Preliminary Investigation (Rule 112)

NOTE: This rule has been partially amended by AM 05-8-26. The amendments took effect on
October 3, 2005. The conduct of preliminary investigation has been removed from judges of
the first level courts.

1. Preliminary investigation defined; when required; nature of right

Section 1. Preliminary investigation defined; when required. — Preliminary

investigation is an inquiry or proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial.

Except as provided in section 7 of this Rule, a preliminary investigation is required to

be conducted before the filing of a complaint or information for an offense where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1) day
without regard to the fine. (1a)

Section 8. Records. — (a) Records supporting the information or complaint. — An

information 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
evidence and the resolution on the case.

(b) Record of preliminary investigation. — The record of the preliminary

investigation, whether conducted by a judge or a fiscal, shall not form part of the record
of the case. However, the court, on its own initiative or on motion of any party, may
order the production of the record or any its part when necessary in the resolution of
the case or any incident therein, or when it is to be introduced as an evidence in the
case by the requesting party. (8a)

What is preliminary investigation?

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient

ground to engender a well-founded belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial.

When is it required?

Before a complaint or information is filed, preliminary investigation is required for all offenses
punishable by imprisonment of at least 4 years, 2 months, and 1 day, regardless of the fine,
except if the accused was arrested by virtue of a lawful arrest without warrant. In such a case,
the complaint or information may be filed without a preliminary investigation unless the accused
asks for a preliminary investigation and waives his rights under Article 125 of the RPC.

HOWEVER, the accused can ask for Preliminary Investigation in the following cases:

1. if a person is arrested, he can ask for preliminary investigation BEFORE the filing of the
complaint/information BUT he must sign a waiver in accordance with Article 125, RPC.

2. AFTER the filing of the information/complaint, the accused may, within 5 days from the time
he learns of its filing ask for preliminary investigation.

Page 1 of 56
 Is the right to a preliminary investigation a fundamental right (Nature of right)?

1. No, it is a statutory right and may be waived expressly or by silence.

2. It is also not an element of due process, unless it is expressly granted by law.

3. It is merely inquisitorial and a means of determining the persons who may be reasonably
charged with a crime. It is not a trial of the case on the merits.

4. Absence of preliminary investigation does not affect the jurisdiction of the court but merely the
regularity of the proceedings.

5. It is not part of the trial of the criminal action in court. Nor is its record part of the record of
the case in the RTC.

The dismissal of the case by the investigator will not bar the filing of another complaint for the
same offense, but if re-filed, the accused is entitled to another preliminary investigation.

Page 2 of 56
2. Purposes of preliminary investigation; effect of denial of the right to preliminary
investigation; remedy; waiver of preliminary investigation;

NOTE: Rule 112 pertains to preliminary investigation conducted by the prosecutor

What is the purpose of a preliminary investigation?

1. To determine if there is sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty thereof, and should be held for trial.

2. To protect the accused from the inconvenience, expense, and burden of defending himself in
a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a
fairly summary proceeding by a competent officer.

3. To secure the innocent against hasty, malicious and oppressive prosecution, and to protect
him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a
public trial.

4. To protect the state from having to conduct useless and expensive trials.

5. To determine the amount of bail, if the offense is bailable.

When is preliminary investigation required to be conducted?

GR: Before the filing of a complaint or information for an offense where the penalty prescribed
by law is imprisonment of at least 4 yrs., 2 months and 1 day.

XPN:

1. Where an information or complaint is filed pursuant to Sec. 7, Rule 112, i.e. the complaint or
information is filed directly in court (Sec. 1);

2. For cases requiring preliminary investigation, when a person is lawfully arrested without a
warrant provided that inquest was made in accordance with Rule 112 (Sec. 6).

NOTE: Cases falling under summary procedure or punishable with a penalty of

imprisonment less than 4 yrs., 2 months and 1 day does not require preliminary
investigation. See discussion on Sec. 1, Rule 110 for cases directly filed in court.

What is the scope of preliminary investigation?

Preliminary investigation is merely inquisitorial and it is often the only means of discovering
whether the offense has been committed and the persons responsible for it to enable the fiscal to
prepare his complaint or information.

It is not a trial on the merits and has no purpose but to determine whether there is probable
cause to believe that an offense has been committed and that the accused is probably guilty of
it. It does not place the accused in jeopardy.

Can an accused demand the right to confront and cross-examine his witnesses during
the preliminary investigation?

No. The preliminary investigation is not part of the trial. It is summary and inquisitorial in nature,
and its function is not to determine the guilt of the accused but merely to determine the existence
of probable cause.

Page 3 of 56
 Is the lack of a preliminary investigation a ground for dismissing a complaint?

No. The absence of a preliminary investigation does not affect the jurisdiction of the court but
merely the regularity of the proceedings. The court cannot dismiss the complaint on this ground,
and it should instead conduct the investigation or order the fiscal or lower court to do it.

What is the effect of the absence of a certification that a preliminary investigation

was conducted?

It is of no consequence. What is important is that there was actually an investigation, that the
accused was informed thereof and was allowed to present controverting evidence.

When should the right to preliminary investigation be invoked?

The accused should invoke it before plea, or else, it is deemed waived.

What are the instances wherein the right to preliminary investigation is deemed
waived?

It shall be deemed waived by:

1. express waiver or by silence (Herrera, Vol. IV, p. 278, 2007 ed.);

2. failure to invoke it during arraignment (People v. De Asis, G.R. No. 105581, Dec. 7, 1993);
and

3. consenting to be arraigned and entering a plea of not guilty without invoking the right to
preliminary investigation (People v. Bulosan, G.R. No. 58404, Apr. 15, 1988);

NOTE:

1. The waiver, whether express or implied, must be in a clear and unequivocal manner
(Herrera, Vol. IV, p. 278, 2007 ed.)

2. The right to preliminary investigation cannot be raised for the first time on appeal (Pilapil
v. Sandiganbayan, G.R. No. 101978, Apr. 7, 1993).

What are the instances wherein the right to preliminary investigation is not deemed
waived?

1. Failure to appear before the prosecutor during the clarificatory hearing or when summoned,
when the right was invoked at the start of the proceeding (Larranaga v. CA, G.R. No. 130644,
Mar. 13, 1998); or

2. When the accused filed an application for bail and was arraigned over his objection and the
accused demanding that preliminary investigation be conducted (Go v. CA, G.R. No. 101837, Feb.
11, 1992).

What is the effect if the accused raises the issue of lack of preliminary investigation
before entering plea?

The court, instead of dismissing the information, should conduct the preliminary investigation or
order the prosecutor to conduct it (Larranaga v. CA, G.R. No. 130644, Mar. 13, 1998).

Page 4 of 56
 What if the court denies the invocation of the right to a preliminary investigation,
what is the remedy of the accused?

He must immediately appeal it to the appellate court. He cannot later raise the issue for the first
time on appeal.

If the complaint or information is amended, should a new preliminary investigation

be conducted? No.

If the complaint or information is substituted, should a new preliminary investigation

be conducted? Yes.

Cases: (A) Ernesto Marcelo vs. Rafael R. Villordon, G.R. No. 173081, December 15, 2012;

Page 5 of 56
Tickler: In this case, the court clearly explained that since the institution of a criminal action involves the exercise of
sound discretion by the prosecutor and there being other plain, speedy and adequate remedies available to petitioners,
the resort to the extraordinary writ of mandamus must fail.

Doctrine: Sections 1 and 2 of Rule 112 of the Revised Rules of Criminal Procedure state: Section 1. Preliminary
investigation defined; when required. – Preliminary investigation is an inquiry or proceeding to determine whether there
is sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial. x x x

Sec. 2. Officers authorized to conduct preliminary investigations. – The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants; x x x Rule 65, ROC,

Sec. 3. Petition for Mandamus. – When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of
the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

Facts: Marcelo and Llames, together with others, filed with the Office of the City Prosecutor of QC a criminal complaint
against their former employers Eduardo R. Dee, Sr. This stemmed from Dee’s non-payment of their wages as President
and General Manager of New Sampaguita Builders Construction Incorporated. 2. After several hearings for the preliminary
investigation of the case, where Dee did not appear, Assistant City Prosecutor of QC, Rafael R. Villordon declared the case
submitted for resolution.

After three months, Dee showed up and filed a motion to reopen the case and simultaneously submitted his counter-
affidavit. Villordon’s superior approved the motion. On the first hearing, Dee did not appear but Marcelo and Llames were
present and signed the minutes of the hearing confirming that they would appear and file a reply-affidavit to Dee’s
counter-affidavit as directed by Villordon. On the second hearing, Dee, as well as Marcelo and Llames failed to appear.
The petitioners also failed to submit their reply-affidavit. Since then, no other action was taken on the matter.

Due to the long delay, Marcelo and Llames filed an anti-graft and corruption case against Villordon with the OMB for
violation of Section 3(f) of RA No 3019. They also filed a petition for mandamus with the RTC. OMB dismissed the case
and RTC denied the petition. RTC explained that they failed to exhaust available administrative remedies before resorting
to the court. They could have first referred the matter to Villordon’s superior to correct his error, and they should have
waited for the determination of the OMB case before filing in the RTC. The RTC also pointed out that they appeared and
signed the minutes giving chance for the last time to Dee to show up on the next hearing.

However, none of the parties appeared on the second meeting hearing. Villordon also reasoned out that he waited for a
move from Marcelo and Llames to enable him to dispose of the cases accordingly. With the following facts, he argues that
the petitioners don’t have the legal right to compel him to perform the relief they are suing for. 5. Petitioners now seek
to reverse the RTC’s decision and grant the extraordinary writ of mandamus to compel Villordon to resolve the preliminary
investigation and file a criminal information against Dee.

Issue: Whether petitioners are entitled to the extraordinary writ of mandamus

Ruling: In accordance with Sec 3, Rule 65 of ROC, mandamus will lie if 1) any tribunal, corporation, board, officer, or
person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or
station; or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled;
and (2) there is no plain, speedy and adequate remedy in the ordinary course of law other than the remedy of mandamus
being invoked.

In the present case, petitioners insist that mandamus is a proper remedy since Villordon committed grave abuse of
discretion by refusing to file a case despite of the strong evidence against Dee. However, as held in Hipos v Judge Bay,
remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary one. The function of
determining whether there is sufficient ground for the filing of the information is executive in nature and rests with the
prosecutor (Sec 1 and 2, Rule 122 ROC). It is the prosecutor alone who has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court.

Also, due to the non-appearance of Dee on several hearings and the non-submission of the reply-affidavit by petitioners,
Villordon cannot be faulted if he is still not convinced that a criminal information should be filed against Dee. The assertion
of petitioners that the evidence against Dee is strong, amounting to grave abuse of discretion on Villordon’s part in not
filing the criminal information, has not been clearly established.

Petitioners were not able to sufficiently demonstrate that they had no other plain, speedy and adequate remedy in order
to be entitled to mandamus. The recourse could have been simply to submit their reply-affidavit in order for Villordon to
make the proper determination whether there was sufficient ground to hold Dee for trial.

Page 6 of 56
(B) Pedro Tandoc vs. Hon. Ricardo P. Resultan, G.R. No. 59241-44, July 5, 1989;

Tickler: Petitioners in this case seek the re-investigation by the Office of the City Fiscal. However,
the court explained that the re-investigation sought by petitioners applies only instances where
a case is cognizable by the Court of First Instance but filed with the City Court for purposes of
preliminary investigation only and thereafter dismissed by the latter on the ground that no prima
facie case exists. However, for cases cognizable by inferior courts and filed with the same not
only for purposes of preliminary investigation but for trial on the merits, the Office of the City
Fiscal has no authority to re-investigate.

Doctrine: There are two (2) stages in a preliminary investigation; first, the preliminary
examination of the complainant and his witnesses prior to the arrest of the accused to determine
whether or not there is ground to issue a warrant of arrest; second, preliminary investigation
proper, wherein the accused, after his arrest, is informed of the complaint filed against him and
is given access to the testimonies and evidence presented, and he is also permitted to introduce
evidence in his favor. The purpose of this stage of investigation is to determine whether or not
the accused should be released or held before trial.

Facts: This controversy arose from a heated altercation and physical assaults amongst neighbors.
Based on the collated complaints of both parties, in October 1980, at the house of Pacita Tandoc,
respondents Cancino, Arnulfo Payopay, Conrado Payopay, Sr. and several others intruded the
sari-sari store and house of the former and an altercation ensued. In the middle of the verbal
joust, Arnulfo and Beda Acosta picked up stones and hurled them unto Pacita, though, the
projectiles instead hit the latter’s helpers who sustained physical injuries.

Thereafter, Tandoc’s party filed complaints against the intruders with the City Fiscal of San Carlos
City, Pangasinan, which sometime November 1980 found probable cause that all the respondents
committed trespass to dwelling, Arnulfo serious physical injuries and Acosta slight physical
injuries. Four days later, respondents filed complaints against Tandoc’s party with the same
fiscal’s office, however, the latter found them merely as belated countercharges meriting
dismissal, except the trespass to dwelling charged against Pedro Tandoc.

Displeased with the fiscal’s resolution, in July 1981, Payopay’s party directly lodged their
complaints with City Court San Carlos (CCSC), where the criminal cases initiated by the Tandocs
against them are pending. Subsequently, the CCSC issued several Orders which are the subject
of this Petition for Certiorari, whereby the said court, after conducting preliminary examination of
Payopay’s complaints found reasonable ground to believe that the offenses charged may have
been committed by the accused, herein petitioners. The Tandocs moved for reconsideration and
re-investigation of the complaints by the city fiscal, insisting that the latter had already evaluated
the same and found no prima facie case.

Issue: W/N the CCSC had the power and authority to conduct anew a preliminary examination
of charges, which already went thru a preliminary investigation (PI) by the city fiscal who ordered
their dismissal.

Ruling: Petition is denied, re-investigation is not allowed in this instance. The policy objective for
the conduct of a PI is to protect the accused from the inconvenience, expense and burden of
defending himself in a formal trial unless reasonable probability of his guilt shall have been first
ascertained in a fairly summary proceeding by a competent officer. It is also intended to protect
the state from having to conduct useless and expensive trials.

There are TWO (2) STAGES in a PI; FIRST, the PRELIMINARY EXAMINATION of the complainant
and his witnesses prior to the arrest of the accused to determine whether or not there is ground
to issue a warrant of arrest; SECOND, PRELIMINARY INVESTIGATION PROPER, wherein the
accused, after his arrest, is informed of the complaint filed against him and is given access to the
testimonies and evidence presented, and he is also permitted to introduce evidence in his favor.
The purpose of this stage of investigation is to determine whether or not the accused should be
released [and the complaint be dismissed or he should be held for trial].

Page 7 of 56
A PI is inquisitorial in nature and it is not a trial on the merits of the case and has no purpose
except that of determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof, and it does not place the person against whom
it is taken in jeopardy (as does not constitute a trial on the merits). Under the Section 9, Rule
112, certain crimes require a different approach in PI. The rationale for this is as follows. “xxx the
withholding of the right of the PI from the accused in cases triable by the inferior courts involving
offenses with lower penalties than those exclusively cognizable by CFIs, could not be termed an
unjust or unfair distinction.

The loss of time entailed in the conduct of PIs, with the consequent extension of deprivation of
the accused's liberty, in case he fails to post bail, which at times outlasts the period of the penalty
provided by law for the offense, besides the mental anguish suffered in protracted litigations, are
eliminated with the assurance of a speedy and expeditious trial for the accused, upon his
arraignment (without having to undergo the second stage of the PI), and of a prompt verdict on
his guilt or innocence.

On the other hand, the so-called first stage of PI or the preliminary examination, conducted by
the duly authorized officer, as borne out by the examination and sworn written statement of the
complainants and their witnesses, generally suffices to establish the existence of reasonable
ground to charge the accused with having committed the offense complained of.

In the case at bar, the offenses charged against petitioners for "Trespass to Dwelling", "Grave
Threats" and "Physical Injuries" were all within the jurisdiction of the CCSC. Under the
circumstances, the complaints could be filed directly with the City Court which is empowered to
conduct a preliminary examination for purposes of issuance of warrants of arrest, and thereafter
to proceed with the trial of the cases on the merits. The PI proper conducted by the Office of the
City Fiscal could have been dispensed with. Neither did the earlier order of dismissal of the
complaints by the investigating fiscal bar the filing of said complaints with the city court on the
ground of double jeopardy.

As long as the offense charged has not prescribed, the city court has the power and authority to
conduct a preliminary examination and proceed with the trial of the case properly within its
jurisdiction. The prescriptive period of a crime depends upon the penalty imposed by law. The
prescriptive period of offenses punishable by arresto mayor is five (5) years, while crimes
punishable by correctional penalties prescribe in ten (10) years.

Page 8 of 56
(C) Rolito Go vs. The Court of Appeals, G.R. No. 101837, February 11, 1992;

Tickler: Petitioner in this case remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in abeyance and a
preliminary investigation forthwith accorded to petitioner. It is true that the Prosecutor might, in view
of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the
other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not
warrant a finding of probable cause.

Doctrine: While that right to Preliminary Investigation is statutory rather than constitutional in its
fundament since it has in fact been established by statute, it is a component part of due process in
criminal justice. The right to have a preliminary investigation conducted before being bound over to
trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right.

The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation,
not to speak of expense; the right to an opportunity to avoid a process painful to any one save,
perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him of the full measure of his right to due process.

Facts: Petitioner, while traveling in the wrong direction on a one-way street, almost had a collision
with another vehicle. Petitioner thereafter got out of his car, shot the driver of the other vehicle, and
drove off. An eyewitness of the incident was able to take down petitioner’s plate number and reported
the same to the police, who subsequently ordered a manhunt for petitioner.

6 days after the shooting, petitioner presented himself in the police station, accompanied by 2 lawyers,
the police detained him. Subsequently a criminal charge was brought against him. Petitioner posted
bail, the prosecutor filed the case to the lower court, setting and commencing trial without preliminary
investigation. Prosecutor reasons that the petitioner has waived his right to preliminary investigation
as bail has been posted and that such situation, that petitioner has been arrested without a warrant
lawfully, falls under Section 5, Rule 113 and Section 7, Rule 112 of The 1985 Rules of Criminal
Procedure which provides for the rules and procedure pertaining to situations of lawful warrantless
arrests. Petitioner in his petition for certiorari assails such procedure and actions undertaken and files
for a preliminary investigation.

Issues:

(1) Whether or Not warrantless arrest of petitioner was lawful.

(2) Whether or Not petitioner effectively waived his right to preliminary investigation.

Ruling: Petitioner and prosecutor err in relying on Umil v. Ramos, wherein the Court upheld the
warrantless arrest as valid effected 1 to 14 days from actual commission of the offenses, which
however constituted “continuing crimes,” i.e. subversion, membership in an outlawed organization,
etc. There was no lawful warrantless arrest under Section 5, Rule 113. This is because the arresting
officers were not actually there during the incident, thus they had no personal knowledge and their
information regarding petitioner were derived from other sources. Further, Section 7, Rule 112, does
not apply. Petitioner was not arrested at all, as when he walked in the police station, he neither
expressed surrender nor any statement that he was or was not guilty of any crime. When a complaint
was filed to the prosecutor, preliminary investigation should have been scheduled to determine
probable cause. Prosecutor made a substantive error, petitioner is entitled to preliminary investigation,
necessarily in a criminal charge, where the same is required appear thereat. Petition granted,
prosecutor is ordered to conduct preliminary investigation, trial for the criminal case is suspended
pending result from preliminary investigation, petitioner is ordered released upon posting a bail bond.

Page 9 of 56
(D) Esmael Orquinaza vs. People, G.R. No. 165596, November 17, 2005

Tickler: The absence of a preliminary investigation does not affect the court's jurisdiction over the case nor
impair the validity of the information or otherwise render it defective. The remedy of the accused in such
case is to call the attention of the court to the lack of a preliminary investigation and demand, as a matter
of right, that one be conducted.

Doctrine: The real nature of the criminal charge is determined not from the caption or preamble of the
information nor from the specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the complaint or information.

Facts: In 2003, Arida, an employee of Calamba Model Makers factory, together with her witness Espinili,
executed a sworn statement before the Calamba City Police Station regarding the alleged act of Orquinaza,
the general manager of the said factory, of kissing her and touching her breasts while she was taking a nap
inside a room of the factory. The Calamba City Police designated the offense as sexual harassment and
referred the case to the Office of the Prosecutor. The assistant city prosecutor issued a subpoena ordering
respondent Arida and Orquinaza to appear for preliminary investigation. Orquinaza filed a motion to dismiss
before the Office of the City Prosecutor, arguing that the affidavits of Arida and Espinili do not contain
allegations to constitute the crime of sexual harassment. Soon, the assistant city prosecutor issued a
resolution finding that there was no transgression of the anti-sexual harassment law, but petitioner's act of
grabbing complainant's breasts and kissing her constitute acts of lasciviousness. Thus, he filed with the
MTCC an information charging petitioner with acts of lasciviousness. A warrant of arrest was issued against
Orquinaza. Orquinaza filed an omnibus motion praying that the warrant be recalled, the information be
quashed, the arraignment be invalidated and the case be dismissed. He also claims that he was deprived of
his right to due process since the information for acts of lasciviousness was void as the preliminary
investigation conducted by the prosecutor was for sexual harassment and not for acts of lasciviousness. The
MTCC denied the motion.

Issues:

(1) Is there a need for new preliminary investigation?

(2) Should the case be dismissed on the ground of lack of preliminary investigation? Is lack of preliminary
investigation a ground for the quashal of the information?

Ruling:

1. No. Arida's statement contains all the allegations to support the charge of acts of lasciviousness under
Article 336 of the Revised Penal Code, i.e., (1) the offender commits any act of lasciviousness or lewdness,
(2) under any of the following circumstances: (a) using force or intimidation, (b) the offended party is
deprived of reason or otherwise unconscious, or (c) offended party is under 12 years of age. Petitioner had
the opportunity to refute all the allegations made by Arida when the Assistant City Prosecutor required him
to submit his counter-affidavit. The conduct of another preliminary investigation for the offense of acts of
lasciviousness would be a futile exercise because the complainant would only be presenting the same facts
and evidence which have already been studied by the prosecutor. The Court frowns upon such superfluity
which only serves to delay the prosecution and disposition of the criminal complaint. The designation by the
police officer of the offense as sexual harassment when she referred the case to the Office of the Prosecutor
is not conclusive as it is within the competence of the prosecutor to assess the evidence submitted and
determine therefrom the appropriate offense to be charged. That is precisely the purpose of the preliminary
investigation. It is a means to allow the parties to present their affidavits and counter-affidavits before the
prosecutor to enable the latter to ascertain whether there is sufficient ground to indict the accused and to
help him prepare the information to be filed in court. Preliminary investigation is an inquiry or proceeding to
determine whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof and should be held for trial.

2. Even if it were necessary to conduct another preliminary investigation for the charge of acts of
lasciviousness, the lack of such preliminary investigation would still not be a ground to quash the information
against the accused. The Court has often held that the lack of preliminary investigation is not a ground to
quash or dismiss a complaint or information. Much less does it affect the court's jurisdiction. The absence of
a preliminary investigation does not affect the court's jurisdiction over the case nor impair the validity of the
information or otherwise render it defective. The remedy of the accused in such case is to call the attention
of the court to the lack of a preliminary investigation and demand, as a matter of right, that one be
conducted. The court, instead of dismissing the information, should merely suspend the trial and order the
fiscal to conduct a preliminary investigation.
Page 10 of 56
3. Admission to the Witness Protection Program (R.A. No. 6981)

Section 3. Admission into the Program. - Any person who has witnessed or has knowledge or
information on the commission of a crime and has testified or is testifying or about to testify
before any judicial or quasi-judicial body, or before any investigating authority, may be admitted
into the Program:

Provided, That:

a) the offense in which his testimony will be used is a grave felony as defined under the Revised
Penal Code, or its equivalent under special laws;lawphi1Ÿ

b) his testimony can be substantially corroborated in its material points;

c) he or any member of his family within the second civil degree of consanguinity or affinity is
subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced,
intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or
evasively, because or on account of his testimony; and

d)he is not a law enforcement officer, even if he would be testifying against the other law
enforcement officers. In such a case, only the immediate members of his family may avail
themselves of the protection provided for under this Act.

If the Department of Justice, after examination of said applicant and other relevant facts, is
convinced that the requirements of this Act and its implementing rules and regulations have been
complied with, it shall admit said applicant to the Program, require said witness to execute a
sworn statement detailing his knowledge or information on the commission of the crime, and
thereafter issue the proper certification. For purposes of this Act, any such person admitted to
the Program shall be known as the Witness.

Page 11 of 56
4. Officers authorized to conduct preliminary investigation; who may conduct
determination of existence of probable cause; authority co-extensive with territorial
jurisdiction; authority to conduct preliminary investigation and prosecution of
government-related cases;

Section 2. Officers authorized to conduct preliminary investigations. —

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes cognizable
by the proper court in their respective territorial jurisdictions. (2a)

Who may conduct a preliminary investigation?

1. Provincial or city prosecutors and their assistants
2. Judges of the MTCs
3. National and Regional State Prosecutors
4. Comelec with respect to election offenses
5. Ombudsman with respect to Sandiganbayan offenses and other offenses committed by
public officers
6. PCGG with respect to ill-gotten wealth cases

Can RTC judges conduct a preliminary investigation?

No. Although this should not be confused with the authority of the RTC to conduct an examination
for the purpose of determining probable cause when issuing a warrant of arrest.

What is the effect if lack of preliminary investigation is raised in a proceeding pending

before the Sandiganbayan?
The proceeding will be held in abeyance and case should be remanded to the Office of the
Ombudsman or the Special Prosecutor to conduct the preliminary investigation (Ong v.
Sandiganbayan, G.R. No. 126858, Sept. 26, 2005).

What is the effect of absence of preliminary investigation?

It does not:
1. become a ground for a motion to quash the complaint or information (Sec. 3, Rule 117);
2. affect the court’s jurisdiction (People v. De Asis, G.R. No. 105581, Dec. 7, 1993);
3. impair the validity of the information or render it defective; and
4. justify the release of the respondent or nullify the warrant of arrest against him (Larranaga v.
CA, G.R. No. 130644, Mar. 13, 1998).

Page 12 of 56
 What are the instances when preliminary investigation is not required even if the
offense requires a preliminary investigation?
1. If a person is arrested lawfully without a warrant involving an offense which requires a
preliminary investigation, i.e., the penalty is at least four years, two months and one day, an
information or complaint may be filed against him without need for a preliminary investigation. If
he has been arrested in a place where an inquest prosecutor is available, an inquest will be
conducted instead of preliminary investigation. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed directly with the proper court on the basis of the affidavit
of the offended party or arresting officer or person (Sec. 7)

2. The fact that a person was lawfully arrested without a warrant does not absolutely bar him
from availing of a preliminary investigation because before the complaint or information is filed,
he may ask that a preliminary examination be conducted. However, before he is granted the
preliminary investigation asked for by him, he must sign a waiver of the provisions of Article 125
of the Revised Penal Code.

3. If the complaint or information has been filed without a preliminary investigation, the accused
who desires a preliminary investigation, may, within five days from the time he learns of its filing,
ask for a preliminary investigation (Sec. 7)

NOTE: The waiver of the provisions of Article 125 does not bar the person arrested from
applying for bail and even while the preliminary investigation is pending.

Page 13 of 56
Cases: (A) Honasan II vs. The Panel of Investigating Prosecutors of the Department of
Justice, 427 SCRA 46.

Tickler: The present case is a petition for certiorari under Rule 65 of the Rules of Court against
the DOJ Panel and its members, CIDG-PNP-P/Director Matillano and Ombudsman Simeon V.
Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing an order on
the ground that the DOJ has no jurisdiction to conduct the preliminary investigation. The court
resolves by ruling otherwise.

Doctrine: Sec. 2. Officers authorized to conduct preliminary investigations. – The following may
conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes cognizable by the
proper court in their respective territorial jurisdictions.

Facts: On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ)
by respondent CIDG-PNP/P Director Eduardo Matillano alleging that after a thorough
investigation, he found that certain military personnel and Senator Gregorio Honasan II have
committed the crime of coup d’etat on July 27, 2003.

The complaint was based on the sworn statement of AFP Major Perfecto Ragil wherein he stated
in his affidavit that he is a member of the Armed Forces of the Philippines and was invited to the
National Recovery Program (NRP) with a certain Captain Alejano. In the said meeting, Sen. Gringo
Honasan presided the gathering wherein a plan on overthrowing the government through force,
violence and armed struggle in order to achieve the goals of NRP. Ragil opposed the proposition
but due to threats on his person, he was forced to pursue it and even join their blood compact.

This prompted the Panel of Investigating Prosecutors of the DOJ to send a subpoena to Honasan
for preliminary investigation.

On August 27, 2003, Honasan and his counsel appeared at the DOJ and filed a Motion for
Clarification questioning DOJ’s jurisdiction over the case. He asserted that since the since the
imputed facts were committed in relation to his public office, it is the Office of the Ombudsman,
not the DOJ, that has jurisdiction to conduct the preliminary investigation. They further alleged
that it is the Sandiganbayan and not the regular courts that should take cognizance of the case
since they are public officials with Salary Grade 31.

On September 10, 2003, DOJ thereafter issued an order deferring the resolution of Honasan’s
motion to clarify jurisdiction.

Hence, Senator Honasan II filed the present petition for certiorari under Rule 65 of the Rules of
Court against the DOJ Panel and its members, CIDG-PNP-P/Director Matillano and Ombudsman
Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing
an order on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation.
The Court then heard the parties in oral arguments on the following issues:

1. Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct

preliminary investigation over the charge of coup d'etat against petitioner;

2. Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No.
6770 or Ombudsman Act of 1989; and

3. Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in

deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim of
the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation.
Page 14 of 56
Petitioner’s Contentions:

1. The Office of Ombudsman has jurisdiction to conduct the preliminary investigation.

2. DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Ciruclar No. 95-001 to
conduct the preliminary investigation of Honasan.

3. OMB-DOJ Joint Circular NO. 95-001 is ultra vires for being violative of the Constitution.

4. Since Honasan is charged with coup d’etat in relation to his office, it is the Ombudsman which
has the jurisdiction, not the DOJ Panel.

DOJ Panel’s Arguments:

1. DOJ has jurisdiction to conduct the preliminary investigation pursuant to Sec. 3, Chapter 1,
Title III, Book IV of the Revised Administrative Code of 1987 in relation to PD No. 1275, as
amended by PD No. 1513.

2. Honasan Is charged with a crime that is not directly nor intimately related to his public office
as a Senator.

3. The challenge against the constitutionality of the OMB-DOJ Joint circular is misplaced.

Issue: Whether or not the DOJ Panel has the authority and jurisdiction to conduct preliminary
investigation over the case of Honasan.

Ruling: YES. The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ
Circular No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title
III, Book IV, governing the DOJ. Under the said provision, the DOJ, as the government’s legal
counsel and prosecution arm, has the power to investigate the commission of crimes, prosecute
offenders and administer the probation and correction system.

With regard to the issue of the Ombudsman jurisdiction over the case, Par. 1 of Section 13, Article
XI of the Constitution does not exclude other government agencies tasked by law to investigate
and prosecute cases involving public officials. Under R.A 6770 or “The Ombudsman Act of 1989,”
the authority of the Ombudsman to investigate offenses involving public officers or employees is
not exclusive but is concurrent with other similarly authorized agencies of the government. Such
investigatory agencies referred to include the PCGG and the provincial and city prosecutors and
their assistants, the state prosecutors and the judges of the municipal trial courts and municipal
circuit trial court. In other words the provision of the law has opened up the authority to conduct
preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory
agencies of the government duly authorized to conduct a preliminary investigation under Section
2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the
Ombudsman may take over at any stage of such investigation in the exercise of his primary
jurisdiction (when the case is cognizable by the Sandiganbayan).

Therefore, the fact that Honasan holds a Salary Grade 31 position (and that his case may be
cognizable by the Sandiganbayan) does not remove from the DOJ Panel the authority to
investigate the charge of coup d'etat against him.

The petition for certiorari is DISMISSED for lack of merit.

Page 15 of 56
5. Procedure: filing of the complaint; action on the complaint; counter-affidavit; hearing
by the investigating officer;

Section 3. Procedure. — The preliminary investigation shall be conducted in the

following manner:

(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
supporting documents to establish probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies for the official file. The affidavits
shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary
public, each of who must certify that he personally examined the affiants and that he
is satisfied that they voluntarily executed and understood their affidavits.

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

The respondent shall have the right to examine the evidence submitted by the
complainant 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
he intends to present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense.

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

(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-affidavit
and that of his witnesses and other supporting documents relied upon for his defense.
The counter-affidavits shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section, with copies thereof furnished by him to the complainant.
The respondent 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 submit

counter-affidavits within the ten (10) day period, the investigating officer shall resolve
the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be
clarified from a party or a witness. The parties can be present at the hearing but without
the right to examine or cross-examine. They may, however, submit to the investigating
officer 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. It shall
be terminated within five (5) days.

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

Page 16 of 56
 What is the procedure in conducting a preliminary investigation?

1. The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainants and his witnesses as well as other documents to establish probable
cause. The affidavits must be subscribed and sworn before the prosecutor or government official
authorized to administer oath or notary public.

2. Within 10 days from the filing of the complaint, the investigating officer shall either:

a. dismiss it if he finds no ground to continue the investigation; or

b. issue a subpoena to the respondent accompanied by the complaint and affidavits.

The respondent shall have the right to examine the evidence, etc, etc.

3. Within 10 days from receipt of the subpoena, the respondent shall submit his counter-affidavit,
the affidavits of his witnesses, and other documents in his defense. Affidavits should also be
sworn and subscribed. The respondent cannot file a motion to dismiss in lieu of a counter-
affidavit.

4. If the respondent cannot be subpoenaed or if he fails to file his counter-affidavit within 10

days, the investigating officer shall resolve the complaint based on the evidence submitted by the
complainant.

5. If there are facts and issued which need to be clarified, the investigating officer may set a
hearing. The parties can be present, but they cannot cross-examine. The hearing shall be held
within 10 days from the submission of the counter-affidavits or from the expiration of the period
of their submission. It shall be terminated within 5 days.

6. Within 10 days from the termination of the investigation, the investigating officer shall
determine whether or not there is probable cause to hold the respondent for trial.

RIGHTS OF RESPONDENT IN A PRELIMINARY INVESTIGATION

1. to submit counter-affidavits

2. to examine evidence submitted by the complainant

3. to be present in the clarificatory hearing.

NOTE: Object evidence need not to be furnished but is available for examination, copying
or photographing at the expense of the requesting party (Sec. 3, Rule 112).

Is a preliminary investigation a judicial proceeding?

Yes because there is an opportunity to be heard and the production and weighing of evidence
upon which a decision is rendered. Since it is a judicial proceeding, the requirement of due
process in judicial proceedings is also required in preliminary investigations.

What is the difference between criminal investigation and preliminary investigation?

Criminal investigation is a fact-finding investigation carried out by law-enforcement officers for

the purpose of determining whether they should file a complaint for preliminary investigation.

Preliminary investigation is conducted for the purpose of determining if there is probable cause
to hold a person for trial.

Page 17 of 56
 What is the difference between the preliminary investigation conducted by the
prosecutor and the preliminary investigation conducted by the judge?

The preliminary investigation conducted by the prosecutor is EXECUTIVE in nature, it is for the
purpose of determining whether or not there exist sufficient ground for the filing of information;

The preliminary investigation conducted by the judge which is properly called PRELIMINARY
EXAMINATION is for the determination of probable cause for the issuance of warrant of arrest.
(P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642, March 6, 2002)

Is the presence of counsel in the preliminary investigation mandatory?

No. Preliminary investigation is a summary proceeding and is merely inquisitorial in nature. The
accused cannot yet invoke the full exercise of his rights.

Page 18 of 56
Cases: (A) Department of Justice vs. Teodulo Nano Alaon, G.R. No. 189596, April 23,
2014;

Tickler: This case discusses the authority of the Secretary of Justice to review the resolution of
the provincial or city prosecutor or chief state prosecutor upon petition by a proper party and
whether the letter narrating the events as regards the alleged crime sent by the mother of the
victim to the Secretary of Justice may be considered as a petiton for review.

Doctrine: Rule 112 Section 4 par. 5: 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 of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting anther
preliminary investigation, or to dismiss or move for dismissal of the complaint or information with
notice to the parties. The same rule shall apply in preliminary investigations conducted by the
officers of the Office of the Ombudsman.

Facts: Teodulo was charged before the Provincial Prosecutor of Camarines Norte for alleged rape
on three occasion by AAA, a minor. After the requisite preliminary investigation where Teodulo
was charged with rape, he filed a motion for reconsideration where the provincial prosecutor
charged Teodulo with acts of lasciviousness instead of rape.

The corresponding Information was filed before the Regional Trial Court presided by Judge Leo.
Unknown to Teodulo, BBB, the mother of AAA sent a letter to the Secretary of Justice narrating
what happened to AAA, who allegedly suffers from an intellectual disability. Thus, the Secretary
of Justice ordered the Provincial Prosecutor to forward the entire records of the case and to defer
the filing of the Information against Teodulo.

Thus, the assistant provincial prosecutor, on a mistaken belief that Teodulo filed a petition for
review with the DOJ, requested the withdrawal of the information against him. While the judge
found probable cause with the Information filed, he took into consideration Prosecutor Estrellado’s
letter and suspended the proceedings. He also ordered Estrellado to submit a copy of Teodulo’s
petition for review. When Prosecutor Estrellado realised his mistake, he filed a Manifestation
before the RTC that Teodulo did not in fact file a Petition for Review but was merely informed by
BBB that they sought the assistance of the DOJ Secretary by way of the letter.

Alarmed at this development, Teodulo moved to lift the suspension of proceedings and his
arraignment on the charge for acts of lasciviousness set, invoking his right to speedy trial. The
RTC granted the motion. Prosecutor Estrellado, confused, withdrew his appearance before the
case, in view of the directive by the DOJ. The RTC denied this order, citing the withdrawal of
appearance is not a proper remedy. The prosecutor then filed a Motion to Suspend Proceedings
which the RTC also denied and set the case for pre-trial.

Meantime, at the Department of Justice, the review process ended in the DOJ reversing the earlier
finding of acts of lasciviousness and directing the Office of the Provincial Prosecutor to file a case
for rape against Teodulo. Teodulo thus filed a petition for certiorari with the Court of Appeals.

The Court of Appeals ruled that the review of the resolution by the Secretary of Justice did not go
through the appeals process mandated by the DOJ, thus it should not have been treated as a
petition for review. The review therefore was made with grave abuse of discretion.

The Secretary of Justice elevated the case to the Supreme Court, invoking its power of review
over the orders and resolutions of the provincial and city prosecutors.

Issue: May the DOJ Secretary review the resolution of its prosecutors even without a petition for
review filed by any of the parties?

Page 19 of 56
Ruling: The Secretary of Justice did not abuse his discretion when he acted on the letter request
of BBB, the mother of the victim, AAA. There is no quarrel about the Secretary of Justice’s power
of review over the actions of his subordinates, specifically public prosecutors. This power of review
is encompassed in the Secretary of Justice’s authority of supervision and control over the bureaus,
offices, and agencies under him, subject only to specified guidelines.

Chapter 7, section 38, paragraph 1 of Executive Order No. 292 or The Administrative Code of
1987, defines the administrative relationship that is supervision and control:

SECTION 38. Definition of Administrative Relationships. —Unless otherwise expressly stated in

the Code or in other laws defining the special relationships of particular agencies, administrative
relationships shall be categorized and defined as follows:

(1) Supervision and Control. — Supervision and control shall include authority to act directly
whenever a specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; determine priorities in the execution of plans and
programs; and prescribe standards, guidelines, plans and programs. Unless a different meaning
is explicitly provided in the specific law governing the relationship of particular agencies, the word
“control” shall encompass supervision and control as defined in this paragraph.

In Noblejas v. Judge Salas, we defined control as the power (of the department head) to alter,
modify or nullify or set aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for that of the latter. The power of control implies
the right of the President (and, naturally, of his alter ego) to interfere in the exercise of such
discretion as may be vested by law in the officers of the national government, as well as to act in
lieu of such officers.

Founded on the power of supervision and control over his subordinates, we do not find abuse of
discretion, much more grave abuse of discretion, by the Secretary of Justice when he took
cognizance of BBB’s letter and treated it as a petition for review from the provincial prosecutor’s
resolution. It cannot be said that in this case, there was an “absence of a petition for review.”
There was in fact an appeal from the prosecutor’s resolution, although not as described in the
National Prosecution Service Rules on Appeal. There was, tersely put, an appeal that the Secretary
of Justice had ample power to act upon. In fact, the Secretary of Justice acted on the letter
request of BBB. What was done was not a motu propio review.”

Page 20 of 56
(B) Francisco S. Tatad vs. The Sandiganbayan, G.R. No. 72335-39, March 21, 1988;

Tickler: The court shed light in this issue when a complaint filed was not acted on within the
prescribed period by the Rules and worse, acted on exceedingly out of time.

Doctrine: Rule 112 Sec. 3(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no ground to continue with the investigation,
or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting
affidavits and documents.

Facts: Antonio de los Reyes filed a formal report with the Legal Panel, Presidential Security
Command (PSC), charging petitioner, who was then Secretary and Head of the Department of
Public Information, with alleged violations of Republic Act No. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act.

Apparently, no action was taken on said report. Five years later, it became publicly known that
petitioner had submitted his resignation as Minister of Public Information, which was subsequently
accepted by President Marcos. Antonio de los Reyes again filed a complaint with the same charges.

An investigation took place and a report was submitted, recommending the filing of charges for
graft and corrupt practices against the petitioner. Petitioner moved to dismiss the complaint
against him, claiming immunity, but was denied.

Five criminal information were filed with the Sandiganbayan against petitioner Tatad. A motion
to quash the information was made alleging that the prosecution deprived accused of due process
of law and of the right to a speedy disposition of the cases filed against him. It was denied hence
the appeal.

Issue: Whether the prosecution's long delay in the filing of these cases with the Sandiganbayan
had deprived petitioner of his constitutional right to due process and the right to a speedy
disposition of the cases against him.

Ruling: YES. Long delay in termination of the preliminary investigation by the Tanodbayan in the
instant case found to be violative of the constitutional right of the accused to due process; Undue
delay in the conduct of preliminary investigation cannot be corrected.

Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with
President Marcos. Secondly, departing from established procedures prescribed by law for
preliminary investigation, which require the submission of affidavits and counter-affidavits by the
complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to
the Presidential Security Command for finding investigation and report. The long delay in resolving
the case under preliminary investigation cannot be justified on the basis of the facts on record.

The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under
preliminary investigation by him from its termination. Though the period fixed by law is merely
"directory," it cannot be disregarded or ignored completely, with absolute impunity. A delay of
close to three (3) years cannot be deemed reasonable or justifiable in the light of the circumstance
obtaining in the case at bar.

Page 21 of 56
(C) People vs. Maximo A. Borje, Jr., G.R. No. 170046, December 10, 2014;

Tickler: This case is a petition for review under Rule 45 of the Rules of Court seeking to reverse and
set aside the Resolutions of the Sandiganbayan in Criminal Case dismissing the same for lack of
probable cause for the crime of plunder without prejudice to the filing of appropriate charges against
respondents.

Doctrine: There are two kinds of determination of probable cause: executive and judicial.

Executive determination of probable cause ascertains whether a criminal case must be filed in court.

It is a function that... properly pertains to the public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge those whom he believes to have committed
the crime as defined by law and should be held for trial.

Judicial determination of probable cause ascertains whether a warrant of arrest should be issued
against the accused. It is one made by a judge who must satisfy himself that based on the evidence
presented, there is necessity in placing the accused under custody so that the ends... of justice will
not be frustrated.

Facts: On January 9, 2002, the Secretary of the Department of Public Works and Highways (DPWH),
Simeon Datumanong, issued Department Order No. 15, Series of 2002, creating a committee for the
purpose of investigating alleged anomalies and illegal disbursements in connection with the... repair
of DPWH-owned motor vehicles and equipment. As a result of the investigation, it was discovered that
during the period of March 2001 to December 2001, the emergency repairs conducted on hundreds of
DPWH vehicles, approved and paid for by the government, did not actually take place, resulting in the
loss of about One Hundred Thirty-Nine Million Pesos

Atty. Irene D. Ofilada, of the Internal Audit Service of the DPWH and member of the committee, filed
with the Office of the Ombudsman a criminal complaint for violation of

General Appropriations Act against the several officials/employees of the DPWH, including respondents
herein.

Thereafter, respondents filed their responsive pleadings essentially assailing the Ombudsman's finding
of probable cause.

Sandiganbayan issued an Order giving respondents a period within which to submit their memoranda
of... authority.

petitioner questioned the authority of the Sandiganbayan to act on respondents' motions, arguing that
the same had not yet acquired jurisdiction over the persons of the respondents and, hence, it... had
no authority to hear and decide their motions. Petitioner also alleged that it successfully established
probable cause justifying the issuance by the respondent court of a warrant of arrest.

Sandiganbayan issued the assailed Resolution[9] upholding its authority to act on respondents'
motions for their filing of the same may be considered as voluntary submission to the jurisdiction of
the court and dismissing the... case for lack of probable cause for the crime of plunder without prejudice
to the filing of appropriate charges against the accused-respondents. It ruled that as the records reveal,
not all elements of the crime are present for the accused Borje had not amassed ill-gotten wealth... of
at least P50 million. It further denied petitioner's Motion for Reconsideration in its Resolution... for lack
of merit.

Hence, the instant petition

Issue: THE EXECUTIVE FUNCTION OF DETERMINING THE EXISTENCE OF PROBABLE CAUSE FOR THE
FILING OF AN INFORMATION IS VESTED SOLELY IN THE PROSECUTION.

Ruling: Petitioner maintains that the preliminary investigation conducted by the Office of the
Ombudsman is an executive, not a judicial function. As such, it asserts that respondent Sandiganbayan
should have given deference to the finding and determination of probable cause in... their preliminary
investigation.

Moreover, petitioner faulted the respondent court for taking into consideration the findings of Atty.
Irene Ofilada of the Investigating Committee that it was not respondent Borje who encashed the checks

Page 22 of 56
but the respondent-suppliers,... by virtue of a blanket authority given by the former to the latter. It
posits that said findings cannot bind the Office of the Ombudsman in its determination of the existence
of probable cause.

Respondents counter that the respondent court correctly dismissed the case for the evidence clearly
shows the absence of certain elements of the crime. They maintain that while investigating officers
have a wide latitude of discretion in the determination of probable cause, which deserves respect from
the courts, the acts of the Ombudsman in disregarding essential pieces of evidence are tantamount to
an abuse of discretion authorizing the dismissal by the court of the case.

We rule in favor of petitioner.

There are two kinds of determination of probable cause: executive and judicial.

Executive determination of probable cause ascertains whether a criminal case must be filed in court.

It is a function that... properly pertains to the public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge those whom he believes to have committed
the crime as defined by law and should be held for trial.

Judicial determination of probable cause ascertains whether a warrant of arrest should be issued
against the accused. It is one made by a judge who must satisfy himself that based on the evidence
presented, there is necessity in placing the accused under custody so that the ends... of justice will
not be frustrated.

The determination of probable cause during the preliminary investigation, or reinvestigation for that
matter, is a function that belongs to the Office of the Ombudsman, which is empowered to determine,
in... the exercise of its discretion, whether probable cause exists, and to charge the person believed
to have committed the crime as defined by law.

It is well settled that courts do not interfere with the discretion of the Ombudsman to determine the
presence or absence of probable cause believing that a crime has been committed and that the accused
is probably guilty thereof necessitating the filing of the corresponding... information with the
appropriate courts.

This rule is based not only on respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. If it were otherwise, the
functions of... the Court will be seriously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be extremely swamped with cases

Thus, unless it is shown that the Ombudsman's finding of probable cause was done in a... capricious
and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion amounting to
lack or excess of jurisdiction, this Court will not interfere with the same.

Also, it would be unfair to expect the prosecution to present all the evidence needed to secure the
conviction of the accused upon the filing of the information against the latter. The reason is found in
the nature and objective of a preliminary investigation. Here, the public prosecutors do not decide
whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely
determine whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and that respondent is probably... guilty thereof and should be held for trial.

It has consistently been... held that there is grave abuse of discretion where power is exercised in an
arbitrary or despotic manner by reason of passion or hostility. The abuse must be so patent and gross
as to amount to an evasion of positive duty or to a virtual refusal to perform the duty or to act at... all
in contemplation of law.

The Ombudsman in this case, however, was merely performing his duty as mandated by the
Constitution and by law.

Page 23 of 56
(D) Ernesto M. De Chavez vs. Office of the Ombudsman, G.R. Nos. 168830-31, February
6, 2007;

Tickler: This case settles the controversy based on the contention of petitioner that the
Ombudsman committed grave abuse of discretion when they already ‘found petitioners liable for
the criminal offense’.

Doctrine: A preliminary investigation is merely inquisitorial, and it is often the only means of
discovering the persons who may be reasonably charged with a crime, to enable the prosecutor
to prepare his complaint or information. It is not a trial of the case on the merits and has no
objective except that of determining whether a crime has been committed and whether there is
probable cause to believe that the respondent is guilty thereof. In the conduct of preliminary
investigation, the prosecutor does not decide whether there is evidence beyond reasonable doubt
of the guilt of respondent. A prosecutor merely determines the existence of probable cause, and
to file the corresponding information if he finds it to be so.

Facts:

Administrative complaints in connection with "CODE OF CONDUCT AND ETHICAL STANDARDS

FOR PUBLIC OFFICIALS AND EMPLOYEES" were filed against BSU President Ernesto De Chavez,
together with other employees of said campus. Subsequently, a criminal complaint for violation
of "ANTI-GRAFT AND CORRUPT PRACTICES ACT," was also filed against them. The Ombudsman
issued a Resolution charging the petitioner for the said violations, employing the word “liable
for..” in which case contending that the former already ruled on their guilt.

Issue: RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION

AND ACTED WITHOUT JURISDICTION IN FINDING PETITIONERS ALREADY LIABLE FOR CRIMINAL
OFFENSES.

Ruling: We reject the foregoing asseverations. Petitioners make mountain on the use of the
words "liable for violation x x x" employed by the Ombudsman. A review of the specific powers
of the Ombudsman under the Constitution, the laws and jurisprudential pronouncements is in
order. By virtue of this power,[23] it may conduct a preliminary investigation for the mere purpose
of determining whether there is a sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be held for trial.
A preliminary investigation is merely inquisitorial, and it is often the only means of discovering
the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare
his complaint or information. It is not a trial of the case on the merits and has no objective except
that of determining whether a crime has been committed and whether there is probable cause to
believe that the respondent is guilty thereof.[25] In the conduct of preliminary investigation, the
prosecutor does not decide whether there is evidence beyond reasonable doubt of the guilt of
respondent. A prosecutor merely determines the existence of probable cause, and to file the
corresponding information if he finds it to be so.[26]

the presumption that the Ombudsman knows whereof he speaks forcefully applies. We must then
presume that he is well aware of the extent and limitations of his powers. Thus, when
Ombudsman Marcelo used the words "liable for" in his Supplemental Resolution of 12 July 2005,
he is presumed to have used these within the sense of the limited power vested in him by our
laws and jurisprudence - the finding of probable cause.

We, then, conclude that the words "liable for" employed by the Ombudsman in the challenged
resolution really alluded only to the probability of guilt. They simply imply that the Ombudsman
had found probable cause to hold petitioners liable for the crimes imputed and, thus, should be
held liable for trial in the courts of law. It is not a declaration of guilt.

Page 24 of 56
(E) Saturnino C. Ocampo vs. Hon. Ephrem S. Abando, G.R. No. 176830, February 11,
2014;
Tickler: These are petitions for certiorari and prohibition seeking the annulment of the orders and resolutions of
public respondents with regard to the indictment and issuance of warrants of arrest against petitioners for the
crime of multiple murder.

Doctrine: It is enough that the judge personally evaluates the prosecutors report and supporting documents
showing the existence of probable cause for the indictment and, on the basis thereof, issue a warrant of arrest; or
if, on the basis of his evaluation, he finds no probable cause, to disregard the prosecutor's resolution and require
the submission of additional affidavits of witnesses to aid him in determining its existence. Delos Santos-Reyes v.
Montesa, Jr. 317 Phil. 101

Facts: On 26 August 2006, a mass grave was discovered by elements of the 43rd Infantry Brigade of the Philippine
Army at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte. The mass grave contained skeletal remains of
67 individuals believed to be victims of "Operation Venereal Disease" (Operation VD) launched by members of the
Communist Party of the Philippines/New Peoples Army/National Democratic Front of the Philippines
(CPP/NPA/NDFP) to purge their ranks of suspected military informers.

P C/Insp. Almaden of the (PNP) Regional Office 8 and Staff Judge Advocate Captain Allan Tiu (Army Captain Tiu)
of the 8th Infantry Division of the Philippine Army sent 12 undated letters to the Provincial Prosecutor of Leyte
through Assistant Provincial Prosecutor Rosulo U. Vivero (Prosecutor Vivero).The letters requested appropriate
legal action on 12 complaint-affidavits attached therewith accusing 71 named members of the Communist Party
of the Philippines/New Peoples Army/National Democratic Front of the Philippines (CPP/NPA/NDFP) of murder,
including petitioners herein along with several other unnamed members.

Also attached to the letters were the affidavits of Zacarias Piedad,Leonardo C. Tanaid, Floro M. Tanaid, Numeriano
Beringuel, Glecerio Roluna and Veronica P. Tabara. They narrated that they were former members of the
CPP/NPA/NDFP.According to them, Operation VD was ordered in 1985 by the CPP/NPA/NDFP Central
Committee.Allegedly, petitioners Saturnino C. Ocampo (Ocampo),Randall B. Echanis (Echanis),Rafael G. Baylosis
(Baylosis),and Vicente P. Ladlad (Ladlad)were then members of the Central Committee.

From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured and executed by members of the
CPP/NPA/NDF pursuant to Operation VD.

On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a subpoena requiring, among others,
petitioners to submit their counter-affidavits and those of their witnesses. Petitioner Ocampo submitted his
counter-affidavit. Petitioners Echanisand Baylosis did not file counter-affidavits because they were allegedly not
served the copy of the complaint and the attached documents or evidence. Counsel of petitioner Ladlad made a
formal entry of appearance on 8 December 2006 during the preliminary investigation. However, petitioner Ladlad
did not file a counter-affidavit because he was allegedly not served a subpoena.

In a Resolution, Prosecutor Vivero recommended the filing of an Information for 15 counts of multiple murder
against 54 named members of the CPP/NPA/NDFP, including petitioners herein.

Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid, Numeriano Beringuel and Glecerio
Roluna be dropped as respondents and utilized as state witnesses, as their testimonies were vital to the success
of the prosecution.

The Information was filed before the (RTC) of Hilongos, Leyte, Branch 18 (RTC Hilongos, Leyte) presided by Judge
Ephrem S. Abando (Judge Abando).

On 6 March 2007, Judge Abando issued an Order finding probable cause "in the commission by all mentioned
accused of the crime charged." He ordered the issuance of warrants of arrest against them with no recommended
bail for their temporary liberty.

On 16 March 2007, petitioner Ocampo filed a special civil action for certiorari and prohibition under Rule 65 of the
Rules of Court seeking the annulment of the 6 March 2007 Order of Judge Abando and the Resolution of Prosecutor
Vivero.The petition prayed for the unconditional release of petitioner Ocampo from PNP custody, as well as the
issuance of a temporary restraining order/ writ of preliminary injunction to restrain the conduct of further
proceedings during the pendency of the petition.

Petitioner Ocampo argued that a case for rebellion against him and 44 others (including petitioners Echanis and
Baylosisand Ladlad) was then pending before the RTC Makati, Branch 150 (RTC Makati). Putting forward the
political offense doctrine, petitioner Ocampo argues that common crimes, such as murder in this case, are already
absorbed by the crime of rebellion when committed as a necessary means, in connection with and in furtherance
of rebellion.

While the proceedings were suspended, petitioner Echanis was arrested by virtue of the warrant of arrest issued
by Judge Abando. On 1 February 2008, petitioners Echanis and Baylosis filed a Motion for Judicial Reinvestigation/

Page 25 of 56
Determination of Probable Cause with Prayer to Dismiss the Case Outright and Alternative Prayer to Recall/
Suspend Service of Warrant.

Judge Abando issued an Order denying the motion. Petitioners Echanis and Baylosis filed a Motion for
Reconsideration but before being able to rule thereon, Judge Abando issued an Order transmitting the records of
Criminal Case to the Office of the Clerk of Court, RTC Manila.

Petitioner Ladlad and Baylosis filed an Urgent Motion to Fix Bail and a Motion to Allow Petitioner to Post Bail
respectively. The OSG interposed no objection to the grant of aP100,000 cash bail to them. The Court granted the
motions of petitioners Ladlad and Baylosis and fixed their bail in the amount ofP100,000, subject to the condition
that their temporary release shall be limited to the period of their actual participation in the peace negotiations

Issue: Were petitioners denied due process during preliminary investigation and in the issuance of the warrant of
arrest?

Ruling: "The essence of due process is reasonable opportunity to be heard and submit evidence in support of
one's defense." What is proscribed is lack of opportunity to be heard. Thus, one who has been afforded a chance
to present one's own side of the story cannot claim denial of due process.

Majority of the respondents did not submit their counter-affidavits because they could no longer be found in their
last known address, per return of the subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim,
Maureen Palejaro and Ruben Manatad submitted their Counter-Affidavits. However, Vicente Ladlad and Jasmin
Jerusalem failed to submit the required Counter Affidavits in spite entry of appearance by their respective counsels.

Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve the complaint based on the
evidence before him if a respondent could not be subpoenaed. As long as efforts to reach a respondent were made,
and he was given an opportunity to present countervailing evidence, the preliminary investigation remains valid.

In this case, the Resolution stated that efforts were undertaken to serve subpoenas on the named respondents at
their last known addresses. This is sufficient for due process. It was only because a majority of them could no
longer be found at their last known addresses that they were not served copies of the complaint and the attached
documents or evidence.

Petitioner Ladlad, through his counsel, had every opportunity to secure copies of the complaint after his counsels
formal entry of appearance and, thereafter, to participate fully in the preliminary investigation. Instead, he refused
to participate.

Neither can we uphold petitioner Ocampo’s contention that he was denied the right to be heard. For him to claim
that he was denied due process by not being furnished a copy of the Supplemental Affidavit of Zacarias Piedad
would imply that the entire case of the prosecution rested on the Supplemental Affidavit. The OSG has asserted
that the indictment of petitioner Ocampo was based on the collective affidavits of several other witnesses attesting
to the allegation that he was a member of the CPP/NPA/NDFP Central Committee, which had ordered the launch
of Operation VD.

Article III, Section 2 of the Constitution provides that "no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce."

Petitioner Ocampo alleges that Judge Abando did not comply with the requirements of the Constitution in finding
the existence of probable cause for the issuance of warrants of arrest against petitioners.

Probable cause for the issuance of a warrant of arrest has been defined as "such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person
sought to be arrested." Allado v. Diokno, G.R. No. 113630, May 5, 1994.Although the Constitution provides that
probable cause shall be determined by the judge after an examination under oath or an affirmation of the
complainant and the witnesses, we have ruled that a hearing is not necessary for the determination thereof. In
fact, the judge’s personal examination of the complainant and the witnesses is not mandatory and indispensable
for determining the aptness of issuing a warrant of arrest.

It is enough that the judge personally evaluates the prosecutors report and supporting documents showing the
existence of probable cause for the indictment and, on the basis thereof, issue a warrant of arrest; or if, on the
basis of his evaluation, he finds no probable cause, to disregard the prosecutor's resolution and require the
submission of additional affidavits of witnesses to aid him in determining its existence. Delos Santos-Reyes v.
Montesa, Jr. 317 Phil. 101

The determination of probable cause for the issuance of warrants of arrest against petitioners is addressed to the
sound discretion of Judge Abando as the trial judge.

Page 26 of 56
(F) Alfredo T. Romualdez vs. The Honorable Sandiganbayan, G.R. No. 161602, July 13,
2010

Tickler: This case is about the Ombudsman's authority to conduct preliminary investigation in a forfeiture
case where the petitioner allegedly amassed ill-gotten wealth before February 25, 1986.

Doctrine: 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 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 unscrupulous respondents to thwart the prosecution of
offenses by hiding themselves or by employing dilatory tactics."

Facts: On March 6, 1996 respondent Republic of the Philippines (Republic) filed an action for the forfeiture
of alleged unlawfully acquired property with the Sandiganbayan against petitioner Alfredo T. Romualdez and
his wife Agnes Sison Romualdez as well as against Romson Realty, Inc., R & S Transport, Inc., Fidelity
Management, Inc., and Dio Island Resort, Inc. (collectively, the Romualdezes) pursuant to Republic Act
(R.A.) 1379.

On March 31, 2003 the Romualdezes next filed a motion for preliminary investigation and to suspend
proceedings. They claim that since the case was a forfeiture proceeding filed under R.A. 1379, the
Ombudsman should have first conducted a "previous inquiry similar to preliminary investigations in criminal
cases" before the filing of the case pursuant to Section 2 of the law.

Republic pointed out that the Office of the Ombudsman in fact conducted such a preliminary investigation in
1991 in OMB-0-91-0820[5] and issued on January 22, 1992 a resolution, recommending the endorsement
of the matter to the Office of the Solicitor General (OSG) for the filing of the forfeiture case.

Sandiganbayan issued a resolution, denying the Romualdezes' motion. It also denied by resolution on
December 3, 2003 their subsequent motion for reconsideration. Thus, the Romualdezes filed the present
petition for certiorari and prohibition, seeking to annul the Sandiganbayan's rulings and prevent it from
further proceeding with the case until another preliminary investigation is conducted in their case.

Issue: Whether or not the preliminary investigation that the Ombudsman conducted in OMB-0-91-0820 in
1991 satisfied the requirement of the law in forfeiture cases.

Ruling: The Ombudsman has also under its general investigatory powers the authority to investigate
forfeiture cases where the alleged ill-gotten wealth had been amassed before February 25, 1986.

Although it was the Ombudsman who conducted the preliminary investigation, it was the OSG that instituted
the action in the case in line with the Court's ruling in the above-cited Republic and other cases that followed.

The Court cannot also subscribe to the Romualdezes' claim that they are entitled to a new preliminary
investigation since they had no opportunity to take part in the one held in 1991, in OMB-0-91-0820. They
admit that the subpoena for that investigation had been sent to their last known residence at the time it
was conducted. The Republic categorically insists that the appropriate subpoena had been served on the
Romualdezes.

Actually, the lament of the spouses was that they left the Philippines because of danger to their lives after
the EDSA revolution of February 1986 and so could not take part in the proceedings against them. While it
is true that the Court characterized the departure of the Romualdezes as forced upon them by the uncertainty
of the situation in 1986, it also said that such was the case only until things shall have stabilized. The Court
will take judicial notice of the fact that the people's ratification of the 1987 Constitution on February 2, 1987
signaled the return to normalcy of the political situation in the Philippines. Consequently, the Romualdezes
had no valid excuse for not responding to the subpoena served on them at their last known address in 1991,
which they do not deny having received.

The Ombudsman could not be faulted for proceeding with the investigation of the Romualdezes' cases when
they did not show up despite notice being sent to them at their last known residence.

In sum, no reason exists for suspending or interrupting the conduct of the forfeiture proceedings before the
Sandiganbayan.

WHEREFORE, the Court DISMISSES the petition for lack of merit.

Page 27 of 56
6. Resolution of investigating prosecutor; probable cause;

Section 4. Resolution of investigating prosecutor and its review. — If the

investigating prosecutor finds cause to hold the respondent for trial, he shall prepare
the resolution and information. He shall certify under oath in the information that he,
or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a crime
has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10) days from their
receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor

without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists,
the latter may, by himself, file the information against the respondent, or direct any
other assistant 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 proprio, the Secretary of Justice reverses or modifies the resolution
of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting
another preliminary investigation, or to dismiss or move for dismissal of the complaint
or information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. (4a)

What is probable cause?

Probable cause is the existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted.

An apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably
intelligent and prudent man to believe that the accused person had committed the crime charged.

What degree of proof is necessary to warrant the filing of an information or complaint

in court?

Probable cause. It need not be based on evidence establishing guilt beyond reasonable doubt but
only such as may engender a well-founded belief that an offense has been committed and that
the accused is probably guilty thereof.

Who may conduct the determination of probable cause?

It depends

Page 28 of 56
THE FISCAL OR PROSECUTOR (Executive Function), if the determination of probable cause
is for purposes of indictment; such finding will not be disturbed by the court unless there is finding
of grave abuse of discretion; if for the purpose of determining whether there is reasonable ground
to believe that the accused has committed the offense and should be held for trial.

THE COURT (Judicial Function), if the determination of probable cause is for the purposes of
issuance of warrant of arrest.

Can the accused file a motion to quash based on insufficiency of evidence?

No. He cannot pre-empt trial by filing a motion to quash on the ground of insufficiency of
evidence. Whether the function of determining probable cause has been correctly discharged by
the prosecutor is a matter that the trial court itself does not and may not pass upon.

How does the investigating prosecutor resolve the findings after preliminary
investigation?

1. If he finds probable cause to hold the respondent for trial, he shall prepare a resolution and
certify under oath in the information that:

a. he or an authorized has personally examined the complainant and his witnesses;

b. that there is reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof;

c. that the accused was informed of the complaint and evidences against him;

d. that he was given opportunity to submit controverting evidence

2. If he finds no probable cause, he shall recommend the dismissal of the complaint

3. Within 5 days from his resolution, he shall forward the record of the case to the provincial or
city prosecutor of chief state Prosecutor of the Ombudsman. They shall act on the resolution
within 10 days from receipt and shall immediately inform the parties of such action.

4. No complaint of information may be filed or dismissed by an investigating prosecutor without

the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor
or the Ombudsman.

5. If the investigating prosecutor recommends the dismissal of the complaint, but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or
Ombudsman on the ground that probable cause exists, the latter may either:

a. by himself, file the information; or

b. direct another assistant prosecutor to file the information without need for a new
preliminary investigation.

6. The Secretary of Justice may, upon petition by a proper party or by itself, reverse or modify
the resolution of the provincial or city prosecutor, the chief state prosecutor, or the ombudsman.
In such a case, he shall direct the prosecutor concerned to either file the information without need
for a new preliminary investigation or to dismiss or move for its dismissal if already filed in court.

Are the findings or resolution of the investigating prosecutor final?

No, the resolution of the investigating prosecutor is merely recommendatory. No complaint or

information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy (Sec. 4).
Page 29 of 56
 What is the rule when the recommendation for dismissal by the investigating
prosecutor is disapproved?

If the recommendation of the investigating prosecutor is disapproved by the provincial or city

prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a
probable cause exists, the latter, may by himself, file the information against the respondent, or
direct another assistant prosecutor or state prosecutor to do so without conducting another
preliminary investigation (Sec. 4)

What is the rule when the resolution is reversed or modified by the Secretary of
Justice?

If upon petition by a proper party or motu proprio, the Secretary of Justice reverses or modifies
the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or information with
notice to the parties (Sec. 4)

What is the effect of the filing of a petition for review before the DOJ if the
information was already filed in court?

Should the information be already filed in court but the accused filed a petition for review of the
findings of the prosecutors with the DOJ, the court is bound to suspend the arraignment of the
accused for a period not exceeding 60 days (Sec. 11, Rule 116).

NOTE: Under the present Rules, once a petition for review is filed before the DOJ after the
information is filed in court, only a motion for suspension of the proceedings in view of the
pendency of the petition for review before the DOJ may be filed which must be made
before arraignment. The suspension of the proceedings before the court would only last
for 60 days reckoned from the date of the filing of the petition for review.

Are there instances where a new preliminary investigation is not necessary?

Yes, when:

1. amendment to information is not substantial (Villaflor v. Vivar, G.R. No. 134744, Jan. 16,
2001);

2. the court orders the filing of correct information involving a cognate offense (Sy Lim v. CA, G.
R. No. L-37494, Mar. 30,1982); and

3. 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 to another would reveal (Orquinaza v.
People, G.R. No. 165596, Nov. 15, 2005; Herrera, Vol. IV, p. 281, 2007 ed.)

Page 30 of 56
Cases: (A) Barry Lanier vs. People, G.R. No. 189176, May 19, 2014;

Tickler: This case is a petition for review of the decision and resolution of the Court of Appeals
reversing the Department of Justice (DOJ) Resolutions which nullified the provincial prosecutor's
Resolution finding probable cause to indict petitioners for illegal possession of prohibited drugs
and the Regional Trial Court's (RTC) Order granting the Motion to Withdraw the Information.

Doctrine: While the determination of probable cause is primarily an executive function, the Court
would not hesitate to interfere if there is a clear showing that Secretary of Justice gravely abused
his discretion amounting to lack or excess of jurisdiction in making his determination and in
arriving at the conclusion he reached.

Facts: The police operatives conducted a test-buy at petitioners’ residence in Barangay Balabag,
Boracay Island where they were able to purchase P5,000.00 worth of shabu and P1,000.00 worth
of marijuana from petitioners. On the basis of the test-buy operation, they were able to secure a
search warrant from the RTC of Aklan.

A Receipt for Property Seized was prepared by SPO1 Nathaniel A. Tan, but petitioners refused to
sign the same. Thereafter, petitioners were placed under arrest. The assistant prosecutor of Kalibo
filed an Information charging the petitioners. The petitioners filed a Motion to Quash the
Information before the RTC of Kalibo but the RTC denied the motion and remanded the case to
the provincial prosecutor for preliminary investigation. The prosecutor upheld the Information and
directed the return of the records to the RTC for disposition.

Petitioners filed a petition for review before the DOJ. The Sec. of Justice favored the petitioner on
the belief that the evidences seized were planted. The secretary, in a Resolution, directed the
prosecutor to withdraw the Information before the RTC. RTC then granted the Motion to Withdraw
Information by the prosecutor.

OSG filed to the CA a petition for certiorari seeking to annul the Resolution of the DOJ. The CA
found probable cause to sustain the petitioners’ indictment and reinstated the Information against
the petitioners. CA nullified and set aside the DOJ Resolution and the Order of the RTC.

Issue: WoN the CA erred in reversing the DOJ resolution which nullified the prosecutor’s
resolution finding probable cause to indict petitioners for illegal possession of prohibited drugs
and the RTC Order granting the Motion to Withdraw the Information.

Ruling: No. The CA did not commit any reversible error.

In Crespo v Mogul, the Court held that once a criminal Complaint or Information is filed in court,
any disposition of the case, dismissal, acquittal or conviction rests within the exclusive
jurisdiction, competence, and discretion of the trial court. The rule applies to a Motion of the
public prosecutor to dismiss the case even before or after the arraignment of the accused.

When the Secretary of Justice made a determination and concluded that the evidences were
planted, he went into the merits of the defense and exceeded his jurisdiction.

On the part of the RTC, it having acquired jurisdiction over the case, is not bound by the Resolution
of the DOJ but is required to evaluate it before proceeding further with the trial. While the
Secretary’s ruling is persuasive, it is not binding on courts.

Page 31 of 56
(B) Hasegawa vs. Giron, G.R. No. 184536, August 14, 2013;
Tickler: This petition for review on certiorari seeks to nullify the Decision and Resolution of the Court of Appeals. The
appellate court reversed and set aside the Resolutions of the Department of Justice (DOJ), which dismissed respondent
Leila F. Giron's complaint for kidnapping and serious illegal detention against petitioner Masayuki Hasegawa.

Doctrine: The grant by the Court of Appeals of the certiorari petition is a determination that the DOJ committed grave
abuse of discretion amounting to lack or excess of jurisdiction in dismissing the criminal complaint for kidnapping and
serious illegal detention for lack of probable cause.

Facts: Respondent (Giron) filed a Complaint- Affidavit for Kidnapping and Serious Illegal Detention against petitioner and
several John Does. Respondent alleged that she and her officemate, Leonarda Marcos (Marcos) filed a complaint against
their employer Pacific Consultants International, J.F. Cancio & Associates, Jaime F. Cancio, Tesa Tagalo and petitioner for
illegal salary deductions, nonpayment of 13th month pay, and non-remittance of SSS contributions. Respondent averred
that since the filing of said complaint, they have been subjected to threats and verbal abuse by petitioner to pressure
them to withdraw the complaint.

Respondent had also filed separate complaints for grave threats, grave coercion, slander and unjust vexation against
petitioner. Said cases are pending before the Metropolitan Trial Court (MeTC) of Pasay City.

Respondent recalled that she received a call from an alleged messenger of her counsel who requested for a meeting at
Harrison Plaza Mall in Manila. She asked Marcos to accompany her. While respondent and Marcos were on their way to
Harrison Plaza Mall, they noticed a black Pajero car parked in the place where both of them work. When they reached the
mall, they went inside and they noticed two men following them. Respondent suddenly felt a man’s gun being pushed
against the right side of her body. She panicked and her mind went blank. Respondent and Marcos were taken at gunpoint
and pushed inside a black Pajero.

While inside the vehicle, they were blindfolded and gagged. They were taunted and repeatedly threatened by their
abductors into withdrawing the case against petitioner. When her blindfold was loosened, respondent was able to take a
good look at her surroundings. She noticed that the car was parked in a warehouse with concrete walls and high roof.
She also saw four vehicles parked outside. She finally saw three men wearing bonnets over their faces: the first one,
seated beside her; the second one, seated in front; and the third one, was standing near the parked vehicles.

Before respondent and Marcos were released, they were once again threatened by a man who said: “pag tinuloy nyo pa
kaso kay Hasegawa, may paglalagyan na kayo, walang magsusumbong sa pulis, pag nalaman namin na lumapit kayo,
babalikan namin kayo.” They were released at around 11:00 p.m. on 18 July 2006 and dropped off in Susana Heights in
Muntinlupa. In a separate Affidavit, Marcos corroborated respondent’s account of the alleged kidnapping.

Petitioner, in his Counter-Affidavit, denied the accusation of kidnapping and serious illegal detention against him.

In a Resolution, Senior State Prosecutor Emilie Fe M. De Los Santos dismissed the complaint for lack of probable cause.
Respondent filed an appeal before the DOJ. Finding no basis to overturn the findings of the Investigating Prosecutor, then
Secretary of Justice Raul M. Gonzales dismissed the petition.

Respondent’s motion for reconsideration having been denied by the DOJ, she filed a petition for certiorari before the Court
of Appeals. The Court of Appeals granted the petition, reversed and set aside the Resolutions of the DOJ and ordered the
filing of an Information for Kidnapping and Serious Illegal Detention.

Issue: WON THE COURT OF APPEALS COMMITTED GRIEVOUS ERROR IN RULING THAT RESPONDENT’S PETITION FOR
CERTIORARI IS THE PROPER MODE OF APPEAL FROM JUDGMENTS OF THE SECRETARY OF JUSTICE.

Ruling: No.

The elementary rule is that the Court of Appeals has jurisdiction to review the resolution issued by the DOJ through a
petition for certiorari under Rule 65 of the Rules of Court on the ground that the Secretary of Justice committed grave
abuse of his discretion amounting to excess or lack of jurisdiction.

The grant by the Court of Appeals of the certiorari petition is a determination that the DOJ committed grave abuse of
discretion amounting to lack or excess of jurisdiction in dismissing the criminal complaint for kidnapping and serious illegal
detention for lack of probable cause.

The decision whether or not to dismiss the criminal complaint against the accused depends on the sound discretion of the
prosecutor. Courts will not interfere with the conduct of preliminary investigations, or reinvestigations, or in the
determination of what constitutes sufficient probable cause for the filing of the corresponding information against an
offender. Courts are not empowered to substitute their own judgment for that of the executive branch. Differently stated,
as the matter of whether to prosecute or not is purely discretionary on his part, courts cannot compel a public prosecutor
to file the corresponding information, upon a complaint, where he finds the evidence before him insufficient to warrant
the filing of an action in court.

In sum, the prosecutor’s findings on the existence of probable cause are not subject to review by the courts, unless these
are patently shown to have been made with grave abuse of discretion. We find such reason for judicial review here
present. We sustain the appellate court’s reversal of the ruling of the Secretary of the DOJ.

Page 32 of 56
(C) People vs. Maximo A. Borje, Jr., G.R. No. 170046, December 10, 2014;

Tickler: This case is a petition for review under Rule 45 of the Rules of Court seeking to reverse and
set aside the Resolutions of the Sandiganbayan in Criminal Case dismissing the same for lack of
probable cause for the crime of plunder without prejudice to the filing of appropriate charges against
respondents.

Doctrine: There are two kinds of determination of probable cause: executive and judicial.

Executive determination of probable cause ascertains whether a criminal case must be filed in court.

It is a function that... properly pertains to the public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge those whom he believes to have committed
the crime as defined by law and should be held for trial.

Judicial determination of probable cause ascertains whether a warrant of arrest should be issued
against the accused. It is one made by a judge who must satisfy himself that based on the evidence
presented, there is necessity in placing the accused under custody so that the ends... of justice will
not be frustrated.

Facts: On January 9, 2002, the Secretary of the Department of Public Works and Highways (DPWH),
Simeon Datumanong, issued Department Order No. 15, Series of 2002, creating a committee for the
purpose of investigating alleged anomalies and illegal disbursements in connection with the... repair
of DPWH-owned motor vehicles and equipment. As a result of the investigation, it was discovered that
during the period of March 2001 to December 2001, the emergency repairs conducted on hundreds of
DPWH vehicles, approved and paid for by the government, did not actually take place, resulting in the
loss of about One Hundred Thirty-Nine Million Pesos

Atty. Irene D. Ofilada, of the Internal Audit Service of the DPWH and member of the committee, filed
with the Office of the Ombudsman a criminal complaint for violation of

General Appropriations Act against the several officials/employees of the DPWH, including respondents
herein.

Thereafter, respondents filed their responsive pleadings essentially assailing the Ombudsman's finding
of probable cause.

Sandiganbayan issued an Order giving respondents a period within which to submit their memoranda
of... authority.

petitioner questioned the authority of the Sandiganbayan to act on respondents' motions, arguing that
the same had not yet acquired jurisdiction over the persons of the respondents and, hence, it... had
no authority to hear and decide their motions. Petitioner also alleged that it successfully established
probable cause justifying the issuance by the respondent court of a warrant of arrest.

Sandiganbayan issued the assailed Resolution[9] upholding its authority to act on respondents'
motions for their filing of the same may be considered as voluntary submission to the jurisdiction of
the court and dismissing the... case for lack of probable cause for the crime of plunder without prejudice
to the filing of appropriate charges against the accused-respondents. It ruled that as the records reveal,
not all elements of the crime are present for the accused Borje had not amassed ill-gotten wealth... of
at least P50 million. It further denied petitioner's Motion for Reconsideration in its Resolution... for lack
of merit.

Hence, the instant petition

Issue: THE EXECUTIVE FUNCTION OF DETERMINING THE EXISTENCE OF PROBABLE CAUSE FOR THE
FILING OF AN INFORMATION IS VESTED SOLELY IN THE PROSECUTION.

Ruling: Petitioner maintains that the preliminary investigation conducted by the Office of the
Ombudsman is an executive, not a judicial function. As such, it asserts that respondent Sandiganbayan
should have given deference to the finding and determination of probable cause in... their preliminary
investigation.

Moreover, petitioner faulted the respondent court for taking into consideration the findings of Atty.
Irene Ofilada of the Investigating Committee that it was not respondent Borje who encashed the checks

Page 33 of 56
but the respondent-suppliers,... by virtue of a blanket authority given by the former to the latter. It
posits that said findings cannot bind the Office of the Ombudsman in its determination of the existence
of probable cause.

Respondents counter that the respondent court correctly dismissed the case for the evidence clearly
shows the absence of certain elements of the crime. They maintain that while investigating officers
have a wide latitude of discretion in the determination of probable cause, which deserves respect from
the courts, the acts of the Ombudsman in disregarding essential pieces of evidence are tantamount to
an abuse of discretion authorizing the dismissal by the court of the case.

We rule in favor of petitioner.

there are two kinds of determination of probable cause: executive and judicial.

executive determination of probable cause ascertains whether a criminal case must be filed in court.

It is a function that... properly pertains to the public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge those whom he believes to have committed
the crime as defined by law and should be held for trial.

judicial determination of probable cause ascertains whether a warrant of arrest should be issued
against the accused. It is one made by a judge who must satisfy himself that based on the evidence
presented, there is necessity in placing the accused under custody so that the ends... of justice will
not be frustrated.

the determination of probable cause during the preliminary investigation, or reinvestigation for that
matter, is a function that belongs to the Office of the Ombudsman, which is empowered to determine,
in... the exercise of its discretion, whether probable cause exists, and to charge the person believed
to have committed the crime as defined by law.

It is well settled that courts do not interfere with the discretion of the Ombudsman to determine the
presence or absence of probable cause believing that a crime has been committed and that the accused
is probably guilty thereof necessitating the filing of the corresponding... information with the
appropriate courts.

This rule is based not only on respect for the investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman but upon practicality as well. If it were otherwise, the
functions of... the Court will be seriously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be extremely swamped with cases

Thus, unless it is shown that the Ombudsman's finding of probable cause was done in a... capricious
and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion amounting to
lack or excess of jurisdiction, this Court will not interfere with the same.

Also, it would be unfair to expect the prosecution to present all the evidence needed to secure the
conviction of the accused upon the filing of the information against the latter. The reason is found in
the nature and objective of a preliminary investigation. Here, the public prosecutors do not decide
whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely
determine whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and that respondent is probably... guilty thereof and should be held for trial.

It has consistently been... held that there is grave abuse of discretion where power is exercised in an
arbitrary or despotic manner by reason of passion or hostility. The abuse must be so patent and gross
as to amount to an evasion of positive duty or to a virtual refusal to perform the duty or to act at... all
in contemplation of law.

The Ombudsman in this case, however, was merely performing his duty as mandated by the
Constitution and by law.

Page 34 of 56
(D) Cesar T. Villanueva vs. Mayor Felix V. Ople, G.R. No. 165125, November 18, 2005;

Tickler: This case is a Petition for Review under Rule 45 of the Rules of Court, assailing the Resolution and
the Order of the deputy ombudsman for Luzon. The challenged Resolution dismissed the present case against
respondents for lack of probable cause and denied petitioner’s motion for reconsideration.

Doctrine: The Court's review powers over resolutions and orders of the Office of the Ombudsman is
restricted only to determining whether grave abuse of discretion, that is, capricious or whimsical exercise of
judgment, has been committed. The Court is not authorized to correct every error or mistake allegedly
committed by that constitutionally independent government agency. Thus, absent any showing of grave
abuse of discretion, we have consistently sustained its determination of the existence or the nonexistence
of probable cause.

Facts: Petitioners Cesar T. Villanueva, Pedro S. Santos, and Roy C. Soriano filed a Joint Affidavit-Complaint
before the Office of the Ombudsman charging incumbent Mayor Felix V. Ople and Vice-Mayor Josefina R.
Contreras of Hagonoy, Bulacan, for violations of the "Anti-Graft and Corrupt Practices Act and the the Local
Government Code (LGC).

The Office of the Deputy Ombudsman for Luzon (OMB-Luzon) found no probable cause against respondents.

It noted that the charge was premised on allegedly illegal disbursements that had caused undue injury to
the government. Yet, petitioners failed to specify which disbursements had been made illegally. Besides,
there was no proof that the expenditures unduly benefited certain individuals or were made pursuant to the
regular operations of the municipality.

In denying petitioners' Motion for Reconsideration, the OMB-Luzon pointed out that the alleged undue injury
should have been specified, quantified, and proven to the point of moral certainty. It found no reason to set
the case for clarificatory hearings or to issue subpoenas.

Hence, this Petition.

Issue: Whether or not the remedy sought by petitioners was proper.

Ruling: The proper remedies in questioning decisions and resolutions of the Office of the Ombudsman (OMB)
have already been settled in a catena of cases.

Thus, petitioners committed a procedural error in resorting to a Petition for Review under Rule 45 of the
Rules of Court. To challenge the dismissal of their Complaint and to require the OMB to file an information,
petitioners should have resorted to a petition for certiorari under Rule 65 of the Rules of Court. The only
ground upon which this Court may entertain a review of the OMB's resolution is grave abuse of discretion,
not reversible errors.

A special civil action for certiorari is the proper remedy when a government officer has acted with grave
abuse of discretion amounting to lack or excess of jurisdiction; and there is no plain, speedy, and adequate
remedy in the ordinary course of law. But even assuming that the present Petition may be treated as one
for certiorari, the case must nevertheless be dismissed.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or
excess of jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by
reason of passion or personal hostility. It must have been so patent and gross as to amount to an evasion
of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.

In the present case, petitioners do not even allege that the OMB gravely abused its discretion in issuing its
questioned Resolution.

In any event, the Court finds no grave abuse in the manner in which the deputy ombudsman exercised his
discretion. Evidently, he had sufficient bases for his finding that there was no probable cause.

A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. The complainant
must adduce sufficient proof of guilt as basis for a criminal charge in court. As discussed earlier, the present
petitioners did not submit any proof in... support of their accusations against respondents.

Hence, the Court is bound to respect the deputy ombudsman's professional judgment in finding the case
dismissible, absent a showing of grave abuse of discretion. Government resources and the time and effort
of public officials would be needlessly wasted if the courts allow unmeritorious cases to be filed and given
due course. It would be better to dismiss a case, like the present one in which the circumstances blatantly
show that the act complained of does not constitute the offense charged.

Page 35 of 56
(E) Girlie M. Quisay vs. People, G.R. No. 216920, January 13, 2016;

Tickler: This case is a petition for review on certiorari of the Decision and the Resolution of the
Court of Appeals (CA), which affirmed the denial of petitioner Girlie M. Quisay's (petitioner) Motion
to Quash before the Regional Trial Court of Makati, Branch 144 (RTC).

Doctrine: SECTION 4. Resolution of investigating prosecutor and its review. - If the investigating
prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the accused is probably
guilty thereof; that the accused was informed of the complaint and of the evidence submitted
against him; and that he was given an opportunity to submit controverting evidence. Otherwise,
he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial
or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall
act on the resolution within ten (10) days from their receipt thereof and shall immediately inform
the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the

prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy.

Facts: Office of the City Prosecutor of Makati City (OCP-Makati) issued a Pasiya or Resolution
finding probable cause against petitioner for violation of "Special Protection of Children Against
Abuse, Exploitation and Discrimination Act." Consequently, a Pabatid Sakdal or Information was
filed before the RTC on January 11, 2013 charging petitioner of such crime.

Petitioner moved for the quashal of the Information against her on the ground of lack of authority
of the person who filed the same before the RTC.

In this regard, petitioner claimed that nothing in the aforesaid Pasiya and Pabatid Sakdal would
show that ACP De La Cruz and/or SACP Hirang had prior written authority or approval from the
City Prosecutor to file or approve the filing of the Information against her. As such, the
Information must be quashed for being tainted with a jurisdictional defect that cannot be cured.

The RTC denied petitioner's motion to quash for lack of merit. It found the Certification attached
to the Pabatid Sakdal to have sufficiently complied with Section 4, Rule 112 of the Rules of Court
which requires the prior written authority or approval by, among others, the City Prosecutor, in
the filing of Informations.

Petitioner moved for reconsideration, which was, however, denied in an Order. Aggrieved,
petitioner elevated the matter to the CA via a petition for certiorari.

The CA affirmed the RTC ruling. It held that the Certification made by ACP De La Cruz in the
Pabatid Sakdal clearly indicated that the same was filed after the requisite preliminary
investigation and with the prior written authority or approval of the City Prosecutor. In this regard,
the CA opined that such Certification enjoys the presumption of regularity accorded to a public
officer's performance of official functions, in the absence of convincing evidence to the contrary.

Issue: Whether or not the CA correctly held that the RTC did not gravely abuse its discretion in
dismissing petitioner's motion to quash.

Ruling: The petition is meritorious.

Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that the filing of a
complaint or information requires a prior written authority or approval of the named officers
therein before a complaint or information may be filed before the courts.

Page 36 of 56
Thus, as a general rule, complaints or informations filed before the courts without the prior written
authority or approval of the foregoing authorized officers renders the same defective and,
therefore, subject to quashal pursuant to Section 3 (d), Rule 117 of the same Rules, to wit:

SECTION 3. Grounds. - The accused may move to quash the complaint or information on any of
the following grounds:... x x x x

(d) That the officer who filed the information had no authority to do so;

In this relation, People v. Garfin firmly instructs that the filing of an Information by an officer
without the requisite authority to file the same constitutes a jurisdictional infirmity which cannot
be cured by silence, waiver, acquiescence, or... even by express consent. Hence, such ground
may be raised at any stage of the proceedings.

The CA correctly held that based on the wordings of Section 9 of RA 10071, which gave the City
Prosecutor the power to "[investigate and/or cause to be investigated all charges of crimes,
misdemeanors and violations of penal laws and ordinances within their respective jurisdictions,
and have the necessary information or complaint prepared or made and filed against the persons
accused," he may indeed delegate his power to his subordinates as he may deem necessary in
the interest of the prosecution service.

In this light, the Pasiya or Resolution finding probable cause to indict petitioner of the crime
charged, was validly made as it bore the approval of one of the designated review prosecutors
for OCP-Makati, SACP Hirang, as evidenced by his signature therein.

Unfortunately, the same could not be said of the Pabatid Sakdal or Information filed before the
RTC, as there was no showing that it was approved by either the City Prosecutor of Makati or any
of the OCP-Makati's division chiefs or review prosecutors. All it contained was a Certification from
ACP De La Cruz which stated, among others, that "DAGDAG KO PANG PINATUTUNAYAN na
angpaghahain ng sakdal na ito ay may nakasulat na naunang pahintulot o pagpapatibay ng
Panlunsod na Taga-Usig" - which translates to "and that... the filing of the Information is with the
prior authority and approval of the City Prosecutor."

In the cases of People v. Garfin, Turingan v. Garfin, and Tolentino v. Paqueo the Court had already
rejected similarly-worded certifications, uniformly holding that despite such certifications, the
Informations were defective as it was shown that the officers filing the same in court either lacked
the authority to do so or failed to show that they obtained prior written authority from any of
those authorized officers enumerated in Section 4, Rule 112 of the 2000 Revised Rules of Criminal
Procedure.

Here, aside from the bare and self-serving Certification, there was no proof that ACP De La Cruz
was authorized to file the Pabatid Sakdal or Information before the RTC by himself.

In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion to quash as the
Pabatid Sakdal or Information suffers from an incurable infirmity - that the officer who filed the
same before the RTC had no authority to do so. Hence, the

Pabatid Sakdal must be quashed, resulting in the dismissal of the criminal case against petitioner.

Page 37 of 56
(F) Richard A. Cambe v. Office of the Ombudsman, National Bureau of Investigation, et
al., G.R. No. 212014-14, December 6, 2016;

Tickler: These cases are consolidated petitions filed by petitioners Senator Ramon "Bong" Revilla,
Jr. (Sen. Revilla), Richard A. Cambe (Cambe), Janet Lim Napoles (Napoles or Janet Napoles),
John Raymund De Asis (De Asis), and Ronald John Lim (Lim), which commonly assail the Joint
Resolution and the Joint Order of the Office of the Ombudsman (Ombudsman) in finding probable
cause to indict them, along with several others, for the crimes of Plunder, defined and penalized
under Republic Act No. (RA) 7080, as amended.

Doctrine: Section 1. Preliminary investigation defined; when required. – Preliminary

investigation is an inquiry or proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial.

Facts: Petitioners are all charged as co-conspirators for their respective participations in the
illegal pillaging of public funds sourced from the Priority Development Assistance Fund (PDAF) of
Sen. Revilla for the years 2006 to 2010, in the total amount of P517,000,000.00.

As alleged, the PDAF scheme commences with Napoles meeting with a legislator -in this case,
Sen. Revilla -with the former giving an offer to "acquire" his PDAF allocation in exchange for a
"commission" or "kickback" amounting to a certain percentage of the PDAF. Upon their agreement
on the conditions of the PDAF acquisition, including the project for which the PDAF will be utilized,
the corresponding Implementing Agencies (IA) tasked to implement the same, and the legislator's
"commission" or "kickback" ranging from 40-60% of either the project cost or the amount stated
in the Special Allotment Release Order (SARO), the legislator would then write a letter addressed
to the Senate President for the immediate release of his PDAF, who in turn, will endorse such
request to the DBM for the release of the SARO.

By this time, the initial advance portion of the "commission" would be remitted by Napoles to the
legislator. Upon release of the SARO, Napoles would then direct her staff -including whistleblowers
Benhur Luy (Luy), Marina Sula (Sula), and Merlina Suñas (Suñas) -to prepare PDAF documents
containing, inter alia, the preferred JLN-controlled NGO that will be used as a "conduit" for the
implementation of the project, the project proposals of the identified NGO, and the endorsement
letters to be signed by the legislator and/or his staff, all for the approval of the legislator; and
would remit the remaining portion or balance of the "commission" of the legislator, which is
usually delivered by her staff, Lim and De Asis.

Once the documents are approved, the same would be transmitted to the IA which would handle
the preparation of the Memorandum of Agreement (MOA) to be executed by the legislator's office,
the IA, and the chosen NGO. Thereafter, the DBM would release the Notice of Cash Allowance
(NCA) to the IA concerned, the head/official of which, in turn, would expedite the transaction and
release of the corresponding check representing the PDAF disbursement, in exchange for a ten
percent (10%) share in the project cost.

Among those tasked by Napoles to pick up the checks and deposit them to the bank accounts of
the NGO concerned were Luy, Suñas, and De Asis. Once the funds are in the account of the JLN-
controlled NGO, Napoles would then call the bank to facilitate the withdrawal thereof. Upon
withdrawal of the said funds by Napoles's staff, the latter would bring the proceeds to the office
of JLN Corporation for accounting. Napoles would then decide how much will be left in the office
and how much will be brought to her residence in Taguig City.

De Asis, Lim, Luy, and Suñas were the ones instructed to deliver the money to Napoles's
residence. Finally, to liquidate the disbursements, Napoles and her staff would manufacture
fictitious lists of beneficiaries, liquidation reports, inspection reports, project activity reports, and
similar documents that would make it appear that the PDAF-funded projects were implemented
when, in fact, they were not since they were actually inexistent or, in other words, "ghost"
projects. Under this modus operandi, Sen. Revilla, with the help of petitioners, among others,
allegedly funneled his PDAF amounting to around P517,000,000.00 to the JLN-controlled NGOs
and, in return, received "commissions" or "kickbacks" amounting to at least P224,512,500.00.
Page 38 of 56
In his defense, Revilla filed his Counter-Affidavit dated January 16, 2014, contending that: (a)
his and Cambe's signatures in the PDAF documents were forgeries; (b) the utilization of his PDAF
had "always been regular and above-board."; (c) his involvement in the release of his PDAF is
limited; and (d) there is "no credible proof" to show that he committed said illegal acts and that
conspiracy exists between him and all the other persons involved in the PDAF scam.

Cambe, on the other hand, filed his Counter-Affidavit dated January 20, 2014 and Supplemental
Counter-Affidavit dated March 12, 2014, maintaining that: (a) his signatures in the PDAF
documents were all forgeries; and (b) he did not receive any money from Sen. Revilla's PDAF nor
connive with any of the alleged co-conspirators to acquire ill-gotten wealth.

In a Joint Resolution68 dated March 28, 2014 (March 28, 2014 Joint Resolution), the Ombudsman
found probable cause to indict, among others, petitioners Sen. Revilla, Cambe, Napoles, De Asis,
and Lim of one (1) count of Plunder, and all the petitioners (along with several others), except
Lim, of sixteen (16) counts of violation of Section 3 (e) of RA 3019.

Thus, the Ombudsman held that probable cause exists against Sen. Revilla, Cambe, Napoles, De
Asis, and Lim for Plunder, considering that: (a) Sen. Revilla was a public officer at the time
material to the charges; ( b) with the help of his co-accused, who are public officers and private
individuals, Sen. Revilla amassed, accumulated, or acquired HI-gotten wealth through their
intricate modus operandi as described above; and ( c) such ill-gotten wealth amounted to at least
P224,512,500.00, way more than the threshold amount of P50,000,000.00 required in the crime
of Plunder..

Cambe seeks to annul and set aside the Ombudsman's March 14, 2014 Joint Order which denied
his motion to suspend proceedings, arguing that the COA's issuance of an Order of Execution is
a condition precedent to the filing of the criminal complaints against him.

Sen. Revilla seeks to annul the March 28, 2014 Joint Resolution and the June 4, 2014 Joint Order
of the Ombudsman finding probable cause against him for the crimes charged. Among others,
Sen. Revilla faults the Ombudsman for allegedly disregarding his defense of forgery, and further
contends that in the absence of other competent testimony, the Ombudsman cannot consider the
whistle blowers' testimonies who purportedly were his co-conspirators in the PDAF scam, pursuant
to the res inter alias acta rule.

Napoles similarly seeks to nullify the Ombudsman's March 28, 2014 Joint Resolution and June 4,
2014 Joint Order finding probable cause against her for Plunder and for violation of Section 3 (e)
of RA 3019. Essentially, she argues that the complaints did not establish the specific acts of the
crimes she supposedly committed. She likewise contends that since she is not a public officer,
she cannot be subjected to prosecution by the Ombudsman before the Sandiganbayan.

Issues:

1. Whether the COA's issuance of an Order of Execution is a condition precedent to the filing
of the criminal complaints.

2. Whether the Ombudsman's finding of probable cause against all petitioners are correct

Ruling:

1. No. The Court disagrees. The administrative aspect of the cases against Cambe and Sen. Revilla
in relation to the COA's audit is clearly separate and distinct from the criminal aspect covering
the charges of Plunder and/or of violation of Section 3 (e) of RA 3019 against them. Hence, the
incidents related to it should have no effect on the filing of the latter.

Page 39 of 56
2. Yes, there is probable cause against the petitioners should therefore stand trial for the crimes
they were charged.

Probable Cause against Revilla.

The finding of probable cause against Sen. Revilla is amply supported by the evidence on record.
At the forefront are the PDAF documents, consisting of the written endorsements signed by Sen.
Revilla himself requesting the IAs to release his PDAF funds to the JLN-controlled NGOs, as well
as other documents that made possible the processing of his PDAF, e.g., the MOAs executed by
the legislator's office, the IA, and the chosen NGO.

All these documents -even those not actually signed by Sen. Revilla -directly implicate him for
the crimes charged, as they were nonetheless, all issued under the authority of his Office as
Senator of the Republic of the Philippines.

In Belgica v. Ochoa (Belgica), this Court observed that "the defining feature of all forms of
Congressional Pork Barrel would be the authority of legislators to participate in the post-
enactment phases of project implementation. At its core, legislators -may it be through project
lists, prior consultations or program menus -have been consistently accorded post-enactment
authority to identify the projects they desire to be funded through various Congressional Pork
Barrel allocations." It is through this mechanism that individual legislators, such as Sen. Revilla,
were able to practically dictate the entire expenditure of the PDAF allocated to their offices
throughout the years.

Anent Sen. Revilla's claim that his signatures in the documentary evidence presented were forged,
it must be emphasized that "the findings of the x x x prosecutor [on the issue of forgery) should
be ventilated in a full-blown trial[.] [This] is highlighted by the reality that the authenticity of a
questioned signature cannot be determined solely upon its general characteristics, or its
similarities or dissimilarities with the genuine signature. The duty to determine the authenticity
of a signature rests on the judge who must conduct an independent examination of the signature
itself in order to arrive at a reasonable conclusion as to its authenticity. Accordingly, Sen. Revilla's
evidence of forgery, including the findings of his purported handwriting experts, Rogelio G. Azores
(Azores) and Forensic Document Examiner Atty. Desiderio A. Pagui, (Pagui) cannot be readily
credited at this stage of the proceedings.

It is significant to emphasize that the Ombudsman had thoroughly passed upon the veracity of
Sen. Revilla's signatures on the PDAF documents. As explicitly stated in the March 28, 2014 Joint
Resolution: "[a]t all events, the Special Panel members, after a prima facie comparison with their
naked eyes of the questioned signatures appearing in the PDAF documents and the original
signatures of [Sen.] Revilla and Cambe in their respective counter-affidavits, opine that both sets
of signatures, which bear the same style and flourish, were written by one and the same hands.
Findings of fact by the Office of the Ombudsman are conclusive when supported by substantial
evidence, as in this case.

The testimonies of the whistleblowers -which the prosecution submitted before the Ombudsman
-are, in fact, the most integral evidence against Sen. Revilla, since they provide a detailed account
on the inner workings of the PDAF scam to which Sen. Revilla was directly involved. It should be
pointed out that, of all the Senators, only the Offices ' of Sen. Revilla, Sen. Juan Ponce Enrile
(Sen. Enrile ), and Sen. Jinggoy: Estrada (Sen. Estrada) were explicitly implicated to have dealt
with in the plunder of their PDAF.

Also, it is apparent that whistleblowers Suñas, Sula, and Luy had personal knowledge of the
conspiracy since they were employees of JLN Corporation -the epicenter of the entire PDAF
operation -and in their respective capacities, were individually tasked by to prepare the pertinent
documents, liquidate the financial transactions, follow up the release of the NCAs with the DBM,
and/or facilitate the withdrawal of PDAF funds deposited in the NGOs' accounts.

In any event, even if it is assumed that the rule on res inter alias acta were to apply during
preliminary investigation, the treatment of the whistleblowers' statements as hearsay is bound
by the exception on independently relevant statements. "Under the doctrine of independently
Page 40 of 56
relevant statements, regardless of their truth or falsity, the fact that such statements have been
made is relevant. The hearsay rule does not apply, and the statements are admissible as
evidence. Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be circumstantially relevant as to the existence
of such a fact. Undoubtedly, the testimonies of the whistleblowers are independently relevant to
prove the involvement of Sen. Revilla and his co-accused in the present controversy, considering
their respective participations in the entire PDAF scam.

Probable Cause against Cambe.

The same conclusion obtains with respect to the petition of Cambe in G.R. Nos. 212794-95
assailing the Ombudsman's finding of probable cause against him. is no dispute that Cambe was
Sen. Revilla's trusted aide, being his Chief of Staff. By such authority, he also exercised
operational control over the affairs of Sen. Revilla's office, including the allocation of his PDAF. In
fact, Cambe' s signatures explicitly appear on several PDAF documents, such as the MOAs allowing
the IAs to transfer Sen. Revilla's PDAF funds allocated for certain projects to various JLN-
controlled NGOs. Cambe was personally identified by the whistleblowers to have received PDAF
money for himself and for Sen. Revilla.

In simple terms, Cambe allegedly acted as a liaison between Sen. Revilla and Napoles. For the
same reasons above-discussed, there should be 'no valid objection against the appreciation of
the PDAF documents and whistle blowers' testimonies as evidence to establish probable cause
against Cambe at this stage of the proceedings. He also has no right to be furnished copies of the
counter-affidavits .of his co-respondents.

Probable Cause against Napoles.

Records clearly show that Napoles, in all reasonable likelihood, played an integral role in the illegal
utilization, diversion, and disbursement of Sen. Revilla's PDAF. In fact, she was tagged as the
mastermind of the PDAF scam.

Based on the evidence in support thereof such as the PDAF documents, whistleblowers'
testimonies, the accounts of the IA officials, and the COA report, as well as the field verifications
of the FIO, Ombudsman, this Court is convinced that there lies probable cause against Janet
Napoles for the charge of Plunder as it has been prima facie established that she, in conspiracy
with Sen. Revilla, Cambe, and other personalities, was significantly involved in the afore-
described modus operandi to obtain Sen. Revilla's PDAF amounting to at least P50,000,000.00 in
"kickbacks." In the same manner, there is probable cause against Napoles for violations of Section
3 (e) of RA 3019, as it is ostensible that their conspiracy to,illegally divert PDAF Funds to "ghost"
projects caused undue prejudice to the government. That a private individual, such as Napoles,
could not be charged for Plunder and violations of Section 3 ( e) of RA 3019 because the offenders
in those crimes are public officers is a complete misconception. It has been long-settled that while
the primary offender in the aforesaid crimes are public officers, private individuals may also be
held liable for the same if they are found to have conspired with said officers in committing the
same. This proceeds from the fundamental principle that in cases of conspiracy the act of one is
the act of all. In this case, since it appears that Napoles has acted in concert with public officers
in the pillaging of Sen. Revilla's PDAF, the Ombudsman correctly indicted her as a co-conspirator
for the aforementioned crimes.

WHEREFORE, the petitions are DISMISSED for lack of merit. The findings of probable cause
against all petitioners are hereby AFFIRMED and the Sandiganbayan, as trial court, is DIRECTED
to commence/continue with the necessary proceedings in these cases with deliberate dispatch.

Page 41 of 56
(G) Republic of the Philippines v. GMCC United Development Corp., et al., G.R. No.
191856, December 7, 2016

Tickler: This case is a Petition for Review on Certiorari assailing the Court of Appeals' Decision and
Resolution. The Court of Appeals affirmed the Resolution of the Department of Justice, which dismissed
the criminal complaint for tax evasion filed by the Bureau of Internal Revenue against GMCC United
Development Corporation's corporate officers on the ground that the period to assess the tax had
already prescribed.

Doctrine: To justify judicial intrusion into what is fundamentally the domain of the Executive, the
petitioner must clearly show that the prosecutor gravely abused his discretion amounting to lack or
excess of jurisdiction in making his determination and in arriving at the conclusion he reached. This
requires the petitioner to establish that the prosecutor exercised his power in an arbitrary and despotic
manner by reason of passion or personal hostility; and it must be so patent and gross as to amount to
an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law,
before judicial relief from a discretionary prosecutorial action may be obtained.

Facts: The Bureau of Internal Revenue National Investigation Division issued a Letter of Authority,
authorizing its revenue officers to examine the books of accounts and other accounting records of
GMCC United Development Corporation (GMCC) covering taxable years 1998 and 1999.

GMCC was served a copy of said Letter of Authority and was requested to present its books of accounts
and other accounting records. GMCC failed to respond to the Letter of Authority as well as the
subsequent letters requesting that its records and documents be produced.

Due to GMCC's failure to act on the requests, the Assistant Commissioner of the Enforcement Service
of the Bureau of Internal Revenue issued a Subpoena Duces Tecum on GMCC president, Jose C. Go
(Go). When GMCC still failed to comply with the Subpoena Duces Tecum, the revenue officers were
constrained to investigate GMCC through Third Party Information.

The investigation revealed that in 1998, GMCC, through Go, executed two dacion en pago agreements
to pay for the obligations of GMCC's sister companies, Ever Emporium, Inc., Gotesco Properties, Inc.
and Ever Price Club, Inc., to Rizal Commercial Banking Corporation. GMCC allegedly failed to declare
the income it earned from these agreements for taxation purposes in 1998.[12] Moreover, these
transactions constituted a donation in favor of GMCC's sister companies for which GMCC failed to pay
the corresponding donor's tax. The BIR also assessed the value added tax over the said transactions.

It was also discovered that in 1999, GMCC sold condominium units and parking slots for a total amount
of P5,350,000.00 to a Valencia K. Wong. However, GMCC did not declare the income it earned from
these transactions in its 1999 Audited Financial Statements.

Thus, on November 17, 2003, the Bureau of Internal Revenue issued a Notice to Taxpayer to GMCC,
which GMCC ignored.

It was only when the Bureau of Internal Revenue issued the Final Assessment Notice that GMCC
responded. In a Letter dated November 23, 2004, GMCC protested the issuance of the Final
Assessment Notice citing that the period to assess and collect the tax had already prescribed. The
Bureau of Internal Revenue denied the protest in a Final Decision.

In light of the discovered tax deficiencies, the Bureau of Internal Revenue, on October 7, 2005, filed
with the Department of Justice a criminal complaint for violation of the National Internal Revenue Code
against GMCC, its president, Jose C. Go, and its treasurer, Xu Xian Chun.

Department of Justice, through the Chief State Prosecutor, issued a Resolution dismissing the criminal
complaint against the GMCC officers. The State Prosecutor ruled that there was no proof that GMCC
defrauded the government. The Bureau went beyond its authority when it assessed and issued the
Letter of Authority knowing that the period to assess had already lapsed. Moreover, the prosecutor
ruled that since GMCC did not gain from the assailed transactions, the imposition of income, VAT, and
donor's taxes were improper.

Bureau of Internal Revenue filed a Motion for Reconsideration, which the Department of Justice denied

Page 42 of 56
Bureau of Internal Revenue filed before the Court of Appeals a Petition for Certiorari arguing that the
Department of Justice gravely abused its discretion in dismissing the criminal complaint against GMCC's
officers.

Court of Appeals denied the Petition and affirmed in toto the Department of Justice's Resolution.

Bureau of Internal Revenue moved for reconsideration, but it was denied.

Issue: Whether the Court of Appeals erred in declaring that the Secretary of Justice did not commit
grave abuse of discretion when he found no probable cause and dismissed the tax evasion case against
the respondent officers of GMCC.

Ruling: The Petition must be denied.

Court of Appeals committed no reversible error in affirming the ruling of the Secretary of Justice that
there was no probable cause to file a tax evasion case against the respondent officers. Since the
assessment for the tax had already prescribed, no proceeding in court on the basis of such return can
be filed.

In ruling that there was no probable cause to indict the respondent officers for the acts charged, the
Court of Appeals said there was no clear showing that there was deliberate intent on the part of the
respondents to evade payment of the taxes. Both the State Prosecutor and the Court of Appeals
emphasized that if respondents really intended to evade payment, they would have omitted the
assailed transactions completely in all their financial statements. We agree.

As it stands, while the dacion en pago transactions were missing in the GMCC 1998 Financial
Statement, they had been listed in the GMCC 2000 Financial Statement. Respondents' act of filing and
recording said transactions in their 2000 Financial Statement belie the allegation that they intended to
evade paying their tax liability. Petitioner's contention that the belated filing is a mere afterthought
designed to make it appear that the non--reporting was not deliberate, does not persuade considering
that the filing of the 2000 Financial Statement was done prior to the issuance of the March 2003 Letter
of Authority, which authorized the investigation of GMCC's books.

In any case, this Court has a policy of non-interference in the conduct of preliminary investigations.

Moreover, a prosecutor's grave abuse of discretion in dismissing a case must be clearly shown before
the Courts can intervene.

The necessary component of the Executive's power to faithfully execute the laws of the land is the
State's self-preserving power to prosecute violators of its penal laws. This responsibility is primarily
lodged with the DOJ, as the principal law agency of the government. The prosecutor has the
discretionary authority to determine whether facts and circumstances exist meriting reasonable belief
that a person has committed a crime. The question of whether or not to dismiss a criminal complaint
is necessarily dependent on the sound discretion of the investigating prosecutor and, ultimately, of the
Secretary (or Undersecretary acting for the Secretary) of Justice. Who to charge with what crime or
none at all is basically the prosecutor's call.

The Court has consistently adopted the policy of non- interference in the conduct of preliminary
investigations, and to leave the investigating prosecutor sufficient latitude of discretion in the
determination of what constitutes sufficient evidence to establish probable cause. Courts cannot order
the prosecution of one against whom the prosecutor has not found a prima facie case; as a rule, courts,
too, cannot substitute their own judgment for that of the Executive.

To justify judicial intrusion into what is fundamentally the domain of the Executive, the petitioner must
clearly show that the prosecutor gravely abused his discretion amounting to lack or excess of
jurisdiction in making his determination and in arriving at the conclusion he reached. This requires the
petitioner to establish that the prosecutor exercised his power in an arbitrary and despotic manner by
reason of passion or personal hostility; and it must be so patent and gross as to amount to an evasion
or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law, before judicial
relief from a discretionary prosecutorial action may be obtained.

Based on the foregoing, absent any indication that the Secretary of Justice gravely abused his
discretion in not finding probable cause for the complaint against respondent officers to prosper, the
dismissal stands.
Page 43 of 56
7. Review: appeal to the Secretary of Justice; appeal to the Office of the President; Petition
for certiorari with the Supreme Court

Section 5. Resolution of investigating judge and its review. — Within ten (10) days
after the preliminary investigation, the investigating judge shall transmit the resolution
of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in
cases of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction, for appropriate action. The resolution shall state the findings of facts and
the law supporting his action, together with the record of the case which shall include:
(a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-
affidavits and other supporting evidence of the parties; (c) the undertaking or bail of
the accused and the order for his release; (d) the transcripts of the proceedings during
the preliminary investigation; and (e) the order of cancellation of his bail bond, if the
resolution is for the dismissal of the complaint.

Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or
the Ombudsman or his deputy, as the case may be, shall review the resolution of the
investigating judge on the existence of probable cause. Their ruling shall expressly and
clearly state the facts and the law on which it is based and the parties shall be furnished
with copies thereof. They shall order the release of an accused who is detained if no
probable cause is found against him. (5a)

What is the remedy of the aggrieved party from the resolution of the investigating
prosecutor as approved by his superior?

A verified petition for review within 15 days from the resolution or denial of the motion for
reconsideration. The Secretary of Justice may reverse or modify the resolution.

The Secretary of Justice may also motu proprio reverse or modify the resolution.

The Secretary of Justice shall direct either the filing of the complaint without the need for a new
preliminary investigation or move for the dismissal of the complaint (Sec. 4).

NOTE: The Secretary of justice may review resolutions of his subordinates in criminal
cases despite the information being filed in court (Community Rural Bank of Guimba v.
Talavera, A.M. No. RTJ-05-1909, Apr. 6, 2005).

What should the Secretary of Justice do if an information that has already been filed
in court is appealed to him?

He should, as far as practicable, refrain from entertaining the appeal. The matter should be left
to the determination of the Court.

If the Secretary of Justice gives due course to the appeal, what should the trial judge
do?

He should suspend proceedings and defer arraignment pending the resolution of the appeal.

Is the finding of a judge that probable cause exists for the purpose of issuing a
warrant of arrest subject to judicial review?

No. It would be asking the court to examine and assess such evidence as has been submitted by
the parties before trial and on the basis thereof, make a conclusion as whether or not it suffices
to establish the guilt of the accused.

Page 44 of 56
 What is the remedy of the complainant if the Secretary of Justice does not allow the
filing of a criminal complaint against the accused because of insufficiency of evidence?

He can file a civil action for damages against the offender based on Article 35 of the Civil Code.
This would require a mere preponderance of evidence.

What is the remedy of an aggrieved party against the resolution of the Secretary of
Justice?

Such resolution may be nullified in a petition for certiorari under Rule 65 on grounds of grave
abuse of discretion resulting to lack or excess of jurisdiction (Ching v. Sec. Of Justice, G.R. No.
164317, Feb. 6, 2006).

Alternative Answer: The resolution of the DOJ is appealable administratively before the Office
of the President, and the decision of the latter may be appealed before the CA pursuant to Rule
43 (De Ocampo v. Sec. Of Justice, G.R. No. 147392, Jan. 25, 2006).

What is the remedy against the resolution of the Ombudsman?

The resolution of the Ombudsman may be subject of petition for review via Rule 43 before the CA
or a special civil action for certiorari via Rule 65 before the SC.

The resolution of the Ombudsman, if the latter acted without or in excess of jurisdiction, may be
nullified by a writ of certiorari(Ramiscal v. Sandiganbayan, G.R. Nos. 109727-28, Aug. 18, 2006)

When the officer conducting a conducting a preliminary investigation, i.e. the Ombudsman, acts
without or in excess of authority and resolves to file an information despite the absence of
probable cause, such may be nullified by a writ of certiorari (Mendoza-Arce v. Office of the
Ombudsman, G.R. No. 149148, Apr. 5, 2002).

NOTE: In the absence of grave abuse of discretion, the court will not interfere or pass
upon the findings of the Ombudsman to avoid its being hampered by innumerable petitions
assailing the dismissal of the investigatory proceedings conducted by the latter (Tejano v.
Ombudsman, G.R. No. 159190, June 30, 2005).

Does the SC and CA have the power to review preliminary investigation?

Yes, they have the power to review the findings of prosecutors in preliminary investigations
(Social Security System v. DOJ, G.R. No. 158131, Aug. 8, 2007).

Page 45 of 56
8. When warrant of arrest may issue; constitutional basis; issuance of warrant by the
Regional Trial Court and Municipal Trial Court; Concept of searching questions; meaning
of probable cause;

Section 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 immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the complaint
or information was filed pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by the court
within thirty (30) days from the filing of the complaint of information.

(b) By the Municipal Trial Court. — When required pursuant to the second paragraph
of section 1 of this Rule, the preliminary investigation of cases falling under the original
jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the
prosecutor. When conducted by the prosecutor, the procedure for the issuance of a
warrant or arrest by the judge shall be governed by paragraph (a) of this section. When
the investigation is conducted by the judge himself, he shall follow the procedure
provided in section 3 of this Rule. If the findings and recommendations are affirmed by
the provincial or city prosecutor, or by the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue a warrant of arrest. However, without
waiting for the conclusion of the investigation, the judge may issue a warrant of arrest
if he finds after an examination in writing and under oath of the complainant and his
witnesses in the form of searching question and answers, that a probable cause exists
and that there is a necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice.

(c) When warrant of arrest not necessary. — A warrant of arrest shall not issue if
the accused is already under detention pursuant to a warrant issued by the municipal
trial court in accordance with paragraph (b) of this section, or if the complaint or
information was filed pursuant to section 7 of this Rule or is for an offense penalized
by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a)

CONSTITUTIONAL BASIS: No warrant of arrest should issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce (Section 2, Article VI, 1987 Constitution)

What is preliminary examination?

Preliminary examination is the proceeding for the determination of the existence of probable
cause for the purpose of issuing a warrant of arrest.

What is a warrant of arrest?

A warrant of arrest is a legal process issued by a competent authority directing the arrest of a
person or persons upon the grounds stated therein (Herrera, Vol. IV, p. 345, 2007 ed.).

Page 46 of 56
 What are the principles governing the finding of probable cause for the issuance of a
warrant of arrest?

1. There is a distinction between the objective of determining probable cause by the prosecutor
and by the judge. The prosecutor determines it for the purpose of filing a complaint or
information, while the judge determines it for the purpose of issuing a warrant of arrest – whether
there is a necessity of placing him under immediate custody in order not to frustrate the ends of
justice.

2. Since their objectives are different, the judge should not rely solely on the report of the
prosecutor in finding probable cause to justify the issuance of a warrant of arrest. The judge
must decide independently and must have supporting evidence other than the prosecutor’s bare
report.

3. It is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. He must have sufficient supporting
documents upon which to make his independent judgment.

When may a warrant of arrest be issued?

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

By the RTC

1. Within 10 days from the filing of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting evidence.

2. He may immediately dismiss the case if the evidence fails to establish probable cause.

3. If he finds probable cause, he shall issue a warrant of arrest or a commitment order if the
accused has already been arrested by virtue of a warrant issued by the MTC judge who conducted
the preliminary investigation or if he was arrested by virtue of a lawful arrest without warrant.

4. In case of doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within 5 days from notice and the issue must be resolved within 30
days from the filing of the complaint or information.

NOTE: The RTC judge need NOT personally examine the complaint and witnesses in the
determination of probable cause for the issuance of the warrant of arrest.

By the MTC

The MTC is authorized to issue a warrant of arrest if there is necessity of placing the respondent
under immediate custody, in order not to frustrate the ends of justice.

1. If the preliminary investigation was conducted by a prosecutor, same procedure as above

2. Cases cognizable by the RTC may be filed with the MTC for preliminary investigation;

3. Cases cognizable by the MTC because it is an offense where the penalty prescribed by law is
at least four (4) years, two (2) months and one (1) day without regard to the fine.

4. If the preliminary investigation was conducted by the MTC judge and his findings are affirmed
by the prosecutor, and the corresponding information is filed, he shall issue a warrant of arrest.

Page 47 of 56
5. However, without waiting for the conclusion of the investigation, MTC judge may issue a
warrant of arrest if he finds after:

a. an examination in writing and under oath of the complainant and his witnesses

b. in the form of searching questions and answers that probable cause exists; and

c. that there is a necessity of placing the accused under immediate custody in order not
to frustrate the ends of justice.

NOTE: If the MTC judge found probable cause but did not believe that the aforesaid
conditions were met, he cannot be compelled by mandamus to issue the same.

NOTE (for both): REMEDY

The provincial fiscal, if he believes that the accused should be immediately placed in custody,
may file the corresponding information so that the RTC may issue the necessary warrant of arrest
(Samulde vs. Salvani, Jr., G.R. No. 78606, Sept. 26, 1988).

While the judge may rely on the fiscal’s certification thereof, the same is NOT conclusive on him
as the issuance of said warrant calls for the exercise of judicial discretion and, for that purpose,
the judge may require the submission of affidavits of witnesses to aid him in arriving at the proper
conclusion, OR he may require the fiscal to conduct further preliminary investigation or
reinvestigation.

When is a warrant of arrest not necessary?

1. When the accused is already under detention issued by the MTC

2. When the accused was arrested by virtue of a lawful arrest without warrant

3. When the penalty is a fine only

Are “John Doe” warrants valid?

Generally, John Doe warrants are void because they violate the constitutional provision that
requires that warrants of arrest should particularly describe the person or persons to be arrested.
But if there is sufficient description to identify the person to be arrested, then the warrant is valid.

What are the principles governing the finding of probable cause for the issuance of a
warrant of arrest?

1. There is a distinction between the objective of determining probable cause by the prosecutor
and by the judge. The prosecutor determines it for the purpose of filing a complaint or information,
while the judge determines it for the purpose of issuing a warrant of arrest – whether there is a
necessity of placing him under immediate custody in order not to frustrate the ends of justice.

2. Since their objectives are different, the judge should not rely solely on the report of the
prosecutor in finding probable cause to justify the issuance of a warrant of arrest. The judge must
decide independently and must have supporting evidence other than the prosecutor’s bare report.

3. It is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. He must have sufficient supporting
documents upon which to make his independent judgment.

Page 48 of 56
 How should the complaint or information be filed when the accused is lawfully
arrested without warrant?

The complaint or information may be filed by a prosecutor without need for a preliminary
investigation provided an inquest proceeding has been conducted in accordance with existing
rules. In the absence of an inquest prosecutor, the offended party or any peace officer may file
the complaint directly in court on the basis of the affidavit of the offended party or peace officer.

What are the remedies of a party against whom a warrant of arrest has been issued?

1. post bail
2. ask for reinvestigation
3. petition for review
4. motion to quash the information
5. if denied, appeal the judgment after trial
NOTE: NO certiorari

What is the procedure in resolving a complaint when the preliminary investigation is

conducted by a judge?

1. Within 10 days after the termination of the preliminary investigation, the investigating judge
shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman
for appropriate action.

2. The resolution shall state the findings of fact and law supporting his action together with the
record of the case which shall include:

a. the warrant if the arrest is by virtue of a warrant

b. the affidavits, counter-affidavits, and supporting evidence

c. the undertaking or bail and the order of release

d. the transcripts of the proceedings

e. the order of cancellation of the bail bond if the resolution is for the dismissal of the
complaint

3. Within 30 days from the receipt of the records, the provincial or city prosecutor or the
Ombudsman shall review the resolution of the judge.

4. They shall act on the resolution, expressly and clearly stating the facts and the law on which
it is based.

5. The parties shall be furnished with copies thereof.

6. They shall order the release of an accused who is detained if no probable cause is found against
him.

What happens if the judge fails to resolve the case within 10 days from the
termination of the investigation?

This constitutes dereliction of duty and is a ground for dismissal of the judge.

Page 49 of 56
 What is the difference between preliminary investigation conducted by the
prosecutor and one conducted by the judge?

The prosecutor is not bound by the designation of the offense in the complaint. After preliminary
investigation, he may file any case as warranted by the facts. The judge cannot change the
charge in the complaint but must make a finding on whether or not the crime charged has been
committed.

If the investigating judge did not issue a warrant for the arrest of the accused during
the preliminary investigation, what is the remedy of the prosecutor if he believes that
the accused should be immediately placed under custody?

He should file the information in court, so that the RTC may issue the warrant of arrest. He
should not file for mandamus because that could take two years to resolve.

Page 50 of 56
Case: (A) Lim vs. Felix, 194 SCRA 292

Tickler: This case tackles the question: May a Judge without ascertaining the facts through his own
personal determination and relying solely on the certification or recommendation of a prosecutor that
a probable cause exists issue a warrant of arrest?

Facts: Congressman Moises Espinosa, Sr., together with his security escorts were attacked and killed
by a lone assassin at the airport vicinity in Masbate.

Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot,
although, he himself suffered a gunshot wound.

Herein petitioners were alleged to be behind the crime of multiple murder and frustrated murder in
connection with the airport incident.

After conducting the preliminary investigation, the court issued an order finding probable cause for the
issuance of a warrant of arrest of herein petitioners.

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of
P200,000.00 as bail for the provisional liberty of each of the accused.

Respondent Acting Fiscal Antonio C. Alfane was designated to review the case containing 261 pages.

Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners
but differed in the designation of the crime in that the ruled that ". . . all of the accused should not
only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of
the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks
of Dante Siblante."

MR’s of the petitioner’s Lim was also denied.

Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate information of murder
against the twelve (12) accused with a recommendation of no bail.

Petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue and
was granted to avoid a miscarriage of justice. (from Masbate to Makati RTC)

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners questioned the validity of the warrant of arrest because it was not personally determined
by the judge as he relied solely on the certification or recommendation of a prosecutor that a probable
cause exists.

RTC dismissed their petition upholding the validity of the arrest warrants.

Issue: WON a judge may issue a warrant of arrest without bail by simply relying on the prosecution's
certification and recommendation that a probable cause exists.

Ruling: NO. If a Judge relies solely on the certification of the Prosecutor as in this case where all the
records of the investigation are in Masbate, he or she has not personally determined probable cause.
The determination is made by the Provincial Prosecutor. The constitutional requirement has not been
satisfied. The Judge commits a grave abuse of discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed
by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest
against the petitioners. There was no basis for the respondent Judge to make his own personal
determination regarding the existence of a probable cause for the issuance of a warrant of arrest as
mandated by the Constitution. He could not possibly have known what transpired in Masbate as he
had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for
the transmittal of the records on the ground that the mere certification and recommendation of the
respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest.

Hence, the Judge must go beyond the Prosecutor's certification and investigation report whenever
necessary. He should call for the complainant and witnesses themselves to answer the court's probing
questions when the circumstances of the case so require. Petition granted.

Page 51 of 56
9. When accused lawfully arrested without warrant; inquest; waiver of Article 125 of the
Revised Penal Code; preliminary investigation after the filing of information

Section 7. When accused lawfully arrested without warrant. — When a person is

lawfully arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor without need
of such investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor, the complaint
may be filed by the offended party or a peace office directly with the proper court on
the basis of the affidavit of the offended party or arresting officer or person.

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

After the filing of the complaint or information in court without a preliminary

investigation, the accused may, within five (5) days from the time he learns of its filing,
ask for a preliminary investigation with the same right to adduce evidence in his
defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)

What is an inquest?

An inquest is an informal and summary investigation conducted by a public prosecutor in a

criminal case involving persons arrested and detained without the benefit of a warrant of arrest
issued by the court for the purpose of determining whether said persons should remain under
custody and correspondingly charged in court.

What are the guidelines to safeguard the rights of an accused who has been arrested
without a warrant?

1. The arresting officer must bring the arrestee before the inquest fiscal to determine whether
the person should remain in custody and charged in court or if he should be released for lack of
evidence or for further investigation.

2. The custodial investigation report shall be reduced to writing, and it should be read and
adequately explained to the arrestee by his counsel in the language or dialect known to him.

What is the remedy of the person arrested without warrant if he wants a preliminary
investigation?

1. Before the complaint or information is filed, he may ask for one provided that he signs a waiver
of his rights under Article 125 of the RPC in the presence of counsel. He may still apply for bail
in spite of the waiver. The investigation must be terminated within 15 days.

2. After the complaint of information is filed but before arraignment, the accused may, within 5
days from the time he learns of his filing, ask for a preliminary investigation.

Page 52 of 56
 How should the complaint or information be filed when the accused is lawfully
arrested without warrant?

The complaint or information may be filed by a prosecutor without need for a preliminary
investigation provided an inquest proceeding has been conducted in accordance with existing
rules. In the absence of an inquest prosecutor, the offended party or any peace officer may file
the complaint directly in court on the basis of the affidavit of the offended party or peace officer.

Page 53 of 56
10.Cases not requiring a preliminary investigation

Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on
Summary Procedure. —

(a) If filed with the prosecutor. — If the complaint is filed directly with the
prosecutor involving an offense punishable by imprisonment of less four (4) years, two
(2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be
observed. The prosecutor shall act on the complaint based on the affidavits and other
supporting 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
directly with the Municipal Trial Court or Municipal Circuit Trial Court for an offense
covered by this section, the procedure in section 3(a) of this Rule shall be observed. If
within ten (10) days after the filing of the complaint or information, the judge finds no
probable cause after personally evaluating the evidence, or after personally examining
in writing and under oath the complainant and his witnesses in the form of searching
question 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 probable cause. 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 if the accused had already been arrested,
and hold him for trial. However, if the judge is satisfied that there is no necessity for
placing the accused under custody, he may issue summons instead of a warrant of
arrest. (9a)

What are those cases which do not require preliminary investigation?

Those offenses punishable by imprisonment of less than 4 years, 2 months and 1 day.

What is the procedure in cases not requiring a preliminary investigation?

1. If filed with the prosecutor, the prosecutor shall act on the complaint based on the affidavits
and other supporting documents submitted by the complainant within 10 days from its filing.

a. Evaluate the evidence presented

b. Conduct searching questions or answers

c. Require the submission of additional evidence

NOTE: For cases under the Revised Rules on Summary Procedure, no warrant shall be
issued except where the accused fails to appear after being summoned.

(i) If the complaint is filed with the prosecutor involving an offense punishable by
imprisonment of less than 4 years, 2 months and 1 day, the procedure in Rule 112,
Section 3 (a) shall be observed.

(ii) If the complaint is filed with the MTC, the same procedure under Rule 112,
Section 3 (a) shall be observed.

2. If filed with the MTC:

a. If within 10 days from the filing of the complaint or information, the judge finds no
probable cause after personally examining the evidence in writing and under oath of the
complainant and his witnesses in the form of searching questions and answers, he shall
dismiss the complaint or information.
Page 54 of 56
 b. He may require the submission or additional evidence, within 10 days from notice. If
he still finds no probable cause, he shall dismiss the case.

c. If he finds probable cause, he shall issue a warrant of arrest or a commitment order and
hold him for trial. If he thinks that there is no necessity for placing the accused under
custody, he may issue summons instead.

NOTE: in all other cases cognizable by the MTC or MCTC, the issuance of the warrant of
arrest is discretionary on the part on the part of the judge. As long as he is satisfied that
there is no need for the necessity of placing the accused under custody, he may issue
summons instead of warrant of arrest.

What are the instances when preliminary investigation is not required even if the
offense requires a preliminary investigation?

1. If a person is arrested lawfully without a warrant involving an offense which requires a

preliminary investigation, i.e., the penalty is at least four years, two months and one day, an
information or complaint may be filed against him without need for a preliminary investigation. If
he has been arrested in a place where an inquest prosecutor is available, an inquest will be
conducted instead of preliminary investigation. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed directly with the proper court on the basis of the affidavit
of the offended party or arresting officer or person (Sec. 7)

2. The fact that a person was lawfully arrested without a warrant does not absolutely bar him
from availing of a preliminary investigation because before the complaint or information is filed,
he may ask that a preliminary examination be conducted. However, before he is granted the
preliminary investigation asked for by him, he must sign a waiver of the provisions of Article 125
of the Revised Penal Code.

3. If the complaint or information has been filed without a preliminary investigation, the accused
who desires a preliminary investigation, may, within five days from the time he learns of its filing,
ask for a preliminary investigation (Sec. 7)

NOTE: The waiver of the provisions of Article 125 does not bar the person arrested from
applying for bail and even while the preliminary investigation is pending.

Page 55 of 56
11.Remedies of accused if there was no preliminary investigation

REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION

1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground

2. Insist on a preliminary investigation

3. File a certiorari, if refused

4. Raise lack of preliminary investigation as error on appeal

5. File for prohibition

NOTE: As preliminary investigation is NOT a part of the trial, the dismissal of the case by the
investigator will not constitute double jeopardy and will not bar the filing of another complaint for
the same offense, but if re-filed, the accused is entitled to another preliminary investigation (U.S.
vs. Marfori, 35 Phil. 666).

Page 56 of 56