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. jane

    hello atty.

    my boyfriend now was took by his ex girlfriend was threat by the father of the ex-girlfriend. The family of the ex girlfriend was a well known family and we don’t have any power to beat them. The ex girlfriend said that she was pregnant and my boyfriend said that she was not pregnant because they broke up about 3months already. I”m trying to help my boyfriend because he was on the girl’s residence and could not go out immediately because he has guards on his side. Me and my boyfriend had often communication through the help of his brother..
    what should we do by this atty.

    thanks I really need an advice

  2. rose

    Hi Goodevening attorney,

    I would like to ask you some very important question, your reply will be highly appreciated…


    I was a respondent and the complainant took them 6 months to reply another counter affidavit to the prosecutor office? is the case should be no good because the days that they had given was over lapse already??

    what is the exact limity to file a counter affidavit? both respondent and complainant?

    thanks please reply.
    need help!

  3. Erah

    Gud am. Just want to seek advise.

    We have a neighbor who borrowed money from us thru text messages last year of 2013 and did not bother to pay us. he always promised a date to pay but failed to do so, one time my husband ask him to pay but he ran to his house and get a knife saying “tang-ina mo di kita babayaran gurang ka na”.

    sir we already filed complaint to him at the brgy and we are now waiting for our certification to file case. my question sir is:
    1. is text message of borrowing and lending money enough proof to prove that he borrowed money from us?
    2. what other chargers can we file to him in relation to this knife incident? is it possible to file grave threat sir?

    many thx

  4. Anonymous

    Hi Atty,

    Would like to seek your advise. I had gone through the preliminary investigation through a prosecutor already and had suggested that my RA9262 may be legible for the court proceedings as DNA testing may be involved for Child Support. I am legally married up-to-date and dealing with influential people backing up my husband (basketball player). I have been following up on the warrant of arrest that was just a signature away, and all of a sudden, the case was dismissed.

    How can I re-open the supposed case?
    Do I have any other options to deal with this?
    The third party previously contacted us to settle, and all of a sudden, they said that “new development” came up and we need not meet anymore; only to find out that the case dismissed.

    The tactic is obvious but again, can’t directly accuse them of it.
    I would only like to achieve justice and give what is rightfully my daughter’s.

    Kindly assist please. Will be waiting for your legal advice.

  5. withdraw

    i would like to withdraw or req. to drop the case i filed almost two years ago for I was been a victim of rubbery and the provincial court is ordering me to go to the trial to witness but i just want to drop or withdraw or end this case for i just want to move on with my life. going there and seeing those faces is very traumatic for me. what should I do? how can I req. for the case to be withdraw? I no longer want to be associated with this case and just forget that incident in my life.Thanks. I really need your advice.

  6. romulo

    nag file po kami ng kaso sa piskal opis namin, pero pinapnta po kami sa pulis dahil ang affidavit po namin ay gagawin daw po na question and answer. tama po ba ang sinabi ng piskal opis? kompleto na po ang lahat filing namang, di na po ba tinatanggap ang affidavit na plain kasi kailangan na dumaan lahat sa pulis?

    1. AttyFred Post author

      Romulo, complaints before the public prosecutor’s office could come directly from the complainants (through a complete Complaint-Affidavit) or filed through the police.

  7. zussete

    Good Day,

    May itatanong lang po sana ako regarding sa case nang boyfriend ko, May incident kasi nung 2001 nka patay yung barkada nya pro hindi cya sumali sa gulo, pro this year 2015 nag labas nang warrant of arrest, its stated na sangkot daw cya sa kaso tsaka gagawin daw sana cyang testigo para makapag turo kung sino pumatay. Pero ang naka lagay sa warrant hindi nya totoong pangalan. Paano po ba niya i defend sarili niya? Paano bo mapa walang bisa ang warrant of arrest? I really need your help po talaga.

  8. rene

    good day i want to ask i have a friend just helping her she was rape by his step father and that incident was made 10 yrs ago and she still minor that time and she got pregnant and she had a child from the said step father. Can we still file a case and what evidence can we produce since the incident was already been for 10 yrs thank you very…

  9. Ysrael

    I filed a case of Reckless Imprudence Resulting in Damage to Property before the Manila Prosecutor’s Office last April 20, 2015. What will happen if I leave the country for say 6 months anytime even before a Preliminary Investigation is done?

  10. Therese

    Dear Atty,

    My husband and I filed a complaint for estafa with supporting documents. However, when the resolution came we found out that our case was dismissed. We felt that it was dimissed unfairly as in the resolution it only states the side of the respondent and most of the statements were baseless.
    Atty, what should we do with our complaint? Where should we go to have our complaint heard?

    Thankinh you in anticipation.


  11. Doreen Daisy

    I need some of your legal advise.
    I filed a complaint against my boss who is a foriegner, RA9262. Sexual abuse which caused my pregnancy..
    I filed the case at Pasay Prosecutor’s Office.. The preliminary investigation was completed May 20,2015..
    I’d like to ask if how ling does it usually take so i could be informed for my case resolution.. And i want to file a deportation against the respondent.
    Thank you..

  12. alison

    Please i need your help! If a offender recieve an resolutulion letter . It is a “”warrant”?! or it is posible to arrest him what should we do

  13. Jenny

    Hello.. ask ko lang po sana kung anu dapat gawin sa case na toh.. 2010 po nangyari yung away ng 2 kong classmate..3rd high school. monica at jane,, sinapak ni jane si monica nagka blackeye ,,. Nagsampa ng kaso si monica.. hindi pinansin ni jane,, hindi sya nagpasa ng counter affidavit tapos ngayon 2015 nagpunta sya ng regional trial court may issue na sya ng warrant of arrest..pero hindi naman sya hinuli..binigyan sya ng papel court clearance… pero emergency umalis ng bansa si jane para mag work kaya hindi na ulit na ayos yung kaso,,ngayon po naghahabol si monica pano daw naka labas ng bansa ,, hindi naman naging requirement ni jane yunf nbi nung umalis sya direct hire po sya ,, anu po pede gawin… sana po makasagot nyo po toh.. salamat po.

  14. florentinofiel

    Administrative case was filed against me at the office of the ombudsman in 2012. The incident happened in 2011 of May. In september 2012, i retired from the service (Optional Retirement). I was only given the chance once to file a counter affidavit and i filed a motion for unjust vexation but unfortunately was denied. The ombudsman issued the resolution over my case in 2014.

    In January 2015 the Ombudsman resolution was forwarded to RTC and raffled to RTC Br 36 for violation of sec 3 (B) of RA 3019. In the next month, another complaint forwarded to MTCC using the same Ombudsman resolution with 2 counts(Crim Case No 52360-1 and 52359-1 all for violation of Sec. 7 of RA 6713.

    Last week Sept. 10, 2015, when I obtained the documents (complaint letter, information including the Ombudsman resolution and other annexes) I found the following; no verified non-shopping forum attached in the complaints filed at RTC and MTCC; 2nd, the 2 counts filed at the MTCC are the same cause of action and lastly, the Ombudsman document showed that the verified forum shopping attached in the complaint was 4 months late from the complaint letter filed at the Office Of ombudsman.

    What shall i do now? is there a possibility that the cases filed at the MTCC be summary dismissed for forum shopping? is it possible the that my case filed in 2 courts with no verified forum shopping be also dismissed? Please i need your legal opinion


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