ;ias &a na eh($ =aloko na: This might be a ground for disqualification eh because you already found probable cause, chances are dire6diretso na ito K you will convict me, you are no longer impartial. This is now the danger because of this new provision. "uppose sabihin ng 9udge, C indi man. I found probable cause only for the case to proceed to trial but for all you know during the trial, I might find you innocent, not guilty beyond reasonable doubt. Ang criterion ko diyan is probable cause man lang K probably you are guilty. ,ut when I will try it, it should be guilt beyond reasonable doubt.D Ian ang delikado dito: %abuti sana if the fiscal was the one who conducted the preliminary investigation. ,ut when I am the one who conducted the preliminary investigation and then I will also be one to try the case, there might be complaints of biases or pre9udgment. "o there are provisions in the new rules which might create practical problems. 5etEs go to the last portion of "ection (. 5etEs read "ection ( FcG8 /%1 %hen warrant of arrest not necessary. A 'arran ") arres s(all n" issue i) (e a%%use& is alrea&y un&er &e en i"n $ursuan " a 'arran issue& +y (e muni%i$al rial %"ur in a%%"r&an%e 'i ( $ara!ra$( /+1 ") (is se% i"n, "r i) (e %"m$lain "r in)"rma i"n 'as )ile& $ursuan " se% i"n . ") (is Rule "r is )"r an "))ense $enali?e& +y )ine "nly. T(e %"ur s(all (em $r"%ee& in (e e-er%ise ") i s "ri!inal @uris&i% i"n. /:a1 =ormally, when the information is filed in court, the court issues a warrant of arrest. instances when the court need not issue a warrant of arrest. Q: What are the instances when the court need not issue a warrant of arrest1 A: 2nder "ection ( FcG, the following are the instances8 .. if the accused is already under detention pursuant to a warrant issued by the %T& in accordance with paragraph FbG of "ection (. If the %T& issues the warrant of arrest and later on the cases reaches the <T& because there is probable cause, there is no need for the <T& to issue another warrant because there is already a warrant issued by the %T&. And as a matter of fact, the accused has already been detained+ /. when the complaint or information is filed pursuant to "ection - of this rule. "ection - K the accused is arrested for committing a crime in the presence of a peace officer, the fiscal will only conduct an inquest preliminary investigation and there is no need to issue a warrant because the accused is also under detention already. =ormally, what the court there issues is a commitment order, 9ust to confirm the detention of the accused+ and 7. if the accused is charged for an offense penali'ed by fine only K di na kailangan ang warrant of arrest. There are crimes where there is no penalty for imprisonment but only fine like damage to property through reckless imprudence. ,ased on the new rules, there is no need for a warrant, 9ust an order to appear is sufficient. SEC .. %hen accused lawfully arrested without warrant . A(en a $ers"n is la')ully arres e& 'i ("u a 'arran inv"lvin! an "))ense '(i%( re#uires a $reliminary inves i!a i"n, (e %"m$lain "r in)"rma i"n may +e )ile& +y a $r"se%u "r 'i ("u nee& ") su%( inves i!a i"n $r"vi&e& an in#ues (as +een %"n&u% e& in a%%"r&an%e 'i ( e-is in! rules. In (e a+sen%e "r unavaila+ili y ") an in#ues $r"se%u "r, (e %"m$lain may +e )ile& +y (e "))en&e& $ar y "r a $ea%e "))i%er &ire% ly 'i ( (e $r"$er %"ur "n (e +asis ") (e a))i&avi ") (e "))en&e& $ar y "r arres in! "))i%er "r $ers"n. Ee)"re (e %"m$lain "r in)"rma i"n is )ile&, (e $ers"n arres e& may asC )"r a $reliminary inves i!a i"n in a%%"r&an%e 'i ( (is Rule, +u (e mus si!n a 'aiver ") (e $r"visi"n ") Ar i%le 12D ") (e Revise& Penal C"&e, as amen&e&, in (e $resen%e ") (is %"unsel. N" 'i (s an&in! (e 'aiver, (e may a$$ly )"r +ail an& (e inves i!a i"n mus +e ermina e& 'i (in )i) een /1D1 &ays )r"m i s in%e$ i"n. owever, there are

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Rule 112 Preliminary Investigation

A) er (e )ilin! ") (e %"m$lain "r in)"rma i"n in %"ur 'i ("u a $reliminary inves i!a i"n, (e a%%use& may, 'i (in )ive /D1 &ays )r"m (e ime (e learns ") i s )ilin!, asC )"r a $reliminary inves i!a i"n 'i ( (e same ri!( " a&&u%e evi&en%e in (is &e)ense as $r"vi&e& in (is Rule. /.a> se%. 2, R.A. N". .07F1 "ection - is another important provision. This is called I=Q2A"T P<A5I%I=A<I I=?A"TI>ATI4=, related to <ule ..7, "ection J FaG and FbG on warrantless arrest. ere, there is no need for preliminary investigation because there is a deadline for the accused to be detained. 4therwise the peace officer will be guilty of arbitrary detention K delay in the delivery. If we will conduct a preliminary investigation, that will last for many days. "o what will happen to a person who committed a crime if we will conduct a regular preliminary investigation1 Well, to avoid this possibility, wala ng preliminary investigation. The prosecutor will conduct an I=Q2A"T preliminary investigation based only on the affidavit of the complainant, the police maybe, and his witnesses so that the court may issue a commitment order. With that, the deadline has been met K you have been delivered to the proper 9udicial authorities. =ow, there is a new sentence inserted in "ection -, first paragraph K !)n the a sence or unavaila ility of an inquest prosecutor7 the complaint may e filed y the offended party or a peace officer directly with the proper court.$ K a very radical provision. The normal procedure is8 for e#ample, the offended party or the peace officer will file the case before the fiscal to inquest preliminary investigation. And then the fiscal will now file the information in court letEs say in the <T&. Q8 owever, suppose there is no inquest prosecutor1 4r there is an inquest prosecutor but he is not available, what will happen now to the case1 A8 The new provision says, Cthe complaint may be filed by the offended party or a peace officer directly with the proper courtD so that the accused should be delivered. Why is this a very radical change1 There is no problem with the %T& because you can file directly in the %T&. ,ut as a matter of practice, you cannot file a complaint directly with the <T&. Averything here is done by information. The <T& does not entertain complaints filed by the police or the offended party. ,ut now, puwede na eh, under this situation lang8 K $.0 the accused is arrested without a warrant and $/0 there is the absence or unavailability of an inquest prosecutor. With that situations, the new rules now allow a direct filing of the complaint by the offended party or the peace officer directly with the proper court even in the <T&. That is why this is radical change. =ow, whether this is the one or the other, you cannot deny the fact that the accused is entitled to a preliminary investigation. Iou cannot deprive him of this right. When there is a case filed in court without preliminary investigation so that he can be detained indefinitely in which case, he can ask for a preliminary investigation in accordance with this rule K but after the case is filed. ,aliktad: =ormally, the preliminary investigation comes before the filing of the case. !ito naman, filing comes before preliminary investigation K baliktad: !uring preliminary investigation, if there is no probable cause, the complaint will be dismissed or the fiscal will move to dismiss the case. ,ut if you insist on that right to preliminary investigation efore filing, ayaw mo ng inquest, then you must sign a WAI?A< in the presence of your counsel K waiver of your right under Article ./J, <P&. ere, while the preliminary investigation is still going on, you remain under detention. The second paragraph applies if he insist on the right to a regular or ordinary preliminary investigation. &orrelate this with "ection / FeG of <A -37) K 5aw Protecting <ights of Persons under custody K i.e. he must be assisted by his counsel. 4therwise the waiver is not valid.

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Rule 112 Preliminary Investigation

=ow, if there is no insistence, the case will be filed ahead. After it was filed, you can still ask for preliminary investigation within J days from the time you learn of the filing of the case. "o within J days lang, otherwise you are deemed to have waived your right to preliminary investigation =ote that the "& had ruled that the period of J days is =4=6AUTA=!I,5A K that is absolute. $PA4P5A vs. &A, /3/ "&<A (3J0. The five6day period is absolute. After J days, you have no more right to ask for a preliminary investigation. Take note that the general rule, once you post bail, you are waiving your right to a preliminary investigation. In P2*P52 3.. /A, if you do not want to waive your right to preliminary investigation, then if you post bail, you must make a reservation. Iou must say, !)'m posting ail ut )'m not waiving my right to preliminary investigation. )n fact7 ) am as&ing for it.$ In "ection -, last paragraph, when the accused post bail for his provisional release, he is deemed to have waived his right to preliminary investigation. To avoid the waiver, there must be a previous or simultaneous demand for a preliminary investigation upon posting of bail bond. SEC. F. Records. /a1 Re%"r&s su$$"r in! (e in)"rma i"n "r %"m$lain . An in)"rma i"n "r %"m$lain )ile& in %"ur s(all +e su$$"r e& +y (e a))i&avi s an& %"un er* a))i&avi s ") (e $ar ies an& (eir 'i nesses, "!e (er 'i ( (e " (er su$$"r in! evi&en%e an& (e res"lu i"n "n (e %ase. /+1 Re%"r& ") $reliminary inves i!a i"n. T(e re%"r& ") (e $reliminary inves i!a i"n, '(e (er %"n&u% e& +y a @u&!e "r a $r"se%u "r, s(all n" )"rm $ar ") (e re%"r& ") (e %ase. 2"'ever, (e %"ur , "n i s "'n ini ia ive "r "n m" i"n ") any $ar y, may "r&er (e $r"&u% i"n ") (e re%"r& "r any ") i s $ar '(en ne%essary in (e res"lu i"n ") (e %ase "r any in%i&en (erein, "r '(en i is " +e in r"&u%e& as an evi&en%e in (e %ase +y (e re#ues in! $ar y. "ection ) is 9ust a reiteration of a doctrine that when the fiscal files an information, he should back up his certification of probable cause with appropriate records. An information with mere certification is not enough. $5im, "r. vs. @eli#, supra0 SEC. 6. /ases not requiring a preliminary investigation nor covered y the Rule on .ummary Procedure. /a1 I) )ile& 'i ( (e $r"se%u "r. I) (e %"m$lain is )ile& &ire% ly 'i ( (e $r"se%u "r inv"lvin! an "))ense $unis(a+le +y im$ris"nmen ") less (an )"ur /01 years, '" /21 m"n (s an& "ne /11 &ay, (e $r"%e&ure "u line& in se% i"n 7/a1 ") (is Rule s(all +e "+serve&. T(e $r"se%u "r s(all a% "n (e %"m$lain +ase& "n (e a))i&avi s an& " (er su$$"r in! &"%umen s su+mi e& +y (e %"m$lainan 'i (in en /1B1 &ays )r"m i s )ilin!. /+1 I) )ile& 'i ( (e Muni%i$al Trial C"ur I) (e %"m$lain "r in)"rma i"n is )ile& 'i ( (e Muni%i$al Trial C"ur "r Muni%i$al Cir%ui Trial C"ur )"r an "))ense %"vere& +y (is se% i"n, (e $r"%e&ure in se% i"n 7 /a1 ") (is Rule s(all +e "+serve&. I) 'i (in en /1B1 &ays a) er (e )ilin! ") (e %"m$lain "r in)"rma i"n, (e @u&!e )in&s n" $r"+a+le %ause a) er $ers"nally evalua in! (e evi&en%e, "r a) er $ers"nally e-aminin! in 'ri in! an& un&er "a ( (e %"m$lainan an& (is 'i nesses in (e )"rm ") sear%(in! #ues i"ns an& ans'ers, (e s(all &ismiss (e same. He may, however, require the submission of additional evidence, within ten ( !" days from notice, to determine further the e#istence of probable cause. I) (e @u&!e s ill )in&s n" $r"+a+le %ause &es$i e (e a&&i i"nal evi&en%e, (e s(all, 'i (in en /1B1 &ays )r"m i s su+missi"n "r e-$ira i"n ") sai& $eri"&, &ismiss (e %ase. A(en (e )in&s $r"+a+le %ause, (e s(all issue a 'arran ") arres , "r a %"mmi men "r&er i) (e a%%use& (a& alrea&y +een arres e&, an& ("l& (im )"r rial. However, if the $udge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. /6a1 "ection * K &ases not requiring a preliminary investigation nor covered by the <ule on "ummary Procedure. 4bviously, "ection * talks only of cases $a0 cogni'able only by %T&+ $b0 the penalty does not e#ceed 3 years / months because even if it is 3 years / months . day $up to ( years0, it still requires a preliminary investigation

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Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition <draft copy; pls. check for errors>

Rule 112 Preliminary Investigation

under the new rules+ and $c0 it should not be covered by the <ules of "ummary Procedure. The coverage of summary procedure is up to ( months penalty. Q: What cases are covered by "ection *1 A: Where the prescribed penalty e#ceeds ( months but not more than 3 years and / months. These does not require preliminary investigation and also not covered by the summary rules. Q: =ow, going back to <ule ..B. In cases cogni'able by the %T&, how is it instituted1 A: "ection ., <ule ..B8 SECTION 1. Institution of criminal actions. Criminal a% i"ns s(all +e ins i u e& as )"ll"'s= /a1 ;"r "))enses '(ere a $reliminary inves i!a i"n is re#uire& $ursuan " se% i"n 1 ") Rule 112, +y )ilin! (e %"m$lain 'i ( (e $r"$er "))i%er )"r (e $ur$"se ") %"n&u% in! (e re#uisi e $reliminary inves i!a i"n. /+1 ;"r all " (er "))enses, +y )ilin! (e %"m$lain "r in)"rma i"n &ire% ly 'i ( (e Muni%i$al Trial C"ur s an& Muni%i$al Cir%ui Trial C"ur s, "r (e %"m$lain 'i ( (e "))i%e ") (e $r"se%u "r. In Manila an& " (er %(ar ere& %i ies, (e %"m$lain s s(all +e )ile& 'i ( (e "))i%e ") (e $r"se%u "r unless " (er'ise $r"vi&e& in (eir %(ar ers. ----"o there are two $/0 ways8 $a0 direct filing or $b0 you file with the prosecutor and the provincial prosecutor will file the information. 5etEs go to "ection *. If it is filed with the prosecutor, the procedure in "ection 7FaG of this rule shall be observed. There is no need for preliminary investigation. The prosecutor will simply find out based on the affidavit of the complainant and his witnesses whether or not there is probable cause. Wala ng counter6affidavit. There is no need for the prosecutor to give a chance to the respondent to give this counter6affidavits. "ection 7FaG lang sundin eh. There is no mention of FbG, FcG or FdG. "ection *FbG. What happens if it is filed in the %T& directly1 Again, the 9udge will observe the same procedure in "ection 7FaG of this rule. If the 9udge finds no probable cause after personally evaluating the evidence, or after personally e#amining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. "o he has the power to dismiss the case. Why continue if there is no probable cause1 The ne#t sentence is new8 !#e may7 however7 require the su mission of additional evidence7 within ten 1BC? days from notice7 to determine further the existence of pro a le cause.$ If the 9udge still finds no probable cause despite the additional evidence, he shall, within ten $.B0 days from its submission or e#piration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. FThe ne#t sentence is new again8G #owever7 if the :udge is satisfied that there is no necessity for placing the accused under custody7 he may issue summons instead of a warrant of arrest.$ "o it is not really necessary that every time a case is filed in the %T& with a penalty not more than 3 years and / months, kailangan mag6warrant of arrest agad ang 9udge. Wala na yan: That is the old practice. "ometimes it is very tedious. 5alo na sa %T&. Saramihan ng kaso sa %T& is bouncing check law. If I were the %T& 9udge, bouncing check law, sino ba yang akusado1 !Di &o &ilala. ;alita &o maraming &aso yan.$ Ah sige, I will issue a warrant. Pero halimbawa, sino yang akusado1 !#e is Eet Pascua7 "our #onor.$ 2y: Silala ko ito: ,usinessman ito, titser pa sa Ateneo. %ayaman ito: "us: %inalas lang. If I am the 9udge, I will not issue a warrant. Tatakbuhan ka ba niyan1

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Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition <draft copy; pls. check for errors>

Rule 112 Preliminary Investigation

"o the 9udge need not issue a warrant. Iou better tell that to those 9udges because they are automatic ba: K warrant: warrant: warrant: ;ust imagine kahit respectable man, first time offender K warrant kaagad ang mga %T& 9udges. Well, under the new rules, hindi man kailangan bah: Aven if there is probable cause to file, if he is satisfied that there is no necessity to put the accused in custody, he may issue summons. "ummons here is not really the same in the <ules of &ourt. It is 9ust a notice bah K notice that you are required to appear. And that is a new provision. =ow, we will go to some decided cases related to this rule. PEOPLE vs. NAVARRO 2.B SCRA 767, %arch /J, .**NOTE8 This case signifies that once the case reached the court, the court has the absolute power. Anything that you like to happen in the case like reinvestigation or absence of preliminary investigation, the 9udge will be the one to approve. ;ACTS8 The <T& 9udge felt that the case should be reinvestigated, or maybe there is no preliminary investigation. "o he orders the fiscal to conduct preliminary investigation, then submit the result to him afterwards what happened. "iguro, the 9udge had particular confidence in the assistant provincial prosecutor. "abi ng 9udge, CThe preliminary investigation should be conducted by this particular prosecutor K provincial assistant prosecutor ,oyd Atensor.D "iya ang nag6pili ba. "abi ng provincial prosecutor, C indi: Ako ang magpili and not you:D ISS5E= In remanding the complaint or information to the provincial prosecutor, may a regional trial court 9udge name or designate a particular assistant prosecutor to conduct the preliminary investigation of the case1 2EL4= =4. The <T& 9udge is already interfering with the office of the prosecutor. CIt must be stressed that preliminary investigation is an e#ecutive, not a 9udicial, function. That an <T& 9udge has no authority to conduct a preliminary investigation necessarily means that he cannot directly order an assistant prosecutor, particularly over the ob9ections of the latterHs superiors, to conduct a preliminary investigation. To allow him to do so is to authori'e him to meddle in the e#ecutive and administrative functions of the provincial or city prosecutor.D Q: &an a preliminary investigation be stopped by asking the court to grant a preliminary in9unction or a restraining order1 &an a criminal prosecution be en9oined or restrained1 A: =4, as a >A=A<A5 <25A. If you believe that you are not guilty, then you prove that in court. Anyway if you are not guilty, you will be acquitted. owever, the "& came out with AU&APTI4=" where courts is authori'ed to stop a criminal prosecution. These e#ceptions were all cited in the case of EROC8A vs. ENRILE 162 SCRA F7 2EL48 Indeed, the general rule is that criminal prosecution may not be restrained or stayed by in9unction, preliminary or final. There are however exceptions, among which are8 a. To afford adequate protection to the constitutional rights of the accused+ b. When necessary for the orderly administration of 9ustice or to avoid oppression or multiplicity of actions+ c. When there is a pre69udicial question which is sub 9udice+ d. When the acts of the officer are without or in e#cess of authority+ e. Where the prosecution is under an invalid law, ordinance or regulation+ f. When double 9eopardy is clearly apparent+

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Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition <draft copy; pls. check for errors>
g. h. i. 9.

Rule 112 Preliminary Investigation

Where the court has no 9urisdiction over the offense+ Where it is a case of persecution rather than prosecution+ Where the charges are manifestly false and motivated by the lust for vengeance+ and When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.

There are some interesting cases where the "& intervened. =ormally, hindi nakikialam ang "& eh K i6acquit mo na lang yan sa trial. ,ut there are cases when the "& is convinced that there is no probable cause, bakit mo pa pahirapan yung tao1 Iou can order the case to be dismissed. These are rare instances where the "& becomes activist. In the case of A5AA!4 ?". !I4S=4 $/7/ "&<A .*/0 two $/0 lawyers8 Atty. !iosdado ;ose Aleado and Atty. <oberto %endo'a who were associates in the office of senator ;ovito "alonga were implicated in the murder of a >erman national. There was an investigation and a case was filed against them. "alonga entered into picture and questioned whether or not there is probable cause. F=ormally, hindi dapat yan eh. Iang probable cause, sa fiscal lang yan, hindi dapat sa "&.G ,ut surprisingly, the "& reviewed and said that there was no probable cause which 9ustified the issuance of order of arrest of the / lawyers. The "& ordered that the warrant of arrest be set aside and the trial court is permanently en9oined from further proceeding against them. In effect, the respondent 9udge was ordered to dismiss the information before him. $Aleado vs. !iokno, supra0

It was a very rare situation. That does not happen every year. It does not happen even in .B or /B years: Ian ang mga kuyaw where the &ourt has the power to issue in9unction order to stop a case when there is no probable cause. "alonga yata yan: SPACE*;ILLER <2= A recently graduated lawyer wanted to make everyone believe that he was in great demand, so he ordered his secretary to keep clients waiting for a long time. A man arrived and asked to see the lawyer, so the secretary did as she was told. After a while, she showed the man into her bossEs office, while the lawyer pretended to be on the phone handling a delicate situation with an important client. The lawyer ended the make6believe phone call and hung up. e asked the man8 C ow can I help you1D The man answered8 CIEm here to install the phone line.D .ource: Reader's Digest7 4arch FCCB

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