Preliminary Investigation: When is it required and not required?

Submitted by Group 1. Atienza !ar" #holo $ato %andee #easar Aspirin Andre& Abu'e(o )in'e

Submitted to: Atty. *ose Parungo

What is a preliminary Investigation? It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. What is the nature and e++e'ts o+ a Preliminary Investigation? 1. It is merely inquisitorial.

2. Only means of discovering whether the offense has been committed and the persons responsible for it. 3. !. #. o enable the fiscal to prepare his complaint and information. "ot a trial on the merits. $oesn%t place the accused in &eopardy.

'. $oesn%t affect the &urisdiction of the court(only the regularity of the proceedings. ). *reliminary investigation may be waived.

+. ,ccused should invo-e right to *I before plea, otherwise it is deemed waived. .. here is also no right to confront witnesses against him.

Who 'ondu'ts Preliminary Investigation? 1. *rovincial or city fiscals and their assistants. 2. /udges of 0 1 and 01 1. 3. "ational and regional state prosecutors. !. 2uch other officers as may be authori3ed by law. #. $uly authori3ed legal officers of 1O04541. a. he Ombudsman. b. he *166, in cases of ill-gotten wealth.

When is it required? 7efore a complaint or information is filed, preliminary investigation is required for all offenses punishable by imprisonment of at least ! years, 2 months and 1 day, regardless of the fine, e8cept if the accused was arrested by virtue of a lawful arrest without warrant.

Pro'edure on Preliminary Investigation 1. 1omplainant files complaint with 9a: *rovincial or city fiscal 9b: ;egional or state prosecutor 9c: 0 1 or 01 1 &udge, e8cluding 0 1 &udge of 0etro 0anila or chartered cities 9d: Other offices authori3ed by law 2. <ithin ten 91=: days after the filing of the complaint, investigating officer either dismisses complaint or as-s by subpoena complainant and respondent to submit affidavits and counter-affidavits. 3. If the investigating officer finds prima facie evidence, he prepares an Information and a resolution, Otherwise, he recommends the dismissal of the complaint. !. If the investigating officer is an 0 1 &udge, and he finds that probable cause e8ists and that there is a need to place the accused under custody, then he may issue a warrant of arrest, the rule now is that the investigating &udge>s power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody ?in order not to frustrate the ends of &ustice.@ It is therefore error for the investigating &udge to order the issuance of a warrant of arrest solely on his finding of probable cause, without ma-ing any finding of a necessity to place the accused in immediate custody to prevent a frustration of &ustice. #. Investigating officer forwards records to the city fiscal or chief state prosecutor 1ity fiscal or state prosecutor either dismisses the complaint or files the information in court. '. $ecision prevails over decision of the 0 1 &udge. ). ;ecords will not form records of the case proper. +. 1ourt on its own or on motion may order production of record.

When is a Preliminary Investigation not required? 1. Offenses where the penalty prescribed is lower than !yrs 2months and 1 day. 2. Offenses not covered by the ;ules on 2ummary *rocedure. 3. In cases of ?warrantless arrests.@ <hen 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 e8isting rules. Aowever, after the filing of the complaint or information in court without a preliminary investigation, the accused may, within five 9#: days from the time he learns of its filing, as- for a preliminary investigation. What is an inquest? It is the determination of the prosecutor whether to charge the accused or not when there is a lawful warrantless arrest, or to determine whether there is a valid warrantless arrest. *rocedure when *reliminary Investigation is not required. 1. If conducted after warrantless arrest, 2. If accused waives ,rt. 12#, ;*1 and as-s for a preliminary investigation, with the assistance of counsel, then the procedure for one prior to arrest is followed Inquest conducted as followsB 9a: Ciscal determines the validity of the arrest. 9b: Ciscal determines e8istence of prima facie evidence based on the statements of the complainant, arresting officer and witnesses. 9c: Ciscal either dismisses the complaint and orders the immediate release of the accused, O; prepares and files an Information. <hile fiscal has quasi-&udicial discretion whether or not to file an information, once it is filed with the court, the court acquires &urisdiction giving it discretion over the disposition of the case and the 2ec. of /ustice should refrain from entertaining petitions for review or appeals from the decision of fiscal 91respo vs. 0ogulD Eelasque3 vs. Fndersecretary of /ustice: "O 4B Information may be filed by offended party, peace officer or fiscal without *reliminary Investigation

%emedies 1. 0otion for preliminary investigation a. Ciled when accused is arrested without warrant b. 0ust be with assistance of counsel and after waiving ,rt. 12#, ;*1 for ,rbitrary $etention c. 0otion for preliminary investigation d. Ciled within # days after accused learns an information against him has been filed without a preliminary investigation 2. 0otion for ;einvestigation 3. ,ppeal to the $O/ !. *etition for *rohibition a. Ciled with appellate court to stop the criminal proceeding b. Ordinarily, in&unction will not lie but may be granted in certain cases c. <hen prohibition is proper to restrain 1riminal *roceedingsB 1: 2trong-arm tactics are used for vindictive purposes 92alonga vs. 1ru3*ano: 2: 3: he accused is deprived of his rights he statute on which the charge is based is null and void

!: It will aid the administration of &ustice 9 atad vs. 2andiganbayan: #: 0ultiplicity of suits will be avoided 96uingona vs. 1ity Ciscal:

#ases &hi'h require Preliminary Investigation ,-%I./,0 vs.*/1G, SA%!I,-23 *%. A.!. -o. %2*45647511 August 8 7556. 9A#2S: On the invitation of the )th ;egional 1riminal Investigation and $etection 6roup Fnit at 1amp 2otero 1abahug in 1ebu 1ity, ,nthony /ohn ,pura, accompanied by his father, repaired to said office on ,ugust 1, 2==3. ,n GInquest InvestigationG of ,pura was conducted on ,ugust 2, 2==3, a 2aturday, by a prosecutor who recommended the impleading of ,pura as co-accused in a case. , warrant for ,pura>s arrest was on even date issued by /udge aypin, *residing /udge, 7ranch 12, 1ebu ; 1, who was on duty that day. ,pura was immediately arrested and detained. ,pura assailed the legality of his arrest via a G0otion to $ismissG the Information, which he filed on ,ugust #, 2==3 before 7ranch 2!, 1ebu ; 1 to which the case was raffled. 7y Order of ,ugust 13, 2==3, 7ranch 2! *residing /udge 2armiento, /r., Gbelieving that there was lac- of preliminary investigation,G ordered the remand of the case against ,pura to the 1ebu 1ity *rosecutor>s Office for preliminary investigation and ordered ,pura>s release from custody on a bail of *2=,===. ISS/,: Is the remand of the case against ,pura to the 1ebu 1ity *rosecutor>s Office for preliminary investigation correctH %/:I-G: Ies. , preliminary investigation should have been conducted before the filing of the ,mended Information. , preliminary investigation is a proceeding distinct from an inquest. It is Gan 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.G ,n inquest is Ga summary inquiry conducted by a prosecutor for the purpose of determining whether the warrantless arrest of a person was based on probable cause.G <here the penalty prescribed by law for an offense is at least four years, two months and one day of imprisonment without regard to the fine, a preliminary investigation must be conducted before the filing of a complaint or information for such offense. he conduct of an inquest investigation does not fulfill the requirement for the conduct of a preliminary investigation before the filing of an information or complaint involving any such offenses, e8cept when the accused was lawfully arrested without a warrant. In the case at bar, the accused was not even arrested. Ae repaired to the 1I$6F on its invitation. Ae should thus have been sub&ected to a preliminary investigation, not a mere inquest investigation.

:A-1A;A- vs.*/1G, ./I:A-2A-G A.!. -o. !2*456416<7 !ay = 7556 9A#2S: 5andayan instituted administrative proceedings against ,lbert 0. 1awili, a <ater 0aintenance 0an, for grave misconduct, gross insubordination, and neglect in the performance of duty. 1awili later filed fabricated charges of grave threats, grave coercion, and serious illegal detention against him before the sala of respondent /udge. 1omplainant further alleged that the criminal complaints were subscribed before respondent /udge on the following datesB grave threats on /uly #, 2==!D grave coercion on /uly +, 2==!D and serious illegal detention on /uly 1+, 2==!. hus, when respondent /udge issued the Order dated /uly +, 2==! admitting the complaint and directing the complainant 9accused therein: to file his affidavit, the sworn complaint for illegal detention could not have yet been instituted by 1awili. 1omplainant also alleged that respondent /udge issued his /oint ;esolution on 2eptember 23, 2==! without submitting it to the *rovincial *rosecutor for review and affirmation, and set the case for trial on "ovember 2#, 2==!. he 1ler- of 1ourt also issued the "otice of Aearing on even date. ISS/,: Is there a need for the investigating /udge to transmit the resolution of the case to the provincial or city prosecutorH %/:I-G: Ies. It is clear from 2ection #, ;ule 112 of the ;evised ;ules on 1riminal *rocedure that a municipal trial court &udge tas-ed with conducting a preliminary investigation is required to forward to the provincial or city prosecutor the entire records of the case. , 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 that the respondent is probably guilty thereof, and should be held for trial. It is an e8ecutive, not a &udicial function. It falls under the authority of the prosecutor who is given by law the power to direct and control all criminal actions. Aowever, since there are not enough fiscals and prosecutors to investigate the crimes committed in all the municipalities all over the country, the government was constrained to assign this function to &udges of 0unicipal rial 1ourts and 0unicipal 1ircuit rial 1ourts. hus, when a municipal &udge conducts preliminary investigation, he performs a non-&udicial function as an e8ception to his usual duties. Ais findings, therefore, are sub&ect to review by the provincial or city prosecutor whose findings, in turn, may be reviewed by the 2ecretary of /ustice in appropriate cases. Aence, the investigating &udge, after conducting a preliminary investigation, must perform his ministerial duty to transmit within ten 91=: days the resolution of the case together with the entire records to the provincial or city prosecutor.

#ases &hi'h does not require Preliminary Investigation ,1/A%13 PI:API: vs. SA-1IGA-$A;AG.%. -o. 151>8?@ April 8 1>><. A2he absen'e o+ preliminary investigation does not a++e't the 'ourtBs (urisdi'tion over the 'ase. -or do they impair the validity o+ the in+ormation or other&ise render it de+e'tiveC 9a'ts: ,ccused 4duardo *ilapil was a congressman, who receive an 53== for ambulance in behalf of the 0unicipality of igaon, 1amarines 2ur from *12O . he mayor of the municipality found out about the donation and requested the delivery of the same but accused failed to deliver said ambulance. 2andiganbayan *residing /ustice Crancis 6architorena, requested an investigation. *reliminary investigation was conducted for 0alversation of *ublic *roperty under ,rt 21) of the ;evised *enal 1ode. Initially, the Ombudsman Investigator recommended 0alversation cannot prosper finding no probable cause but it was disapproved and filing was recommended by the ,sst. Ombudsman. Fntil finally the crime charged is for violation of 2ection 39e: of ;.,. "o. 3=1.. 7eing a public officer while in the discharge of his official functions and ta-ing advantage of his public position, acted with manifest partiality and evident bad faith, did then and there willfully cause undue in&ury and damage to the municipal gov%t recommended by ombudsman Easque3. <arrant of arrest was issued, accused posted bail. *etitioner predicated his motion to quash on the ground of lac- of &urisdiction over his person because the same was filed without probable cause. In addition thereto, petitioner cites the fact that the information for violation of the ,nti-6raft 5aw was filed although the complaint upon which the preliminary investigation was conducted is for 0alversation. ,ccused appealed the decision of the 2andiganbayan denying his quashal and reconsideration. Issue: <O" 2andiganbayan committed grave abuse of discretion in denying petitioner%s motion to quash and motion for reconsideration for lac- of &urisdiction and lac- of preliminary investigation because the investigation was for 0alversation and not for the specific charge of violation of 2ec. 39e:,;.,. "o. 3=1. . %uling : "o. he absence of preliminary investigation does not affect the court%s &urisdiction over the case. "or do they impair the validity of the information or otherwise render it defective, but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the Information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court

so that the preliminary investigation may be conducted. <hen the court has &urisdiction, any irregularity in the e8ercise of that power is not a ground for a motion to quash. 5ac- of &urisdiction is not waivable, but absence of preliminary investigation is waivable. In fact, it is frequently waived. *reliminary investigation is merely inquisitorial, and it is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. he preliminary designation of the offense in the directive to file a counter-affidavit and affidavits of one%s witnesses is not conclusive. he 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 . . . it is not the technical name given by the Ciscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the Information. It is well-settled that the right to a preliminary investigation is not a fundamental right and may be waived e8pressly or by silence. Cailure of accused to invo-e his right to a preliminary investigation constituted a waiver of such right and any irregularity that attended it. he right may be forfeited by inaction and can no longer be invo-ed for the first time at the appellate level. 1learly, the alleged lacof a valid preliminary investigation came only as an afterthought to gain a reversal of the denial of the motion to quash. he court should not be guided by the rule that accused must be shown to be guilty beyond a reasonable doubt, but rather whether there is sufficient evidence to believe that the act or omission complained of constitutes the offense charged. he determination of the crime and the matters of defense can be best passed upon during a full-blown trial.

G3 vs. #A G.%. -o. 151?<8@ 9ebruary 11 1>>7 A2he right to preliminary investigation is invo"ed be+ore entering a plea@ +ailure to invo"e the same amounts to &aiver.2he +a't that the a''used posted bail and parti'ipated the trial does not amount to &aiver o+ preliminary investigation sin'e he as"ed +or it be+ore +iling o+ in+ormationC 9a'ts: One 4ldon 0aguan was driving the opposite direction of a one-way street in 2an /uan, 0etro 0anila. ,ccused ;olito 6o and 0aguan%s car nearly bumped into each other in an intersection and later, 6o shot 0aguan and left the scene. , security guard of a nearby restaurant saw the incident and too- down the plate number of 6o%s car. *olice investigators were able to get 6o%s picture through the credit card that 6o used when he dined in restaurant near the crime scene the witness positively identified 6o as the gunman. Aence, a manhunt was launched. 2everal days thereafter, 6o went to the police station where the witness identified him as the suspect. he police detained 6o. , complaint for frustrated homicide was filed by the police to the *rovincial prosecutor. 6o was informed of his right to demand preliminary investigation provided he waives the ,rticle 12# of the ;evised *enal 1ode. 6o refused to e8ecute such waiver. 0eanwhile, 0aguan died. Aence, prosecutor filed am information of murder without conducting preliminary investigation. 6o posted cash bond and was released after approval of the same by the court. he prosecutor filed with leave of court to conduct preliminary investigation and to prayed for the suspension of court proceedings pending the preliminary investigation. he same was granted and arraignment of 6o was suspended. he following day, the court recalled its approval and cancelled the bail of 6o. Aence, 6o filed a petition for certiorari, prohibition, and mandamus before the 21, which was remanded to 1,. ,rraignment too- place as scheduled and 6o refused to enter his plea. Aence, a plea of not guilty was entered for him. hen, 1, issued its decision dismissing the petition of 6o on the grounds that 6o was validly arrested without a warrant and 6o already waived his right to preliminary investigation. Aence, this petition for review on certiorari Issue: <hether or not 6o waived his right to preliminary investigation. %uling: "O. <hile the right to preliminary investigation is statutory and not constitutional, it is a component of due process of criminal &ustice. It is a substantive right. o deprive an accused of this right is to deny due process. 6enerally, said right is invo-ed before entering a pleaD failure to invo-e the same amounts to waiver. In this case, 6o insisted that a preliminary investigation be conducted upon the filing of the information before the court. he fact that he

posted bail did not amount to waiver of said right as he as-ed for it when he filed for the approval of the cash bond. he court granted his prayer for preliminary investigation before the approval of the bond. 6o even filed before the 1, for such relief. Aence, 6o was entitled to a preliminary investigation. 7ut since the trial had already commenced, the trial should be suspended and preliminary investigation should be conducted. *articipation of 6o during the trial did not amount to waiver also as he was merely forced to do so to avail his other rights.

3%./I-A0A vs. P,3P:, G.%. -o. 16DD>6 -ovember 18 755D A Where a preliminary investigation &as 'ondu'ted +or an o++ense 'harged the 'ondu't o+ another preliminary investigation upon institution o+ a more proper 'harge &ould be +utile be'ause the 'omplainant &ould be presenting the same eviden'e &hi'h have already been studied by the prose'utor. 2he la'" o+ preliminary investigation &ould still not be a ground to quash the in+ormation against the a''used mu'h less does it a++e't the 'ourtBs (urisdi'tionC 9a'ts: On Ceb #, 2==3, 4dilyn ,rida, an employee of 1alamba 0odel 0a-ers factory, together with her witness, /ulio 4spinili, e8ecuted a sworn statement regarding the allege act of accused Orquina3a, the general manager of the said factory, of -issing her and touching her breasts while she was ta-ing a nap. he case was referred as a case of se8ual harassment. Orquina3a filed a petition to dismiss the complaint arguing that it does not contain allegation to constitute the crime of se8ual harassment. he assistant city prosecutor filed with the 0 1 an Information charging the petitioner with acts of lasciviousness. , warrant of arrest was issued against Orquina3a. Orquina3a filed an omnibus motion praying that the warrant be recalled, the information be quashed, the arraignment be invalidated and the case be dismissed. Ae 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 se8ual harassment and not for acts of lasciviousness. he motion was denied. Ae again filed for a motion for reconsideration, which was again denied. Ae filed a petition for 1ertiorari. Issue: 2hould the case be dismissed on the ground of lac- of preliminary investigationH %uling: 7ased on the affidavits submitted by the parties, the assistant city prosecutor concluded that the more proper charge should be acts of lasciviousness. he conduct of another preliminary investigation for the offense of acts of lasciviousness would be futile because the complainant would be presenting the same evidence, which have already been studied by the prosecutor. he lac- of preliminary investigation would still not be a ground to quash the information against the accused much less does it affect the court%s &urisdiction. he remedy of the accused is to call the attention of the court to the lac- of preliminary investigation and demand as a matter of right that one be conducted.