preliminary investigation and inquest

CRIMINAL PROCEDURE PCGPINEDA RN, MAN 2015

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PRELIMINARY INVESTIGATION AND INQUEST

I. Definition, nature and purpose.

A. Nature and Views

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

Purpose:

To spare the person charged with a crime of the inconvenience, expense and burden of defending himself in a formal trial until reasonable probability of his guilt has passed upon in a more or less summary proceeding by a competent officer.

Saves the state unnecessary expenses in holding trials based on false, frivolous or groundless charges

PCGG VS DESIERTO 397 SCRA 171 (2003) FACTS: On 8 October 1992, President Fidel V. Ramos issued Administrative Order No. 13, creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman; the Solicitor General as Vice Chairman; and one representative each from the Office of the Executive Secretary, Department of Finance, Department of Justice, Development Bank of the Philippines, Philippine National Bank, Asset Privatization Trust, Government Corporate Counsel, and the Philippine Export and Foreign Loan Guarantee Corporation as members. In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated 15 July 1993, the COMMITTEE reported that the Philippine Seeds, Inc., (hereafter PSI) of which the respondents in OMB-0-96-0968 were the Directors, was one of the twenty-one corporations which obtained behest loans. On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG consultant detailed with the COMMITTEE, filed with the OMBUDSMAN a sworn complaint against the Directors of PSI namely, Jose Z. Osias, Pacifico E. Marcos, Eduardo V. Romualdez, Fernando C. Ordoveza, and Juanito Ordoveza; and the Directors of the Development Bank of the Philippines who approved the loans for violation of paragraphs (e) and (g) of Section 3 of Republic Act No. 3019, otherwise known as Anti-Graft and Corrupt

Practices. ISSUE: Does the imprescriptibility of the right of the State to recover ill-gotten wealth apply to both civil and criminal cases? RULING: No. The so-called imprescriptibility as provided in Section 15 of Article XI of the Constitution applies only to civil actions for recovery of ill-gotten wealth, and not to criminal cases, such as the complaint against the respondents in OMB-0-96-0968. This is clear from the proceedings of the Constitutional Commission of 1986. Since the law alleged to have been violated, i.e., paragraphs (e) and (g) of Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule in the computation of the prescriptive period is Section 2 of Act No. 3326, as amended, which provides, Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and institution of judicial proceedings for its investigation and punishment. In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the beneficiaries of the loans. Thus, the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission.

BAYATAN VS COMELEC 396 SCRA 703 (2003) FACTS: Petitioners, Reynato Baytan, Reynaldo Baytan and Adrian Baytan were on their way to register for the May 1998 elections when they met the newly elected Barangay Captain, Roberto Ignacio, in Barangay 18, Zone II of Cavite City, who led them to register in Precinct No. 83-A of Barangay 18. Upon realizing that their residence is situated within the jurisdiction of Barangay 28 not Barangay 18, petitioners proceeded to Precinct 129-A of Barangay 28 and registered anew. Subsequently, petitioners sent a letter to former COMELEC AssistantExecutive Director Jose Pio O. Joson requesting for advice on how to cancel their previous registration. Petitioners Voters Registration Records were forwarded to the Provincial Election Supervisor, Atty. Juanito V. Ravanzo, for evaluation, who, subsequently, recommended filing an information for double registration against petitioners. The COMELEC

affirmed Ravanzos resolution. Petitioners moved for reconsideration, which, was denied by COMELEC en banc. Hence, this petition. ISSUE: Whether COMELEC acted with grave abuse of discretion when it recommended the prosecution of petitioners for double registration despite lack of intent and substantial compliance with the requirement of cancellation of previous registration. HELD: No. There is no question that petitioners registered twice on different days and in different precincts without canceling their previous registration. Since "double registration" is malum prohibitum, petitioners claim of lack of intent to violate the law is inconsequential. Neither is the letter to Joson an application to cancel their previous registration. This letter was sent after their second registration was accomplished and after the election officer of Cavite City had already reported their act of double registration to a higher official. Moreover, petitioners claims of honest mistake, good faith and substantial compliance with the Election Codes requirement of cancellation of previous registration are matters of defense best ventilated in the trial proper rather than at the preliminary investigation. The established rule is that apreliminary investigationis not the occasion for the full and exhaustivedisplay of the parties evidence. It is for the presentation of such evidenceonly as may engender a well-grounded belief that an offense has been committed and the accused is probably guilty thereof.

DOJ-NPS MANUAL, PART III PRELIMINARY INVESTIGATION

PART II INQUEST

B. DEFINITION: WHEN REQUIRED

RULE 112

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)


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DOJ NPS MANUAL PART III

SECTION 1. Concept of preliminary investigation - A preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof and should be held for trial.

A preliminary investigation is essentially a judicial inquiry since there is the opportunity to be heard, the production and weighing of evidence, and a decision rendered on the basis of such evidence. In this sense, the investigating prosecutor is a quasi-judicial officer.

SEC. 2. Purpose of preliminary investigation. A preliminary investigation is intended:

a) to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime and from the trouble, expense and anxiety of a public trial; and

b) to protect the State from having to conduct useless and expensive trials .

SEC. 3. Nature of preliminary investigation. - The conduct of a preliminary investigation is a substantive right which the accused may invoke prior to or at least at the time of plea, the deprivation of which would be a denial of his right to due process.

SEC. 7. Commencement of Preliminary Investigation. - A preliminary investigation proceeding is commenced:

a) by the filing of a complaint by the offended party or any competent person directly with the Office of the Investigating Prosecutor or Judge;

b) by referral from or upon request of the law enforcement agency that investigated a criminal incident;

c) upon request of a person arrested or detained pursuant to a warrantless arrest who executes a waiver of the provisions of Article 125 of the Revised Pen al Code, as amended; d) by order or upon directive of the court or other competent authority; or

e) for election offenses, upon the initiative of the Commission on Election s, or upon written complaint by any citizen, candidate, registered political par ty, coalition of registered parties or

organizations under the party-list system or any accredited citizen arm of the Commission on Elections.

RULES ON JUVENILES IN CONFLICT WITH THE LAW

Section 8. Procedure for Handling Children Exempted from Criminal Liability. - If it is determined at the initial contact that the child is 15 years of age or below, the procedure provided in Section 20, Republic Act No. 9344 shall be observed as follows:

(a) The authority who had the initial contact with the child shall immediately release the child to the custody of the mother or father, or the appropriate guardian or custodian, or in their absence, the nearest relative.

(b) The authority shall immediately notify the local social welfare and development officer of the taking of the child into custody.

(c) The local social welfare and development officer shall, with the consent of the child and the person having custody over the child, determine the appropriate intervention programs for the child.

(d) If the child's parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children; a local social welfare and development officer; or, when and where appropriate, the Department of Social Welfare and Development.

(e) If the child has been found by the local social welfare and development office to be abandoned, neglected or abused by the parents, or if the parents and the child do not consent to or do not comply with the prevention program, the Department of Social Welfare and Development or the Local Social Welfare and Development Office shall file before the court a petition for involuntary commitment pursuant to Presidential Decree No. 603, otherwise known as "The Child and Youth Welfare Code." (a)

Section 13. Taking Custody of a Child Without a Warrant. - The law enforcement officer or a private person taking into custody a child in conflict with the law without a warrant shall observe the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure and shall forthwith deliver the child to the nearest police station. The child shall be proceeded against in accordance with Section 7 of Rule 112 of the Rules of Criminal Procedure.

HASHIM VS BONCAN 71 PHIL 216 (1941) SUMMARY:

Hashim was arrested without a warrant for possession of counterfeit treasury certificates. The Asst. City Fiscal of Manila conducted the PI (more like an inquest) and filed the information. Hashim's counsel invoked provisions of the Rules requiring officers conducting PI to inform the accused of substance of the testimony and evidence against him. SC held that said provisions apply only when the PI is conducted by justices and judges, not by fiscals FACTS: On August 6, 1940, Hashim was arrested without a warrant for possession of counterfeit treasury certificates of the Commonwealth of the Philippines. He was released upon filing a bond. The next day, a complaint was filed against him with the Office of the City Fiscal. The Assistant City Fiscal of Manila conducted an investigation pursuant to section 2465 of the Revised Administrative Code, as amended, and lodged an information against him. A warrant of arrest was issued, and he was later admitted to bail. Before arraignment, his counsel filed motions asking the Fiscal to furnish the clerk of court with the testimony of the witnesses who testified at the PI. The Fiscal opposed the motion on the ground that the provisions of the Rules of Court on "Preliminary Investigation" do not apply to PIs conducted by the Fiscal for the City of Manila. CFI Manila Judge Boncan dismissed the motion. By another motion, petitioner asked the warrant be cancelled and insisted that the court conduct the PI referred to in Sec 1, Rule 108 of the Rules of Court. The respondent Fiscal filed an objection on the ground, among others, that there was no necessity for the court to conduct a PI in this case because the substitute therefor had already been performed by the Fiscal. Judge Boncan again dismissed. PETITIONERS ARGUMENT: Judge Boncan should conduct a PI. If not, the Fiscal should be ordered to furnish the clerk of court with abstract of the testimony of the witnesses and such other evidence based on Sec. 13 of Rule 108 which says: SEC. 13. Transmission of abstract . Upon the conclusion of the preliminary investigation, the judge or corresponding officer shall transmit without delay to the clerk of the Court of First Instance having jurisdiction of the offense (a) the warrant, if the arrest was by virtue of a warrant; (b) an abstract of the testimony of the witnesses; (c) the undertaking or bail of the defendant, and (d) the person of the defendant if not on bail. RESPONDENT (FISCAL)S ARGUMENT: No need for the court to conduct PI because the substitute therefor had already been performed in accordance with law (Revised Administrative Code) by the office of the Fiscal of the City of Manila. Moreover, the provisions of Rule 108 of the


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Rules of Court on "Preliminary Investigation" do not apply to a PI conducted by the Fiscal for the City of Manila or any of his assistants. ISSUES: W/N in a PI conducted by the City Fiscal of Manila, the accused is entitled to be informed of the substance of the testimony and of the evidence presented against him (Broader question: W/N existing law under which the City Fiscal conducts PI has been supplanted by the New Rules of Court). HELD: NO. Rule 108 pertains to a PI conducted by a justice of the peace or by a municipal judge, not by a Fiscal. Petition for certiorari and mandamus DISMISSED. The phrase "corresponding officer" in Sec. 13 does not pertain to the Fiscal. It refers to other officers also authorized to conduct PI, e.g. the justice of the peace. 1. The purpose of transmission of abstract was explained in US v. Rafael: The purpose of requiring the justice of the peace to forward to the provincial Fiscal a brief statement of the substance of the testimony is to enable the provincial Fiscal to decide 1) W/N he shall file a complaint against the defendant, and 2) to enable him, in case he decides to prosecute, to properly formulate said complaint. It is practically impossible, in the thickly populated provinces of the Philippine Islands, for the provincial Fiscal to personally attend all of the trials and PI held before the justices of the peace. o If the abstract in Sec. 13 is intended for the Fiscal, the duty to transmit is plainly not cast upon him (if it's for him, it can't be from him). Further, if the said abstract is for the use and guidance of the Fiscal, the failure to transmit it cannot be prejudicial to the accused. 2. Sec. 13 also requires the "corresponding officer" to transmit the warrant of arrest. Hence, the officer must be one who is authorized to issue such a warrant. The Fiscal is not so authorized.3. Sec. 13 also assumes the 2-stage PI provided for justices of the peace and judges, not for the Fiscal. Under existing laws, the City Fiscal conducts a single investigation, and this is a summary one. To say that the respondent Fiscal is bound by the procedure provided in the cited section is to duplicate proceedings, where at present there is but one, in contradiction with the spirit of simplicity underlying the new Rules.4. Sec. 13 requires the "corresponding officer" to transmit the person of the defendant if not on bail. This is impossible for the Fiscal to comply with because he has no direct control over the person of the accused, not being empowered to order his arrest or release.

To subject the respondent Fiscal to the provisions of Rule 108 Sec. 11 (Rights of defendant after arrest) is to prolong an otherwise brief investigation which said officer is authorized to conduct. The New Rules of Court have not repealed the existing laws governing the Fiscal's power to conduct PI. If neither Sec. 11 nor Sec. 13 of Rule 108 is applicable to the PI conducted by the City Fiscal, as above shown, and if existing legislation thereon is to be deemed repealed, then the matter would be left uncovered by rule or law. The right to PI is statutory, not constitutional. Its oft-repeated purpose is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions. The new Rules were drafted in the light of the Court's experience with cases where preliminary investigations had dragged on for weeks and even months. The occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well- grounded belief that an offense has been committed and that the accused is probably guilty thereof. When all this is fulfilled, the accused will not be permitted to cast about for fancied reasons to delay the proceedings; the time to ask for more is at the trial. PI conducted by justice of the peace/ municipal judge 2 stages: The investigation 1) before and for the purpose of the issuance of the warrant of arrest, and 2) that thereafter made for the purpose of their releasing the offender or filing the information PI conducted by a fiscal Single, summary investigation prior to filing the information in court

TANDOC VS RESULTAN 175 SCRA 37 (1989) NATURE Petition for certiorari to annul orders of the City Court of San Carlos FACTS - October 19, 1980: Respondents entered the store and dining room of the Pacita Tandoc without her permission. There was an altercation between Tandoc and respondent, Arnold Payopay, regarding the stoning of the store and house. Payopay picked up stones and struck Tandoc but instead her helper, Bonifacio Menor, was hit and suffered physical injuries which according to the medico-legal certificate will heal in more than 30 days. Beda Acosta, who was behind Arnold Payopay, picked

up the stone and struck Tandoc but her helper, Fred de la Vega, was hit instead and suffered injuries which injury will heal in less than 9 days. - 19 October 1980: a criminal complaint was lodged with the Office of the City Fiscal with the charges of Serious Physical Injuries, filed by Bonifacio Menor against Arnulfo (Arnold) Payopay; Slight Physical Injuries, filed by Fred de la Vega against Beda Acosta, and Trespass to Dwelling, filed by Pacita Tandoc against Arnulfo Payopay, Beda Acosta, Manuel Cancino, Nadong Fernandez and Arturo Syloria. - 2 December 1980: Arnulfo Payopay and his father Conrado Payopay, Sr., together with Manuel Cancino, also filed a complaint with the Office of the City Fiscal, against Pedro Tandoc, Pacita Tandoc, Rudy Diaz, Fred Menor, Rogelio Ercella, Juan Rosario and Fred de la Vega, with the charges of Trespass to Dwelling, Serious Oral Defamation, Grave Threats and Physical Injuries - 10 December 1980: the investigating fiscal found reasonable ground to believe that respondents Arnulfo Payopay, Beda Acosta, Manuel Cancino, Nadong Fernandez and Arturo Syloria committed the crimes charged. Informations were filed with the City Court. - With respect to the criminal complaint filed by Arnulfo Payopay and Manuel Cancino against petitioners for Serious Oral Defamation, Grave Threats and Physical Injuries, the Office of the City Fiscal recommended the dropping of said charges because they "were found to be in the nature of a counter charge, the same having been filed after more than 1 month from the date of the alleged incident." However, as to the charge of Trespass to Dwelling filed by Conrado Payopay, Sr. against Pedro Tandoc, a prima facie case was found by the investigating fiscal. Thus, an information was filed with the City Court. - 28 July 1981: Arnulfo Payopay, Conrado Payopay, Sr. and Manuel Cancino, directly lodged with the City Court of San Carlos City the following criminal complaints: (1) against Pedro Tandoc, Rogelio Ercella, Rudy Diaz, Juan Rosario and Fred Menor for Serious Physical Injuries, filed by Arnulfo (Arnold) Payopay; (2) against Rudy Diaz, Juan Rosario and Fred Menor for Trespass to Dwelling, filed by Conrado Payopay, Sr.; (3) against Pedro Tandoc, Rudy Diaz, Juan Rosario and Fred dela Vega for Less Serious Physical Injuries, filed by Manuel Cancino; (4) against Pedro Tandoc, Rudy Diaz, Rogelio Ercella, Juan Rosario & Fred Menor for Grave Threats to Kill, with Arnulfo Payopay as private complainant. - 13 August 1981: City Court, after conducting a preliminary examination of the 4 aforementioned cases, found reasonable ground to believe that the offenses charged may have been committed by the herein petitioners and that the latter were probably guilty thereof.


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- The issuance of warrants of arrest was ordered against them, although said warrants were later suspended upon motion of the petitioners. - A motion for reconsideration was denied. - Petitioners moved for a re-investigation of the cases by the Office of the City Fiscal. The court a quo denied said motion. Petitioners sought a reconsideration of said order, but it was likewise denied. ISSUE WON the city court has the power and authority to conduct a new a preliminary examination of charges, which were previously the subject of a preliminary investigation conducted by the Office of the City Fiscal and thereafter dismissed by the latter. HELD YES Ratio 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. Reasoning - The offenses charged against petitioners for Trespass to Dwelling, Grave Threats and Physical Injuries were all within the jurisdiction of the City Court. 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 preliminary investigation proper conducted by 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. - The prescriptive period of a crime depends upon the penalty imposed by law. The penalties for the crimes charged are: arresto mayor for Trespass to Dwelling, Grave Threats and Less Serious Physical Injuries; and arresto mayor in its maximum period to prision correccional in its minimum period for Serious Physical Injuries. The prescriptive period of offenses punishable by arresto mayor is 5 years, while crimes punishable by correctional penalties prescribe in 10 years. The complaints were filed with the City Court only 9 months from said occurrence. - The re-investigation sought by petitioners applies only to 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. On Preliminary Investigation: - Purpose: 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; and to protect the state from having to conduct useless and expensive trials. - Stages: (1) 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; (2) 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. - Nature: merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information; not a trial of the case on the merits 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. - Under Section 10, Rule 112 of the 1964 Revised Rules of Criminal Procedure, in cases falling within the exclusive jurisdiction of an inferior court, as well as in cases within the concurrent jurisdiction of the city courts or municipal courts with Courts of First Instance, the accused was not entitled to be heard in a preliminary investigation proper. The reason behind this rule is as follows: " The loss of time entailed in the conduct of preliminary investigations, 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 preliminary investigation), and of a prompt verdict on his guilt or innocence. On the other hand, the so-called first stage of preliminary investigation 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." - The result of a preliminary investigation can neither constitute nor give rise to the defense of double jeopardy in any case,

because such preliminary investigation is not and does not in itself constitute a trial or even any part thereof. In order that the defense of jeopardy may lie, there must be a former judgment, either of acquittal or of conviction, rendered by a court competent to render the same, not only by reason of the offense committed, which must be the same or at least comprised within it, but also by reason of the place where it was committed. Dispositive Petition dismissed.

DOROMAL VS SANDIGANBAYAN 177 SCRA 354 (1989) FACTS: - October 1987, the Special Prosecution Officer conducted a preliminary investigation of the charge against petitioner, Quintin Doromal, a former commissioner of the Presidential Commission on Good Government for violation of the Anti-Graft and Corrupt Practices Act in connection with his shareholdings and position as president and director of the Doromal International Trading Corporation which submitted bids to supply equipment to the DECS and the National Manpower and Youth Council. - January 25, 1988, Special Prosecution Officer filed in the Sandiganbayan an information against petitioner. - The petitioner filed a petition for certiorari and prohibition in the SC questioning the jurisdiction of the Tanodbayan to file the information without the approval of the Ombudsman after the effectivity of the 1987 Constitution. - June 30, 1988, the SC annulled the information - Upon the annulment of the information against the petitioner, the Special Prosecutor sought clearance from the Ombudsman to refile it - The Ombudsman granted clearance but advised that some changes be made in the information previously filed - A new information was filed in the Sandiganbayan - Petitioner filed a motion to quash the information for being invalid because there had been no preliminary investigation and defective because the facts alleged do not constitute the offense charged. - The Sandiganbayan denied the motion to quash - The Special Prosecutor filed a motion to suspend accused pendente lite. Over the objection of the accused the Sandiganbayan ordered his suspension pendente lite from his position as PCGG Commissioner and from any other office he may be holding. ISSUES 1. WON the Sandiganbayan committed grave abuse of discretion in denying petitioners motion to quash the information


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2. WON the Sandiganbayan committed grave abuse of discretion in suspending the petitioner from office despite the Presidents having previously approved his indefinite leave of absence until final decision in the case HELD 1. YES - A new preliminary investigation of the charge against the petitioner is in order not only because the first was a nullity but also because the accused demands it as his right. Moreover, the charge against him had been changed as directed by the Ombudsman. The petitioners right to a preliminary investigation of the new charge is secured to him by Rule 112 of the 1985 Rules on Criminal Procedure. That right of the accused is substantial and its denial over his opposition is a prejudicial error in that it subjects the accused to loss of life, liberty, or property without due process of law. Since the right belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it. However, as the absence of a preliminary investigation is not a ground to quash the complaint or information, the proceedings upon such information in the Sandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. 2. NO - Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws, the laws command that he shall be suspended from office pendent lite must be obeyed. His approved leave of absence should not be a bar to his preventive suspension for, as indicated by the Solicitor General, and approved leave, whether it be for a fixed of indefinite period may be cancelled or shortened at will by the incumbent. However, since the preventive suspension has exceeded the reasonable maximum period of ninety days provided in Section 42 of the Civil Service Decree of the Philippines, it should now be lifted. Dispositive Petition for certiorari and prohibition is granted. ALLADO v DIOKNO 232 SCRA 192 BELLOSILLO; May 5, 1994 NATURE Petition for certiorari and prohibition with prayer for a temporary restraining order FACTS - Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the College of Law, University of the Philippines, are

partners of the Law Firm of Salonga, Hernandez and Allado. In the practice of their profession, and on the basis of an alleged extrajudicial confession of a security guard (Umbal), they have been accused of the heinous crime of kidnapping with murder of a German national named Van Twest by the Presidential Anti-Crime Commission (PACC) and ordered arrested without bail by respondent judge. - Petitioners filed this petition and principally contended that respondent judge acted with grave abuse of discretion and in excess of jurisdiction in "whimsically holding that there is probable cause against petitioners without determining the admissibility of the evidence against petitioners and without even stating the basis of his findings," and in "relying on the Resolution of the Panel and their certification that probable cause exists when the certification is flawed." Petitioners maintain that the records of the preliminary investigation which respondent judge solely relied upon failed to establish probable cause against them to justify the issuance of the warrant of arrest. Petitioners likewise assail the prosecutors' "clear sign of bias and partiality." - On the other hand, the Office of the Solicitor General argues that the determination of probable cause is a function of the judge who is merely required to personally appreciate certain facts to convince him that the accused probably committed the crime charged. ISSUE WON the respondent judge committed grave abuse of discretion in the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest HELD - In the Order of respondent judge, it is expressly stated that "[t]his court after careful evaluation of the evidence on record, believes and rules that probable cause exists; and therefore, a warrant of arrest should be issued." However, we are unable to see how respondent judge arrived at such ruling. We have painstakingly examined the records and we cannot find any support for his conclusion. On the contrary, we discern a number of reasons why we consider the evidence submitted to be insufficient for a finding of probable cause against petitioners. - The PACC relies heavily on the sworn statement of Security Guard Umbal who supposedly confessed his participation in the alleged kidnapping and murder of Van Twest. For one, there is serious doubt on Van Twest's reported death since the corpus delicti has not been established, nor have his remains been recovered. Umbal claims that Van Twest was completely burned into ashes with the use of gasoline and rubber tires from around ten o'clock in the evening to six o'clock the next morning. This is highly improbable, if not ridiculous. A human

body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust. - Strangely, if not awkwardly, after Van Twest's reported abduction which culminated in his decimation by cremation, his counsel continued to represent him before judicial and quasi-judicial proceedings. Hence, even Asst. Solicitor General Estoesta believes that counsel of Van Twest doubted the latter's death. - Verily, respondent judge committed grave abuse of discretion in issuing the warrant for the arrest of petitioners it appearing that he did not personally examine the evidence nor did he call for the complainant and his witnesses in the face of their incredible accounts. Instead, he merely relied on the certification of the prosecutors that probable cause existed. For, otherwise, he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of petitioners. - In Soliven v. Makasiar, we said that the judge (a) shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause. - In People v. Inting, we emphasized the important features of the constitutional mandate: (a) The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes this determination; (b) The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making the determination of probable cause. The judge does not have to follow what the prosecutor presents to him. By itself, the prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcript of stenographic notes (if any), and all other supporting documents behind the prosecutor's certification which are material in assisting the judge in his determination of probable cause; and, (c) Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries be conducted in the course of one and the same proceeding, there should be no confusion about their objectives. The determination of probable cause for the warrant is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty


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of the offense charged and therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is a function of the prosecutor. - ALLADO DOCTRINE: If upon the filing of the information in court, the trial judge, after reviewing the information and the document attached thereto, finds that no probable cause exists, he must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists. Dispositive Petition granted

COJUANGCO VS SANDIGANBAYAN 190 SCRA 226 (1990) FACTS: Facts: President Corazon C. Aquino directed the OSG to prosecute all persons involved in the misuse of coconut levy funds. Pursuant to the above directive the OSG created a task force to conduct a thorough study of the possible involvement of all persons in the anomalous use of coconut levy funds. Upon the creation of the PCGG under EO. 1 issued by President Aquino, the PCGG was charged with the task of assisting the President not only in the recovery of ill-gotten wealth or unexplained wealth accumulated by the former President, his immediate family, relatives, subordinates and close associates but also in the investigation of such cases of graft and corruption as the President may assign to the Commission from time to time and to prevent a repetition of the same in the future. Petitioner alleges that the PCGG may not conduct a preliminary investigation of the complaints filed by the Solicitor General without violating petitioner's rights to due process and equal protection of the law, and that the PCGG has no right to conduct such preliminary investigation. Issue : WON the Presidential Commission on Good Government (PCGG) has the power to conduct a preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against Eduardo Cojuangco, Jr. and other respondents for the alleged misuse of coconut levy funds. Held: the court ruled in the negative. Considering that the PCGG, like the courts, is vested with the authority to grant provisional remedies of (1)sequestration, (2)freezing assets, and (3)provisional takeover, it is indispensable that, as in the case of attachment and receivership, there exists a prima facie

factual foundation, at least, for the sequestration order, freeze order or takeover order, an adequate and fair opportunity to contest it and endeavor to cause its negation or nullification. Both are assured under the foregoing executive orders and the rules and regulations promulgated by the PCGG. The general power of investigation vested in the PCGG may be divided into two stages. The first stage of investigation which is called the criminal investigation stage is the fact finding inquiring which is usually conducted by the law enforcement agents whereby they gather evidence and interview witnesses after which they assess the evidence and if they find sufficient basis, file the complaint for the purpose of preliminary investigation. The second stage is the preliminary investigation stage of the said complaint. It is at this stage, as above discussed, where it is ascertained if there is sufficient evidence to bring a person to trial. It is in such instances that we say one cannot be "a prosecutor and judge at the same time. "Having gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to handle with impartiality the preliminary investigation of his own complaint, this time as a public prosecutor. The Court holds that a just and fair administration of justice can be promoted if the PCGG would be prohibited from conducting the preliminary investigation of the complaints subject of this petition and the petition for intervention and that the records of the same should be forwarded to the Ombudsman, who as an independent constitutional officer has primary jurisdiction over cases of this nature, to conduct such preliminary investigation and take appropriate action.

WEBB VS DE LEON 247 SCRA 652 (1995) FACTS: NATURE Petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus FACTS - Petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons were charged with the crime of Rape with Homicide (Vizconde massacre). - Petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. It is urged that this constitutes ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on

Criminal Procedure to discharge an accused as a state witness" based on Section 9, Rule 119 which gives the court the prerogative to approve the discharge of an accused to be a state witness. ISSUE WON Alfaro should be included as one of the accused in the information HELD - The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. - Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information.


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- Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof - Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. - The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Dispositive Petitions dismissed

C. PERSONS AUTHORIZED TO CONDUCT

RULE 112

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)

DOJ NPS SEC. 6. Officers Authorized to Conduct Preliminary Investigation. - The following may conduct a preliminary investigation;

a) Provincial or City Prosecutors and their assistants; b) Judges of 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 investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction.

VELASCO VS CASACLANG 294 SCRA 394 (1998)

BALGOS VS SANDIGANBAYAN 176 SCRA 287 (1989) NATURE Petition to review the decision of Sandiganbayan FACTS - Balgos et al were charged with violation of Section 3(c) of RA 3019, otherwise known as the Anti-Graft and Corrupt Practice Act, as amended, in an information that was filed with the Sandiganbayan by the Special Prosecutor which was approved by the Deputy Tanodbayan, after a preliminary investigation. - Lim, the plaintiff and prevailing party in Civil Case No. 4047 filed a complaint for rescission of the sale of the car by Juanito

Ang to private respondent Leticia Acosta-Ang for being allegedly in fraud of creditors. The said complaint was filed with the RTC of Nueva Vizcaya. On the same day, petitioners filed a motion for reinvestigation in the Tanodbayan. The same was granted. - The Tanodbayan ordered to dismiss the case for lack of merit and to withdraw the Information filed in Criminal Case No. 11414 as soon as possible in the interest of justice. - Tanodbayan filed with the Sandiganbayan a motion to withdraw the information against petitioners. This was denied. - BAlgos et al filed a motion to suspend proceedings in the criminal case against them on the ground of the existence of a prejudicial question in Civil Case No. 5307. This was likewise denied by the Sandiganbayan. ISSUE WON the denial by the Sandiganbayan of the motion to withdraw the information and of another motion to suspend proceedings on the ground of a prejudicial question in a pending civil action constitute a grave abuse of discretion. HELD NO. - While the public prosecutor has the sole direction and control in the prosecution of offenses, once the complaint or information is filed in court, the court thereby acquires jurisdiction over the case and all subsequent actions that may be taken by the public prosecutor in relation to the disposition of the case must be subject to the approval of the said court. Before a re-investigation of the case may be conducted by the public prosecutor, the permission or consent of the court must be secured. And if after such reinvestigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action must be addressed to the sound discretion of the court. - The only instance when the appellate court should stay the hand of the trial court in such cases is when it is shown that the trial court acted without jurisdiction or in excess of its jurisdiction or otherwise committed a grave abuse of discretion amounting to such lack or excess of jurisdiction. - Petitioners are public officers charged with having violated Section 3(c) of RA 3019, for evident bad faith and manifest partiality in enforcing the writ of execution in Civil Case No. 4047 against a Mustang car registered in the name of Leticia Acosta-Ang (complainant) who is not the judgment debtor thereby causing undue injury to said complainant and giving unwarranted benefits to the judgment creditor in said case. - Upon reinvestigation of the criminal case by the Tanodbayan, he found evidence tending to show that the sale of said car to the complainant by Juanito Ang, the judgment debtor, was a sham intended to defraud his creditors; that the deed of


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absolute sale which ostensibly was executed before a notary public appeared to be fictitious inasmuch as the entry of the document in the notarial register of said notary public on said date referred to a catering contract of other parties; that the certificate of registration of the car was issued to complainant only on June 13, 1984 which showed that the document of sale was actually executed only on or about the same date, that is, seven days after Juanito Ang received copy of the adverse decision in Civil Case No. 4047; and that upon the execution of the judgment, the car was found in the possession of Alvin, the son of Juanito Ang, who admitted that the car belonged to his father by showing the receipt of its repair in the name of Juanito Ang. This is the basis of the motion for withdrawal of the information of the Tanodbayan. - The respondents are aware that the complainant is not a party to the civil case filed by the creditor against spouses Juanito and Lydia Ang and that a writ of execution cannot be implemented validly against one who is not a party to the action. All these, coupled with the under haste in which the levy on the Mustang car was made without first ascertaining the true owner thereof demonstrate quite convincingly the evident bad faith and manifest partiality of the respondents, thereby giving unwarranted benefits to the judgment creditor to the damage and prejudice of the complainant. - Although at the reinvestigation, the Tanodbayan was persuaded that in fact the sale of the car to Leticia Ang was fraudulent, this did not necessarily clear petitioners of the aforesaid Anti-Graft charge against them. Still the burden is on the petitioners to establish that they acted in good faith in proceeding with the execution on the car even they were presented evidence tending to show it did not belong to Juanito Ang anymore. - The denial of the motion to suspend the criminal proceedings on the ground of the pendency of a prejudicial question in Civil Case No. 5307 is well taken. The doctrine of prejudicial question comes into play usually in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because whatsoever the issue raised in the civil action is resolved would be determinative juris et jure of the guilt or innocence of the accused in the criminal case. - The pending civil case for the annulment of the sale of the car to Leticia Ang is not determinative of the guilt or innocence of the petitioners for the acts allegedly committed by them in seizing the car. Even if in the civil action it is ultimately resolved that the sale was null and void, it does not necessarily follow that the seizure of the car was rightfully undertaken. The car was registered in the name of Leticia Ang six months before the seizure. Until the nullity of the sale is declared by the courts, the same is presumptively valid. Thus, petitioners must

demonstrate that the seizure was not attended by manifest bad faith in order to clear themselves of the charge in the criminal action. Dispositive The petition is DENIED for lack of merit and the restraining order dated June 6, 1989 is hereby lifted. No costs.

D. SCOPE

PADERANGA VS DRILON 196 SCRA 86 (1991) FACTS: Definition of Preliminary Examination Generally inquisitorial, often only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information. The institution of a criminal action depends upon the sound discretion of the Fiscal. He has the quasi-judicial discretion to determine wither or not a criminal case should be filed in Court. General Rule: Injunction will not be granted to restrain a criminal prosecution Exception (Brocka vs Enrile): 1. Afford adequate protection to the constitutional rights of the accused 2. Necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions 3. When there is a prejudicial question 4. When the acts of the officers are without or excess of authority 5. Double jeopardy is clearly apparent 6. When the Court has no jurisdiction over the offense 7. A case of persecution rather than prosecution 8. The charges are manifestly false and motivated by vengeance 9. Clearly no Prima Facie case against the accused The right of the accused to ask clarificatory questions is not ABSOLUTE. QUANTUM OF EVIDENCE required in preliminary investigation is such evidence sufficient to engender a well-founded belief as to the fact of the omission of a crime and respondents probable guilt.

II. Procedure in cases where preliminary investigation required

A. In cases cognizable by RTC

1. Conducted by prosecutor

RULE 112

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-


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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)

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)

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)

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)

RJCL Section 13. Taking Custody of a Child Without a Warrant. - The law enforcement officer or a private person taking into custody a child in conflict with the law without a warrant shall observe the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure and shall forthwith deliver the child to the nearest police station. The child shall be proceeded against in accordance with Section 7 of Rule 112 of the Rules of Criminal Procedure

RODIL VS GARCIA 104 SCRA 362 FACTS Accused Floro Rodil was charged under an Information that states that on April 24, 1971, with the use of a bladed dagger, attacked and stabbed to death Philippine Constabulary LieutenantGuillermo Masana in Indang, Cavite. The Information also alleges that Masana was in the performance of his official duties when the accused attacked him. April 24, 1971: Masana, the deceased, together with PC soldier Virgilio Fidel, Philippine Coast Guard serviceman Ricardo Ligsa and Patrolman Felix Mojica of Indang, Cavite, was having lunch inside a restaurant in front of the Indang market. While inside, they saw accused outside through the glass window of the restaurant. Rodil was blowing his whistle. His attention drawn by what Rodil was doing, Masana, dressed in civilian clothes, accompanied by Fidel, went out of the restaurant. He introduced himself as a PC officer, and asked Rodil whether the gun tucked on his waist had a license. Instead of answering the question, Rodil moved a step backward and tried to draw his gun. Fidel immediately grabbed Rodils gun and gave it to Masana. The three went inside the restaurant. Masana and Rodil occupied a separate table. Masana placed the gun on the table, pulled out a piece of paper and wrote a receipt for the gun and


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signed it. He asked Rodil to countersign it, but he refused. Rodil even asked Masana to return the gun to him, and of course Masana did not grant his plea. As Masana was about to stand up, Rodil pulled out a double-bladed dagger and stabbed Masana several times, on the chest and the stomach which led to his death. Indang Chief of Police Primo Panaligan was also inside the restaurant taking his lunch and helped in wresting the dagger from Rodil. Issues: (1) Whether or not the specific circumstance of contempt of, or insult to public authority can be appreciated as an aggravating circumstance (2) Whether or not the specific circumstance of insult or disregard of rank can be appreciated as an aggravating circumstance Held: (1) YES. In the case at bar, the aggravating circumstance of, or insult to, public authority under paragraph 2, Article 14 of the RPC can be appreciated. Evidence of prosecution clearly established that Indang Chief of Police Primo Panaligan was present in the restaurant as he was having lunch there too when the incident happened, which belies Rodils allegations that he went to the municipal police station and reported the incident as self-defense to the Chief. As a matter of fact, the chief of police was the one who embraced or grabbed Rodil from behind, wrested the dagger from him and subsequently brought him to the Indang municipal building. The chief of police should be considered a public authority or a person in authority for he is vested with jurisdiction and authority to maintain peace and order and is specifically duty bound to prosecute and to apprehend violators of the law and municipal ordinances. (2) YES. The aggravating circumstance of disregard of rank should be appreciated because the victim identified himself as a PC officer to Rodil who was merely a member of the Anti-Smuggling Unit and was therefore inferior both in rank and social status to the victim. The difference in official and social status between a PC lieutenant and a mere member of an anti-smuggling unit is patent. If Rodil was charged with the complex crime of murder with assault against an agent of a person in authority and not merely murder, then the aggravating circumstance of disregard of rank may not be appreciated because that circumstance will be absorbed into the charge of assault against an agent of a person in authority. But inthe case at bar, the Information charges Rodil with

murder only. Therefore, the aggravating circumstance of disregard of rank may be appreciated in the imposition of penalties. EFFECT TO PENALTY IMPOSABLE: With two aggravating circumstances and no mitigating circumstance, the appellant is condemned to suffer the maximum period of reclusin temporal, the penalty prescribed for homicide.

ALLADO VS DIOKNO 104 SCRA 192 (1994) FACTS: NATURE Petition for certiorari and prohibition with prayer for a temporary restraining order FACTS - Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the College of Law, University of the Philippines, are partners of the Law Firm of Salonga, Hernandez and Allado. In the practice of their profession, and on the basis of an alleged extrajudicial confession of a security guard (Umbal), they have been accused of the heinous crime of kidnapping with murder of a German national named Van Twest by the Presidential Anti-Crime Commission (PACC) and ordered arrested without bail by respondent judge. - Petitioners filed this petition and principally contended that respondent judge acted with grave abuse of discretion and in excess of jurisdiction in "whimsically holding that there is probable cause against petitioners without determining the admissibility of the evidence against petitioners and without even stating the basis of his findings," and in "relying on the Resolution of the Panel and their certification that probable cause exists when the certification is flawed." Petitioners maintain that the records of the preliminary investigation which respondent judge solely relied upon failed to establish probable cause against them to justify the issuance of the warrant of arrest. Petitioners likewise assail the prosecutors' "clear sign of bias and partiality." - On the other hand, the Office of the Solicitor General argues that the determination of probable cause is a function of the judge who is merely required to personally appreciate certain facts to convince him that the accused probably committed the crime charged. ISSUE

WON the respondent judge committed grave abuse of discretion in the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest HELD - In the Order of respondent judge, it is expressly stated that "[t]his court after careful evaluation of the evidence on record, believes and rules that probable cause exists; and therefore, a warrant of arrest should be issued." However, we are unable to see how respondent judge arrived at such ruling. We have painstakingly examined the records and we cannot find any support for his conclusion. On the contrary, we discern a number of reasons why we consider the evidence submitted to be insufficient for a finding of probable cause against petitioners. - The PACC relies heavily on the sworn statement of Security Guard Umbal who supposedly confessed his participation in the alleged kidnapping and murder of Van Twest. For one, there is serious doubt on Van Twest's reported death since the corpus delicti has not been established, nor have his remains been recovered. Umbal claims that Van Twest was completely burned into ashes with the use of gasoline and rubber tires from around ten o'clock in the evening to six o'clock the next morning. This is highly improbable, if not ridiculous. A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust. - Strangely, if not awkwardly, after Van Twest's reported abduction which culminated in his decimation by cremation, his counsel continued to represent him before judicial and quasi-judicial proceedings. Hence, even Asst. Solicitor General Estoesta believes that counsel of Van Twest doubted the latter's death. - Verily, respondent judge committed grave abuse of discretion in issuing the warrant for the arrest of petitioners it appearing that he did not personally examine the evidence nor did he call for the complainant and his witnesses in the face of their incredible accounts. Instead, he merely relied on the certification of the prosecutors that probable cause existed. For, otherwise, he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of petitioners. - In Soliven v. Makasiar, we said that the judge (a) shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard the fiscal's report and require the submission of


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supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause. - In People v. Inting, we emphasized the important features of the constitutional mandate: (a) The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes this determination; (b) The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making the determination of probable cause. The judge does not have to follow what the prosecutor presents to him. By itself, the prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcript of stenographic notes (if any), and all other supporting documents behind the prosecutor's certification which are material in assisting the judge in his determination of probable cause; and, (c) Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries be conducted in the course of one and the same proceeding, there should be no confusion about their objectives. The determination of probable cause for the warrant is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is a function of the prosecutor. - ALLADO DOCTRINE: If upon the filing of the information in court, the trial judge, after reviewing the information and the document attached thereto, finds that no probable cause exists, he must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists. Dispositive Petition granted

2. Conducted by MTC Judge

RULE 112:


(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.





(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.


(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)

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)

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


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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)

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)

RJCL Section 13. Taking Custody of a Child Without a Warrant. - The law enforcement officer or a private person taking into custody a child in conflict with the law without a warrant shall observe the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure and shall forthwith deliver the child to the nearest police station. The child shall be proceeded against in accordance with Section 7 of Rule 112 of the Rules of Criminal Procedure

B. In cases cognizable by MTC

1. Conducted by the prosecutor

RULE 112

Section 1. (P2)

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)


(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.





(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.


(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not

preliminary investigation and inquest

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