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.

48 thoughts on “Preliminary Investigation in Criminal Cases

  1. Decelyn


    I would just like to ask help for a legal advice regarding my situation. I have this friend who recruit me as an accountant one of the 5 star hotel in Canada. I have been complying to her the requirements she’s been asking me and answering questions which she said is from the Canadian immigration. The offer is quite good and I could not honestly think of impossibilities for I was blinded for this great opportunity. I have not given any processing fee or any sum of money. Until one day she told me that there are debtors that will pay to her and that she ask a favor from me if I could receive those payments. I have not said no, I received those payments, for I do not have any doubts to her. Until one day she here in the Philippines I was the one who get her in the airport and she use to live in us with my bestfriend. In each day everyday becomes clearer, she isn’t from Canada but is just from Middle East, her passports and documents were all fake. And there were lots of passports in our house, as we were inside the car I once heard her “that the passports are in the immigration” I look at her and think “are the passports she was talking are the same passports stocked in the house?” She was probably lying, the caller might be the victim for her recruitment. We were also able to access her facebook account because she mistakenly logged in to one of my gadgets and never logged out. We were able to know little by little til one day I was able to know that she was using my name, she told those people who are sending me money that I was the one processing there visas in Canada. I knew I am not involved and I was also one of the applicants. Someone had advised us, from a higher position of the CIDG that we should have filed complaint against her before anyone else. We persevere and on that third day of filing our complaint, she was arrested through entrapment operation. She was mad at me why I never confront her. But I know I just done right. She has a lot of cases to face, large scale illegal recruitment,falsification of documents, estafa, and an existing warrant for his thief case. The Inquest in DOJ is already done and we were just waiting for the resolution to come, she said she would like to have an arrangement with us, she is willing to pay everything but I am still in doubt of that. I am one of her complainant among the 7, but I still have a communication to her, a friendly communication. I do not know if it is right for me, but I can be prosecuted as one of her right hand in illegally recruiting people? because I still remained as her friend and her complainant as well?and my name was used in receiving those money? (those money were remitted to her the day she went here in the Philippines). Can I file her a case of using my name? What procedures or legal actions do I need to do to clear my name? I am just really worried right now. And I am not too knowledgeable of Law.

    Thank you very much for reading, your advice will be so much of help to me.

  2. Marjohry

    Hi, my sister (biological) was killed in a gunshot infront of my parents house in Batangas city last month. It seems like there was no witness who can tell who the gunmen are. The case is with the city police but they are only asking us (the family) if we have any info they said if not the case can’t move forward. There are cctvs in the area but they are private and the owner is refusing to share the footage.The police just came back and said sorry they won’t show it to us. Is that right? Can’t the police provide a warrant or something to force the owner to show the footages from their cctv? We never had this kind of experience and we honesly don’t know what we should do, can do or can’t do. Any advice would greatly be appreciated. Thank you in advance.

  3. pepito

    Good day sir/ma’am I had a question it is already my stage to produce witness to stand my case from my wife against 9262 ,now my question is can I be put to guilty even if my wife deny all my support ? Its only on this later yrs when I have no work and no inherited property for the reason still on court waiting for the decision about the shares from our deceased parent of both ,(claimant) and this tym I will be offering to give them support just according to my capacity but not below 1k per month,and give also voluntary testament and will to make donation of my little property from the conjugal rights it will be decided into three among them to my wife,my son and daughter equally. I already old no job at all ,living only for sideline and hire as private driver. Pls sir give me some enligthenment was this things workout to help my case I’m already 55 this yr all my children already professionals one is already working longtym ago and my daughter just graduated last yr my case 9262 was a big burden to me because its just on later yrs not giving my support last 2013 up to now the reason of no source of income on an off sideline ….pls sir /ma’am give me light about my case tnx so much God less.


    Is a warrant of arrest issued by a lower court (MTCC) warranted after accused was was arrested without a warrant allegedly committing a violation ‘in flagrante’ delicto for a drug-pot session?

    HI IM TRYING TO FIGURE OUT THE DUBIOUS WRONG HERE. Might you share your legal insight?

    The Premise:


    3. PNP LAUNCHES LAW ENFORCEMENT OPS TO SERVE WARRANT OF ARREST OF WANTED PERSON. BUT UPON KNOCKING ON THE DOOR WHERE NO ONE ANSWERED “PNP slightly opened the door silently” to peep and find unidentified persons allegedly engaged in a pot session. PNP wanted to go for the arrest but door couldn’t be opened as something is blocking from the inside. Thus a separate team out of the twelve (12) PNP officers that day moved to another door nearest the slightly opened one where the officer kept observing the drug pot session. Upon reaching the other door – they knocked (remember, they were supposed to execute an inflagrante delicto arrest for a crime of drug use). The door was opened by the wanted person – as they testified – but upon seeing the cops, he closed the door and ran back inside to hide in the occupants proses and climb up the ceiling to hide. The team chased the wanted person inside by forcibly pushing the door while shouting POLICE! And found two more persons inside one of which was the occupant and in plain view saw on top of the table a sachet of suspected shabu and paraphernalia. PNP secured and held the two persons (including the occupant); chased their wanted person up the ceiling. Seized the drug item on top of the table and called upon a Barangay official to witness the find. After the seized items were properly inventoried and signed by the local official in the presence of the suspects; the arresting officer Apprised the three of their rights under the law for their arrest. They were brought to the station for proper charges:

    Notice the errors in the testimony:
    A) In the service of the arrest warrant, “is it part of police regularity that after knocking on the door where no one answers – then they can freely “slightly open the door silently?”

    B) Claiming to see a drug pot session while peeping inside, they moved to arrest immediately but was hampered by a blocked door – that caused another team to approach another door to “knock”? Doesn’t an in flagrante arrest allow PNP to break in after they have announced their authority and made their purpose known and that thy were denied by the occupant? With twelve police officers, isn’t their combined strength more than enough to break down any door – slightly opens or closed?

    C) During the hot pursuit of chasing the wanted person inside the occupants room and without permission from the owner – isn’t that trespassing? And the slightly opening of the door silently intruding? Which does not warrant to plain view of the drug pot session or the drugs on top of the table allegedly?

    D) Isn’t the manner of arrest UNLAWFUL, when they first secured and held the owner, BEFORE seizing the drugs on the table and making inventory of it in the presence of a Barangay Kagawad (while still securing and holding the occupant); and only then did the arresting officer apprise him of HIS MIRANDA DOCTRINE effecting his arrest? The sequence here being trespassing (unlawfully); detaining the suspects (arbitrarily); incriminating evidences through a search and seizure (unreasonably); and only then were they arrested??? Remember the drugs were never taken from their bodies (or persons)

    4. Now the suspects were detained in jail for 48 hours before an inquest proceeding was made without the benefit of a counsel and had them committed back to detention after the proceeding for a commitment order from the judge and waited until posting bail for their temporary release.

    Notice the error:

    A) There is arbitrary detention once more and delay in delivery when the inquest took 48 hours to take place instead of the mandated 18 hour period wherein suspects must be delivered to court custody on account of a WARRANTLESS ARREST.

    B) The inquest made without a counsel for the accused is in violation of RA 7438 and inquest is NULL AN VOID without legal defense. But the case was still procured and filed by the CITY PROSECUTOR (without submitting it to the PROVINCIAL PROSECUTOR for approval. And worse, she is prosecuting the CASE OF RA 9165 when a superior prosecutor is more qualified to prosecute a violation of a SPECIAL LAW that concerns the nations problem on the war on drugs and not just that city.

    5. Apart from that. PD 1829 or obstruction of justice was filed against the owner/occupant at the MTCC wherein the judge conducted her own PI and “in order not to frustrate the ends of justice” issued a warrant of arrest to the occupant. The penalty for PD 1829 is 4 to 6 years imprisonment or Php 1,000 to 6,000 fine or BOTH. MTCC can only sentence 6 years below and CANNOT FINE MORE THAN Php 4,000.00. THUS, granting for example that the occupant is found guilty of “obstruction of justice by harbouring or concealing a criminal” – WILL THE MTCC COURT REACH JUSTICE IF IT COULD ONLY FINE THE ACCUSED NOT MORE THAN FOUR THOUSAND PESOS ONLY WHEN THE MAXIMUM FINE IS SIX THOUSAND PESOS? Isn’t the MTCC likewise out of jurisdiction in this special law on PD 1829? During the PI of the court judge, she likewise failed to suit her resolution to the Provincial Prosecutor for approval or dismissal. AND WHAT OF THE WARRANT OF ARREST ISSUED O THE OCCUPANT “in order not to frustrate the ends of justice” – KNOWING FULLY WELL THAT THE SUSPECTS WERE ARRESTED WITHOUT A WARRANT, SHOULDN’T SUBPOENA BE ENOUGH TO SUMMON THE ACCUSED TO ANSWER FOR THIS CHARGE, especially when accused is already answering to the drug charges at the regional trial court? ISNT THAT OVERKILL?


    7. CURRENTLY, all accused had let go of their lawyers in the case to fight a system wrought with CORRUPTION OF NOBLE CAUSES FROM POLICE, PROSECUTOR AND JUDGE. Invoking Rule 138 section 34 of litigation in person before arraignment caused the suspects to LEARN THE LAW ON THEIR OWN AND FILE MOTION UPON MOTION FOR ANSWERS FROM THE COURT UNTIL EITHER THE JUDGE IGNORES THEM OR FORCES THEM. EITHER WAY OPPRESSION WITHOUT ANY COUNSEL TO THE ACCUSED – is detrimental to a set of lawmen, law practitioners, and law enforces, for persecuting hapless victims of the law fighting on their own and will never submit to trial or arraignment – knowing very well that submitting to such ERASES OR CURES THE HORRENDOUS PROCEDURAL OPPRESSIONS MADE BY THE JUSTICE SYSTEM.

  5. halsey

    Want to ask a question?maaari po ba akong magsampa ng estafa sa kumare ko na kahati ko po sa pgbebenta ng bahay at lupa sa dati kong tinitirhan sa dahilang hindi nya po ako binigyan ng komisyon sa pinagbentahan ng bahay at lupa kahit na wala kmjng kasulatan at berbal lng po ang aming naging usapan.ako po kasi ang nagrekomenda ng bahay at lupa sa kanya,ang sabj nya po kasi sa akin bibigyan nya ako kpag nabili na po yjng bahay at lupa na tinitirhan ko o dati?thanks po.

  6. erwin

    Good day attorney! it is with very much distress, humiliation and frustration when i received a subpoena for a preliminary hearing for RA7610 with fictitious documents attached… The subpoena has no signature of the assistant prosecutor assigned, DSWD referral to the hospital without signature, No DSWD investigation/hearing, No Baranggay investigation/hearing, No Police investigation/hearing, No medical certificate, No consent/authority from the parents of the child involve and No witnesses…Just a plain affidavit. Is this legal and valid for preliminary hearing? Is there any negligence on the part of prosecutor. i did wrote a letter to the prosecutor about my observation…to date no response. Please help.

  7. Chris

    Hi po, I really need an advice for my mother. She is 70 years old. She applied for NBI clearance and got hit. We learned from the NBI that someone filed a estafa case against her in 2005. She didn’t owe large amount of money to any body. All of us are in shocked especially her. The NBI personnel told her to go to prosecutor office and get it check to know who filed the case and if it is still active since it was filed 10-11 years ago. No subpoena was issued maybe because we moved to other place. My sister is going to province to check her case. My question is: since the case was filed 10 years ago, it is possible to be dismissed? What are the steps we need to do? My mother can’t travel because she is old and have health problem. She is so nervous and scared about this case. She barely sleep and eat. Please help me. Thank you so much. Your response is greatly appreciated.

  8. Bryan

    Dear Attorney,

    My friend has a problem which need some urgent clarification. His mom was caught in her house with drugs. These drugs did not belong to her, it belonged to her relative who was staying in her house for a few days. When the police came, they caught her and her husband as well, together with the relative who actually possessed the drugs. They were brought to the police station and was remanded. My friend’s father was released after a month but his mom is still being prisoned. She was not given bail till date. For your kind information, she has been in prison since October last year. Her Lawyer mentioned that she has 03 hearings, if the police who have arrested her does not show for the hearing, she would be released. 19th April 2016 was 03rd hearing but unfortunately the Judge posptponed it till 2018. I am not sure what had happen or gone wrong. She was not even found guilty, its just a hearing to ditermine if she needed to be on trial. The hearring it self has taken so long. How can my friend help his mom ? He has appointed a lawyer. Before this, she was supposed to be out on bail till the 1st hearing, unfortunatley it did not happen. She is 69 and she has no criminal record and has been falsely accused just because when the police came to her home, she was apparently having conversation with the relative who actually possesed the drugs. 2018 seems to be too long for another hearing. What can my friend do ? Please advise as he and his family has been misserable. Can some one help?

  9. Patrick

    Good day, I would like to query about a Estafa case that was lodge against me and that was settled as an out of court settlement with no criminal charges were pressed.

    I applied for my NBI certificate and received it but only after producing to the NBI the documents that the case is closed. My query is If the case was settled and close with no criminal charges pressed and cleared by the Courts why is this case still showing on the NBI system. Does this case remain on the system for life or is their a way this can be cleared off the system.
    I can produce and forward any documents that you require
    Any advice or information that you can provide to me would be gratefully appreciated
    Best regards
    Marie Antoine Georges Patrick Boulle

    If you cannot help me with is query can you provide me with someone who can help

  10. Ginalyn

    Good afternoon attorney. Ang isang kapatid ko po ay binaril ng walang kalaban laban.
    Nakita ng isa ko pang kapatid ang nangyari, dahil dun sinubukan nyang agawin ang baril sa taong pumatay sa kapatid ko. Nang nakuha na ang baril at ng makita nyang wala ng buhay ang isa naming kapatid ay ginantihan nya ang bumaril hanggang sa ito’y mamatay.
    Dahil dito nakulong ang isa kung kapatid. Wala pong mag stand na witness para sa kapatid ko.
    Tanong ko lang po na okay bha mag witness ang hipag at tatay ng kapatid ko?
    Ano po ang mas mabuting gawin..mag pagawa ng counter affidavit or hindi na?
    Sana po matulungan nyo ako sa problema ko ngayon..Salamat po!

  11. Josh

    Atty i need your legal advised.. I was charge of murder because prosecutor found probable cause.. But complainant file affidavit of disistance and during trial his lawyer upon questioninh by judge? She said no objection and lack of interest tonpursue the case.. Problem is the jidge until now wala pa pong nilalabas na resolution para ma recalled po ang warrant.. Almost 1 month na po ang ljmilipas.. what are the process? Sa paglabas ng resolution ng court?

  12. Mark Jade

    In preliminary investigation for the crime of estafa, the investigating prosecutor issued a sub poena on the offender to produce his bank account. Is the actuation of the investigating prosecutor is right?

  13. agakhan

    what is the effect of a finding of the NBI that a complainant in a criminal case is the one to be prosecuted for murder considering the fact that all the allegations submitted to the nbi including the death certificate and the witnesses are falsified.

  14. Omar

    My son is jail (police detention facility) for almost a month now. The police arrested him for murder because he ran over an indidual he did not know while DUI. He is still waiting for the fiscal’s resolution on the case. I’m wondering why is it taking so long. Its been almost a month. In rules for preliminary investigation, does it allow such length? The atty said its because he waived his rights for PI. But as ive said its almost a month now. I would like to know also if we can post bail even if the fiscal has not made a desicion on the case. Also, we have submitted a CCTV footage, showing that the incident is not intentional. Which in my opinion rules-out murder. So, my thinking is if its not murder, then its bailable. Im asking for your opinion on this case sir. Tnank you for your consideration.

  15. Nestor G.

    Hi attorney, My problem is i did’nt know that i have a subpoena, last nov 25 of this year my neighbor received a letter and he didnt know its a subpoena coming from the city prosecutor, our hearing was supposed to be on oct 21, 26 and nov 4, i had no idea that i have a heating on that say, so i went to philpost to clarify what happened and they gave me a certification indicate that the letter was only delivered last nov 26 ang our neighbor received it, my problem atty when i went to the prosecutor office there is already a resolution on my cased, what should i do? my friend told me tha i need to apply a motion to re open the case.. please help me..


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