Preliminary Investigation in Criminal Cases

At the outset, let’s remove any possibility of misunderstanding that may be caused by the title of this post. The reference to a “preliminary investigation in criminal cases” does not imply that there’s a preliminary investigation in civil cases – there’s none. Preliminary investigation is a part of the rules of criminal procedure. Simply stated, it’s available ONLY in criminal cases.

What is Preliminary Investigation?

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

What is the Nature and Purpose of preliminary investigation?

The determination of probable cause during a preliminary investigation is an executive function, the correctness of the exercise of which is a matter that the trial court itself does not and may not be compelled to pass upon.

In a preliminary investigation, the investigating prosecutor makes a determination if there’s a probable cause, which is the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. It has been explained as a reasonable presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean “actual and positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged, as there is a trial for the reception of evidence of the prosecution in support of the charge.

The purpose of a preliminary investigation is 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, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be in flagrant violation of a basic right which the courts are created to uphold. (Salonga vs. Cruz Paño)

When is preliminary investigation required?

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.

A preliminary investigation is not required in cases of “warrantless arrests.” When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. However, after the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation.

Who are the 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.

What are the basic steps in preliminary investigation?

The basic steps (further discussed in the subsequent paragraphs) in preliminary investigation are:

1. Filing of the Complaint-Affidavit.
2. Issuance of subpoena by the investigating prosecutor to the respondent.
3. Filing of Counter-Affidavit by the respondent.
4. If allowed by the prosecutor, filing of Reply-Affidavit (by the complainant) and Rejoinder-Affidavit (by the respondent).
5. Resolution.

What are the requirements in filing the Complaint-Affidavit?

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 whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

The complaint is also generally required to pay filing fees.

What actions are taken by the investigating prosecutor after the complaint is raffled to him/her?

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.

I haven’t encountered any case where the investigating prosecutor dismissed the case prior to the issuance of the subpoena. Moreover, in practice, the complaint and the annexes are not usually attached to the subpoena, but are provided to the respondent during the initial stage.

How is the Counter-Affidavit submitted by the respondent?

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 before the investigating prosecutor (which means that the respondent must generally be present during the submission of the counter-affidavit), with copies furnished to the complainant. The respondent is not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

Can the investigating prosecutor resolve the complaint if the respondent does not appear?

Yes. If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits, the investigating office shall resolve the complaint based on the evidence presented by the complainant. 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.

This is the reason why, even in cases where a preliminary investigation is required, it’s entrely possible that a warrant of arrest may be isued without the respondent/accused being informed about or having participated in a preliminary investigation. So, don’t disregard a subpoena in a preliminary investigation.

How is the resolution prepared?

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.

Can the Information be filed without the written authority of the proper authorities?

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 another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

An Information filed in court may be quashed, among other reasons, if it does not contain the approval or authority of the aforementioned superiors.

What is the procedure if the preliminary investigation is conducted by a judge?

The procedure is basically the same as described above. 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.

50 thoughts on “Preliminary Investigation in Criminal Cases

  1. denzmary

    Hi! I need help for legal advised. I am now to the point to bring my own brother to the court. On late 2005 our brother George(not his real name) he pointed his gun to our 2 brothers and 1 sister in the farm. Threatened them to kill. George become cruel when his dishonesty and anomaly in farm was under control. On early 2006 he steal the carabao in the farm that until now it was never return. On the middle of 2006 he burned the farm houses in the midnight that he may think he can not be accused due to the fact that no body sees him. During that incident we received a death threat letter kind anonymous, sounds like from the rebels and there’s a cellphone number to be contact with. When our mother was advised by the police to call the cellphone number indicated from the death threat letter it turns out it was the voiced of our brother “george” that threatened my parents as will as our family members badly. Now, this year 2008 he ambush our other brother that supervising the workers in the farm that resulted into a physical injury. I am now so exhausted of all his demonic act against our family. He produce his own documents to own my farmland. He barricaded my farm area that my workers can not enter. All his criminal activities has been reported to the nearest Police station. Non stop death threat to us. I am so overwhelm he was able to feed some cronies that his income is not enough to support his own family since he has a half dozen of children. He steal all the copras in my farm. I know for sure that he will not prosper of his false documents but please give me an advised. We are on the process to file a 5 criminal cases to george if he found guilty including illegal position of 38 and 45 guns, stealing carabao, death threatening to our family members, mauling/physical injury to my brother, burning the farm houses, what is the penalty and punishment to be given to him? please help me….

  2. Atty. Fred Post author

    denzmary, the common penalty in criminal cases is imprisonment, although in certain cases like libel or bouncing checks, courts are given the discretion to impose the penalty of imprisonment only, fine only, or both. The penalty depends on the case filed in court, the presence of qualifying, mitigating or aggravating circumstances and a host of other factors.

  3. divine

    Greetings. Only for clarity, Municipal Trial Court judges are no longer authorized to conduct preliminary investigation per A.M. No. 05-8-26 of the Supreme Court. Thank you. More power.

  4. move

    Hi Attorney. I need your help. When I left the Philippines, I was advised to resign by my employer for funds misappropriations issue in July 2008. I also signified my intention to settle whatever liability arising from what I have done. I am now out of the country seeking employment opportunities. I just learned that my previous employer in the Philippines is filing a criminal case against me for misappropriations. I had talked to our HR Manager and was told that they are only taking orders from the Corporate lawyers who already took charge of my case. I was informed that they already went to the office of the City Prosecutor for the filing of the case. The case that they are filing is either theft or estafa. I am already out of the country. Can the Philippine Court ordered me back to the Philippines to answer the charges? I am already about to be employed where I am now and may not be able to take leaves to answer/face the charges. Please advise me what to do. I am lost here.

  5. crushed

    if found guilty of bigamy and i’m working abroad can they extradite me? which countries can our government extradite if person is guilty of bigamy?

  6. noel_benolirao

    sir…i need to file a request for PI…is there a specific format which I can follow? this like a letter format address to the Prosecutor or the RTC Branch?does it have to be notarized?your help highly appreciated..i only have less than 5 days to file for PI as of this writing/post….

  7. anna_cenidoza

    Dear Sir,

    Good day!

    I would like to ask, what specific case, criminal or civil case, may file to a Chief Operating Officer (COO) if he uses the company’s funds for his personal interests?

    Thank you very much!

  8. zingodabingo

    I like to ask a question about violence against women children act. few years ago me and my wife separated, was her choice. I offered 2k a month with the money I can afford. next day she accused me of violence against women children act, she wants more. so i added another 1k, after i’m having a hard time. That lasted for a year now she’s demanding another 3k for private school also I got another job in a different area, were the rent is little lower. But of course also the income. I finally put my foot down and told her i will pay what i can afford. which is the 2k and I didn’t have a job for 2 months. So now she’s filing a case. So am I considered a criminal, even after giving her support of what I can afford?

  9. DennisA

    Good day.

    I’d like to know if I could still file a case against my brother’s murderer(s) now that I am no longer a Filipino? How do I file such case? Do I need to go to he Philippines speak with our embassy there or can I do it from where live and let the Philippine embassy do the coordination? I am fine both ways I just want justice to be served for my brother who was brutally murdered. I still have siblings in Philippines but they are far too scared because of the known mentality in that province. Likewise, isn’t it that state prosecutor should sprearhead the case and be on our side as we are the agrieved party? Please let me know what is the right procedure.

    Likewise, how can I ask the good court to move the trial from one place to another? If ever I stay in the Philippines and be allowed to file a complaint can the trial be done in some other provinces or in metropolitan area where I feel more confident.

    Your input is highly regarded.


  10. kitty

    Can a fiscal mitigate a frustrated murder into physical injuries?
    can he as well remove some respondents from the list? There are 6 respondents on a frustrated murder case, there was a warrant of arrest fro them. One of them has been caught and brought to BJMP. The other 5 are hiding.The fiscal is offering a help that he may mitigate the case into just slight physical injuries and will make a probation to remove the names of the other 5 from the list and also a probation to free the one detained and will just allow to go but requires him to attend hearings later on. Unfortunately I am not in the Ph so I just get this info after these people talk with the concerned people in position. Thanks. I really need your advice.

  11. juris

    My mom was being arrested for illegal drugs found with her. She was a balot vendor, and it was a setup. How can I file conplaint, she was transferred in Provincial Jail. She is innocent and we are poor. What are the first steps that we are going to do?

  12. Dean

    Good day attorney,i need your advice and help.I was being accuse for a case which i never make.what happened is like this i have a gay friend po he is 17 years old and he keeps on visiting in my town,the incident happened last May of this year kasi po habang naglalaro po kami with some of the kids ages 11-12 palagi po silang sumasama sa kaibigan kung tumatago cause we were playing Hide and Seek that time attorney,to make the story short nung panahon na ako na po yung taya naka pag tago po sila sa malayong area ng pinaglalaroan namin then nakita ko na po sila kaso lang de sila lumabas pag dating ko doon i saw them that they were having fun and teasing each other na makikipag sex but then i dont want ed to have sex with them so ang nangyari po pag katapos ng maraming usapan yung naka sex nila is yung friend ko yung naka sex niya po is yung dalawang bata habang yung isa is naging look out tas yung dalawa po ay sumama sakin na umalis.yung nangyari po ngayon is nalaman daw ng mga magulang yung nangyari dahil daw po pinagkakalat nila tas ako po yung tinotoro ng mga magulang na ako daw yung gumawa na kahit aminado po yung mga bata na hindi ako ang gumawa ng pakikipag oral sex sa kanila.nag karoon po kami ng hearing sa Police station at yung lamang ang natanggap ko nah they are really really to file a case against me daw po so yung case na finile nila is “RAPE”.

    Ngayon Po attorney ano po yung mga dapat kung gawin to fight for this one?,kasi po pinagkakalat na po nila dito samin na ganyan nga daw po yung mga pinaggagawa ko may chance pa po bang maging ok po to attorney?.I really need for your advice for this one attorney.THANKS IN ADVANCE

  13. kenji

    Good day.

    Shall an information or complaint be filed immediately with the proper court as soon as the Provincial Prosecutor approves the finding of probable cause by the Investigating Prosecutor, considering that the respondent still has the remedy to seek review of such finding with the DOJ?

    An affirmative answer to this question opens door to abuses of some sadistic prosecutors (persecutors) who would file an information immediately with the proper court so that a warrant of arrest could be issued and the respondent(accused) could be committed to jail at least in the meantime pending review by DOJ.

    Now that our penal laws are being codified, I hope too that this absurd quasi-judicial function of Persecutors be removed at once!

    Thanks for illuminating us on this matter.


  14. happy

    What if a person is lawfully arrested without a warrant, and an information is already filed in court. Later on, the accused requests for a preliminary investigation. Can the court where the information is filed conduct such preliminary investigation? Or is it mandated to remand the case to the prosecutor?

    1. Isabelina

      Preliminary Investigation (PI) is only mandatory for cases where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day, without regard to the fine. If the information is filed in court without said PI, the PI (on the motion of the respondent/party & permission of the court) can be conducted by the court where the case is filed (if the court is a Municipal Trial Courts or Municipal Circuit Trial Courts)

      (please correct me if I am wrong)

  15. dada

    Good day!I want to ask a question.. what happen to the case if the complainant and the accused both failed to attend the hearing? And the complainant give a wrong address thats why the accused failed to attend the hearing.. he didnt even know that he has a case file on him… thanks in advance for you answer…


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