RULE 112 – PRELIMINARY INVESTIGATION
Q-1: What is Preliminary Investigation (PI)?
Section 1(1) Preliminary investigation defined; —
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.
Q-2: What quantum of evidence required for
purposes of PI?
A preliminary investigation is a mere inquiry or a
proceeding. Its purpose is not to declare the respondent
guilty beyond reasonable doubt but only to determine:
1. Whether or not a crime has been committed
2. Whether or not the respondent is probably guilty
Q-3: How to determine probable cause?
p. 186 Riano
Probable cause – facts and circumstances sufficient to
support a well-founded belief that a crime has been
committed and the accused is probably guilty thereof.
The evidence necessary to establish probable cause if
based only on the likelihood, or probability, of guilt. While
it refers to probability of guilt, it requires more than a
bare suspicion. It needs only to rest on evidence
showing that more likely than not a crime has been
committed and was committed by the suspect.
2 Kinds:
 Executive – made during the preliminary
investigation. A function that 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. It concerns itself with
whether there is enough evidence to support
an information being filed.
 Judicial - made by the judge to ascertain
whether a warrant of arrest should be issued
against the accused. If the judge finds no
probable cause, the judge cannot be forced
to issue the warrant of arrest.
Q-4: What is the purpose of PI?
a. 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.
b. 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.
c. 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.
Q-5: Is double jeopardy applicable in PI?
Q-6:What are the natures of Preliminary
investigation?
(p. 184, Riano)
1. Preliminary investigation is a function that belongs
to the public prosecutor. The prosecution of crimes
lies with the executive department of the government
whose principal power and responsibility is to see that
the laws of the land are faithfully executed.
2. The determination of probable cause is under our
criminal justice system, an executive function that
the courts cannot interfere with in the absence of
grave abuse of discretion.
3. The right to have a preliminary investigation before
trial is statutory rather than constitutional, it is a
substantive right and a component of due process
in the administration of criminal justice.
4. Preliminary investigation is a mere inquiry or
proceeding. It does not therefore involve the
examination of witnesses by way of direct or cross
examination.
5. Does not decide whether there is evidence beyond
reasonable doubt of the guilt of the respondent.
Merely determines the existence of probable
cause and to file the information if he finds it to be so.
Q-7: What is the nature of PI a right?
p. 186 – Riano
 Right to a preliminary investigation = not a
constitutional right
1) The right is a statutory character and
may be invoked only when specifically
created by the statute. While the right is
statutory rather than constitutional, since
it has been established by statute, it
becomes a component of due process in
criminal justice. (Duterte vs.
Sandiganbayan)
2) When so granted by the statute, the
right is not a mere formal or technical
right. It is a SUBSTANTIVE right. To
deny the claim of the accused to a
preliminary investigation would be to
deprive him the full measure of his right
to due process. Where the denial is
tainted with grave abuse of discretion
amounting to lack of jurisdiction, a
ground for petition for certiorari and
mandamus arises.
The right to a preliminary investigation may be waived
for failure to invoke the right prior to or at the time of the
plea.
Q-8: What is the coverage for PI?
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.
Q-9: Who are the officers authorized to conduct PI?
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.
Q-10: When does PI commence?
It is the filing of the complaint with the
investigating prosecutor that starts the preliminary
investigation process. In actual application, the
complaint is normally initiated through an affidavit of
complaint.
The complaint is required to state
1. Address of respondent
2. Affidavits of the complainant
3. Affidavits of the witnesses
4. Other supporting documents
These affidavits and supporting documents are
required in order to establish probable cause. (p. 207,
Riano)
Q-11: What are the contents of a complaint for
purposes of PI, How many copies should be
prepared, its accompanying documents?
Riano p. 207
 Complaint – normally initiated through an
affidavit of complaint.
 Required to state the address of the
respondents and shall be accompanied by
a. Affidavits of the complainant
b. Affidavits of his witnesses
c. Other supporting documents
The # of copies shall be in such number as
there are respondents plus 2 copies for the
official file.
Q-12: After having obtained a complaint and its
accompanying documents, what could be the steps
an Investigating Officer might perform? When?
Q-13: In what manner should subpoenas be served?
Dismissal of the complaint or issuance of a subpoena
1. From the filing of the complaint, the
investigating officer has ten (10) days within which to
decide which of the following options to take:
(a) To dismiss the complaint if he finds
no ground to conduct the investigation; or
(b) To issue a subpoena to the
respondent in case he finds the need to
continue with the investigation, in which case the
subpoena shall be accompanied with a copy of
the complaint and its supporting affidavits and
documents (Sec. 3[b], Rule 112, Rules of Court).
2. The respondent to whom the subpoena was
issued 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 to a party but shall be made available for
examination, copying, or photographing at the expense
of the requesting party (Sec. 3[b], Rule 112, Rules of
Court).
(p175, not sure yet)
Q-14: After having receipt of subpoena, what are the
options left to the respondent? When?
1. The respondent to whom the subpoena was issued
shall have the right to examine the evidence
submitted by the complainant.
2. Within 10 days from the receipt of the subpoena,
the respondent shall submit his counter-affidavit,
affidavit of his witnesses, and other documents in
his defense.
The counter-affidavits shall be subscribed and
sworn to before any prosecutor or before any
government official authorized to administer oaths. In
their absence or in case they are unavailable, the
affidavits may be subscribed and sworn to before a
notary public.
3. If the respondent cannot be subpoenaed or if he
fails to file counter-affidavit within 10 days, the
investigating officer shall resolve the complaint
based on the evidence submitted by the
complainant.
4. Within 10 days from the submission of the
respondent’s counter-affidavit, a hearing can be
set in order to clarify facts and issues of both
parties.
Q-15: Is motion for extension of time to file Counter
Affidavit allowed?
 Only 1 Motion for Extension to file counter-
affidavit for a period NOT exceeding 10 days
hall be allowed. The filing of Reply-affidavits,
rejoinder-affidavits, memoranda, and similar
pleadings are likewise prohibited.
Q-16: Is motion to dismiss allowed to be filed in lieu
of affidavit?
Rule 112 Sec 3 (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.
Q-17: What if respondent could not be
subpoenaed, or does not submit his counter
affidavit?
If despite the subpoena, the respondent does
not submit his counter-affidavit within the ten-day
period granted him, the investigating officer shall resolve
the complaint based on the evidence presented by the
complainant. The same rule shall apply in case the
respondent cannot be subpoenaed (Sec. 3[d], Rule
112, Rules of Court). This situation would have the effect
of an ex parte investigation because the respondent
cannot or does not participate in the proceedings.
Note: Since the Rules of Court are to be liberally
construed, the respondent should be allowed, through a
proper motion, to have the proceedings reopened to
allow him to submit his counter-affidavit and the
affidavits of his witnesses and other evidence he may
present. The motion however, should be done before the
prosecutor has issued a resolution in the case. Further,
such motion should contain an explanation for the failure
to timely file the counter-affidavit. (p.176, )
Q-18: Is clarificatory hearing mandatory? What are
the dos and donts during clarificatory hearing?
A clarificatory hearing is not indispensable.
Meaning, it is not absolutely necessary during
preliminary investigation. Under Sec. 3(e) of Rule 112, it
is within the discretion of the investigation officer
whether to set the case for further hearings to clarify
some matters. Rather than being mandatory, it is
optional on the part of the investigating officer. (p.211,
Riano)
Within 10 days from the submission of the
counter-affidavit or within 10 days from the expiration of
the period for their submission, a hearing may be set by
the investigation officer.
• The parties can be present
• The parties do not have the right to examine or
cross-examine each other
• They can submit questions to the investigating
officer, if there be any
Q-19: Is right to counsel observed during PI?
Yes, when confession is being obtained.
Art. 3, Section 12 of the 1987 constitution provides
Section 12.
(1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence
of counsel.
(2) No torture, force, violence, threat,
intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to the rehabilitation of victims of torture or
similar practices, and their families.
Q-20: When is case deemed submitted for
Resolution?
Q-21: What is the period to conduct PI?
Section 1 (2). Preliminary investigation defined; when
required-
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.
Q-22: Explain the confidentiality requirements for PI.
Q-23: What could be the possible courses of action
of the city/provincial/PROSGEN on the
recommendatory resolution?
p. 212, Riano
 If the investigating prosecutor finds cause to
hold the respondent for trial, he shall
prepare both the resolution and information.
If he does not find probably cause, he shall
recommend the dismissal of the complaint.
 Information shall contain a certification by
the investigating officer under oath in which
he shall certify to the ff:
a. He is an authorized officer, personally
examined the complainant and
witnesses
b. Reasonable ground to believe that a
crime has been committed
c. Accused is probably guilty
d. Accused was informed of the complaint
and of the evidence submitted against
him and that he was given an
opportunity to submit controverting
evidence.
.
Q:24: What are the recourses of the complainant if case
is dismissed?
CASES FOR READING
1. De Lima vs Reyes, G.R. No 209330, Jan
11, 2016
Facts:
 Dr. Gerardo Ortega (Dr. Ortega), also known as
"Doc Gerry," was a veterinarian and anchor of
several radio shows in Palawan. On January 24,
2011, at around 10:30 am, he was shot dead inside
the Baguio WagwaganUkay-ukay in San Pedro,
Puerto Princesa City, Palawan. After a brief chase
with police officers, Marlon B. Recamata was
arrested. On the same day, he made an extrajudicial
confession admitting that he shot Dr. Ortega. He
also implicated Rodolfo "Bumar" O. Edrad (Edrad),
Dennis C. Aranas, and Armando "Salbakotah" R.
Noel, Jr.
 On February 6, 2011, Edrad executed a
SinumpaangSalaysay where he alleged that it was
former Palawan Governor Mario Joel T. Reyes
(former Governor Reyes) who ordered the killing of
Dr. Ortega.
 On February 7, 2011, Secretary of Justice Leila De
Lima issued Department Order No: 0918 creating a
special panel of prosecutors (First Panel) to conduct
preliminary investigation
 On June 8, 2011, the First Panel concluded its
preliminary investigation and issued the Resolution
11 dismissing the Affidavit-Complaint.
 On June 28, 2011, Dr.Inocencio-Ortega (wife of
deceased) filed a Motion to Re-Open Preliminary
Investigation, which, among others, sought the
admission of mobile phone communications
between former Governor Reyes and Edrad.12 On
July 7, 2011, while the Motion to Re-Open was still
pending, Dr.Inocencio-Ortega filed a Motion for
Partial Reconsideration Ad Cautelam of the
Resolution dated June 8, 2011. Both Motions were
denied by the First Panel in the Resolutiondated
September 2, 2011.
 On September 7, 2011, the Secretary of Justice
issued Department Order No. 710 creating a new
panel of investigators (Second Panel) to conduct a
reinvestigation of the case.
 Department Order No. 710 ordered the
reinvestigation of the case "in the interest of service
and due process" to address the offer of additional
evidence denied by the First Panel in its Resolution
dated September 2, 2011. The Department Order
also revoked Department Order No. 091.
 Pursuant to Department Order No. 710, the Second
Panel issued a Subpoena requiring former Governor
Reyes to appear before them on October 6 and 13,
2011 and to submit his counter-affidavit and
supporting evidence.
 On October 3, 2011, former Governor Reyes filed
before the Court of Appeals a Petition for Certiorari
and Prohibition with Prayer for a Writ of Preliminary
Injunction and/or Temporary Restraining Order
assailing the creation of the Second Panel. In his
Petition, he argued that the Secretary of Justice
gravely abused her discretion when she constituted
a new panel. He also argued that the parties were
already afforded due process and that the evidence
to be addressed by the reinvestigation was neither
new nor material to the case.
 On March 12, 2012, the Second Panel issued the
Resolution finding probable cause and
recommending the filing of informations on all
accused, including former Governor Reyes.20
Branch 52 of the Regional Trial Court of Palawan
subsequently issued warrants of arrest on March 27,
2012. However, the warrants against former
Governor Reyes and his brother were ineffective
since the two allegedly left the country days before
the warrants could be served.
 In his Supplemental Petition, former Governor Reyes
argued that the Regional Trial Court could not
enforce the Second Panel's Resolution dated March
12, 2012 and proceed with the prosecution of his
case since this Resolution was void.
Issue:
Whether or not under the 2000 NPS Rule on
Appeal, the Secretary of Justice may, even without a
pending petition for review, motupropio order the
conduct of a reinvestigation
Ruling:
Yes. The 2000 NPS Rule on Appeal requires the
filing of a petition for review before the Secretary of
Justice can reverse, affirm, or modify the appealed
resolution of the provincial or city prosecutor or chief
state prosecutor.The Secretary of Justice may also
order the conduct of a reinvestigation in order to
resolve the petition for review. Under Section 11:
SECTION 11. Reinvestigation. If the Secretary
of Justice finds it necessary to reinvestigate the case,
the reinvestigation shall be held by the investigating
prosecutor, unless, for compelling reasons, another
prosecutor is designated to conduct the same.
Under Rule 112, Section 4 of the Rules of
Court, however, the Secretary of Justice may
motuproprio reverse or modify resolutions of the
provincial or city prosecutor or the chief state
prosecutor even without a pending petition for
review.
In short, the secretary of justice, who has the
power of supervision and control over prosecuting
officers, is the ultimate authority who decides which of
the conflicting theories of the complainants and the
respondents should be believed.
Dr.Inocencio-Ortega filed a Motion to Re-Open
the preliminary Investigation before the First Panel in
order to admit as evidence mobile phone conversations
between Edrad and respondent and argued that these
phone conversations tend to prove that respondent was
the mastermind of her husband's murder. The First
Panel, however, dismissed the Motion on the ground
that it was filed out of time.
Under these circumstances, it is clear that the
Secretary of Justice issued Department Order No. 710
because she had reason to believe that the First Panel's
refusal to admit the additional evidence may cause a
probable miscarriage of justice to the parties. The
Second Panel was created not to overturn the findings
and recommendations of the First Panel but to make
sure that all the evidence, including the evidence that the
First Panel refused to admit, was investigated.
Therefore, the Secretary of Justice did not act in an
"arbitrary and despotic manner, by reason of passion or
personal hostility."
2. WEBB VS. DE LEON
GR 12134, 247 SCRA
652 (Aug 23, 1995)
4, 247 SCRA 652 (Aug 23, 1995)
3. De Ocampovs Secretary of Justice, G.R. No.
147932, 25 January 2006
Facts:
Magdalena Dacarra executed a sworn statement
at the QC Women’s Desk because her son, Ronald, was
complaining of dizziness. Ronald told his mother that his
teacher, Laila, banged his head against Lorendo’s head.
Ronald was brought to the quack doctor, then to East
Avenue Medical for X-ray. It was found ouot that
Ronald’s head was fractured and he eventually died.
INQUEST PROCEEDINGS: During the Inquest
proceedings, it was ruled that there was insufficient
evidence to support the charge of homicide against De
Ocampo.
PRELIMINARY INVESTIGATION: Lorendo’s
mother attended the hearing and alleged that De
Ocampo offered her P100,000 for non-appearance at
the preliminary investigation. Two other persons, one
claiming to have witnessed the head-banging incident
and the other, a victim of De Ocampo came forward.
De Ocampo submitted her counter-affidavit
stating that Ronald’s head condition was due to previous
vehicular accident and the immediate cause of Ronald’s
death was “Cardio pulmonary arrest” based on the
autopsy report.
The investigating prosecutor issued a resolution
finding probable cause against De Ocampo. De Ocampo
subsequently filed a petition for review with DOJ.
DOJ RESOLUTION: The DOJ denied the
petition for review. It also upheld the prosecutor’s
findings and pointed out that De Ocampo never denied
the act. De Ocampo filed a motion for reconsideration Issue:
which is also denied.
Whether or not a preliminary investigation
ISSUE conducted by a Provincial Election Supervisor involving
election offenses have to be coursed through the
Whether or not there is a denial of due process Provincial Fiscal now Provincial Prosecutor, before the
during the preliminary investigation for not conducting a Regional Trial Court may take cognizance of the
clarificatory hearing investigation and determine whether or not probable
cause exists?
RULING:

No denial of due process. Ruling:

RATIO: No. The 1987 Constitution mandates the

A clarificatory hearing is not indispensable
during Preliminary Investigation. It is only optional on the
part of investigating officer as evidenced by the use of
term. (Sec 3, Rule 112)
If the investigating officer believes that there are
matters to be clarified, he may set a hearing to propound
clarificatory questions as to the parties of their
witnesses, during which the parties shall be afforded an
opportunity to be present but w/o the right to cross-
examine.
In this case, prosecutor believed that there are
no more matters for clarification.
Petitioner was not deprived of due process. She
was given the opportunity to be heard and she even
submitted her counter-affidavit.
Preliminary investigation is merely inquisitorial.
Sole purpose is to determine whether or not a crime has
been committed. If the prosecutor is already satisfied, he
can reasonably determine the existence of probable
cause and may terminate proceedings and resolve
cases.
4. Estrada v. Ombudsman, G.R. No. 212140-41,
January 21, 2015
5. People v. Inting G.R. No. 88919, July 25, 1990
Facts:
On February 6, 1988, Mrs.Editha Barba filed a
letter-complaint against OIC-Mayor Dominador
Regalado of Tanjay, Negros Oriental with the
Commission on Elections (COMELEC), for allegedly
transferring her, a permanent Nursing Attendant, Grade
I, in the office of the Municipal Mayor to a very remote
barangay and without obtaining prior permission or
clearance from COMELEC as required by law.
COMELEC not only to investigate but also to prosecute
cases of violation of election laws. This means that the
COMELEC is empowered to conduct preliminary
investigations in cases involving election offenses
for the purpose of helping the Judge determine
probable cause and for filing an information in court.
This power is exclusive with COMELEC.
Hence, the Provincial Fiscal, as such, assumes
no role in the prosecution of election offenses. If the
Fiscal or Prosecutor files an information charging an
election offense or prosecutes a violation of election law,
it is because he has been deputized by the COMELEC.
He does not do so under the sole authority of his office.
(People v. Basilla, et al., G.R. Nos. 83938-40, November
6, 1989). In the instant case, there is no averment or
allegation that the respondent Judge is bringing in the
Provincial Fiscal as a deputy of COMELEC.
Note:
We reiterate that preliminary investigation should
be distinguished as to whether it is an investigation for
the determination of a sufficient ground for the filing of
the information or it is an investigation for the
determination of a probable cause for the issuance of a
warrant of arrest. The first kind of preliminary
investigation is executive in nature. It is part of the
prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary
examination is judicial in nature and is lodged with the
judge. It is in this context that we address the issue
raised in the instant petition so as to give meaning to the
constitutional power vested in the COMELEC regarding
election offenses.

After a preliminary investigation of Barba’s

complaint, Atty. Lituagas (Provincial Election Supervisor
of Dumaguete City) found a prima facie case.Hence, on
September 26, 1988, he filed with the respondent trial
court a criminal case for violation of section 261, Par.
(h), Omnibus Election Code against the OIC-Mayor.

However, in an order dated October 3, 1988 and

before the accused could be arrested, the trial court set
aside its September 30, 1988 order on the ground that
Atty. Lituanas is not authorized to determine
probable cause pursuant to Section 2, Article III of the
1987 Constitution. In another order dated November 22,
1988, the court gave Atty. Lituanas fifteen (15) days from
receipt to file another information charging the same
offense with the written approval of the Provincial Fiscal.

Atty. Lituanas failed to comply with the order.

Hence, the trial court quashed the information. A motion
for reconsideration was denied. Hence, this petition.