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.

63 thoughts on “Preliminary Investigation in Criminal Cases

  1. lala

    Good day! May I ask gano katagal ang hihintayin kapag naibalik s fiscal/ prosecutor ang kaso??? We’ve been waiting for more than a month at Wala pa din.

  2. Mei

    Hi good pm po atty.
    may nag file po sakin libel online against me po then i am schuduled to file my counter affidavit on march 13 and the preliminary investigation will be conducted on the same date. Ask ko lang po if pwede po ba ako mag travel outside the country only for 3 days i will be back on march 9.. nasa immigration na po ba un? Mahohold po ba ako sa immigration? Thank u po

  3. Anna

    Hi po attorney,

    Meron same case na nabasa ko sa itaas na abuse of powers ng prosecutors. Yung kaibigan ko po accidentally may napatay na lasing kc binugbog sila ng lasing dahil napagtripan lng, ipinagtanggol ang kuya nya na walang kalaban laban , kumuha po ng tubo at ipinukpok sa ulo at nagkataong namatay ang biktima. Based sa preliminary investigation, homicide po pero ginawang murder ng prosecutor. Kadikit daw po kc ng kalaban ung prosecutor at marami pang kilalang malalaking tao na pwedeng backer. ano pong magandang gawin bago ito maifile as murder.

  4. francel

    Good day po attorney

    lang araw na po ako hindi makatulog sana po ay matulungan ninyo mo ako sa aking problema.

    Nagkaroon po ng entrapment operation ang nbi sa isang private resort sa caloocan opo yung nabalita po sa tv ang totoo po niyan inaya kami nung glady mag swimming libre lahat kaya po ang ginawa namin sumama po kami dun sa swimming na yun pag dating po doon nandun po yung nanlibre samin nung unang swimming namin at marami pong kasamang mga lalaking may edad na may nagsalita po doon ang sabi maganda pupuntahan nila sa baguio dun sila gagalawin nung narinig ko po yun agad ko po kinausap yung isang kasama namin na nag aya samin lumabas po kami at sinabi ko sa kanya na kala ko ba swimming lang pag ganyan uuwi na ako ayoko mapag kamalang bugaw pasunurin mo na din mga babae kasi ang alam nila swimming lang sabi nung kausap ko siya daw po ang bahala kaya ang ginawa ko kinuha ko lang yung cp sa loob at kunwari may susunduin lang ako at ako po ay umuwi na nagchat sakin yung kausap ko ang sabi hinahanap daw ako nung nanlilibre samin ang sabi ko ang sagot ko po sa kanya bakit gagalawin at dadalhin pa sa baguio wala naman sa usapan yun ha sabi mo swimming lang
    Ang sabi ko pa sa kanya ayoko ng ganyan baka isipin pa nila bugaw ak
    Ilang bese ko chinat yung kausap ko sabi ko hindi nila alam na gagalawin sila sabihan mo sila tapos pauwiin muna walabg umuwi sa kanila ako lang mga mag isa ilang minuto pa lumipas may nagpunta sa lugar namin at sinabing na set up daw yung mga nagswiiming ngayon po nagtatago ako kasikasama ako sa kaso ang po ba pede kong gawin

    ps. kasama po ako sa kaso at at large po ako anytime po ba pwede nila ako hulihin without warrant of arrest

    1. dreamer

      Hinde ka pwede hulihin kung walang warrant of arrest sa kasong entrapment na iyan kasi wala ka doon nung inaresto sila. Papaylan ka pa ng complaint sa prosecutor’s office at kung may basehan ang complaint, papaylan ka ng kaso sa korte. Saka ang korte mag-iisue ng warrant of arrest. Kumuha ka ng abogado para masagot ang complaint sayo.

  5. Kero


    Last July 1, 2017 I was involved in an accident where a speeding motorcycle hit my vehicle (also a motorcycle) from behind which resulted to multiple bruises and a broken collar bone. We have filed a case and it has been already approved by the prosecutor (no subpoenas from prosecutor’s office. They called it as direct filing.) And now the case is already in court and waiting for the case trial.

    My questions are:
    1. Do we need to seek a lawyer for the case or will the prosecutor stand as our lawyer?
    2. The case filed was approved by the prosecutor, does that mean that the prosecutor finds the defendant probably guilty?
    3. The trail court personnel told me that the trial may take place around October 2017 due to high volume of cases. Is this acceptable or is there a turn around time for a case to be scheduled? I mean is this still in the standard procedure that it would take more than 2 months for the trial to be made?
    4. Lastly, what would be the sanctions if the defendant would be found guilty of “reckless imprudence resulting to Damage of property and Physical damages?

    Thank you!

  6. cring

    My husband accused for a triple frustrated murder. He is detained for almost one month now. There evidence is just a hearsay he is negative in gun powder how many days the case will close

  7. Olga

    Hi! Injust really have to ask this, I actually received a subpoena on October 5. It is stated there that I should reply (counter-affidavit) within 10 days upon receipt. Is it 10 working days? Or just 10 days from the date I received it? Please reply!

  8. Moses

    Hello, atty, my question is the regional fiscal found the accused with probable cause from overspeeding resulting in homicide, is the defendant should be in jail while waiting for trail , not unless he request for bail out? Because currently the defendant is free and migth be driving again and commit the same as he doesnt care the speed limits? Can i request to the judge to put him behind bars until the trial got done? Please educate on this matter atty? Thank you so much.

  9. Gina

    Hi can I ask legal advice ? If someone killed his own brother because of an argument and after 24 hours his family didn’t filed a complaint against him what would be the result? Is there any possibility that the police will set him free? Thank you so much
    Hope you answer my questions.

  10. Enim

    Hello Attorney good day! My business is a travel agency. One of my clients file a case of estafa if I could not return his money for a couple of days only because I did not gave them the exact or flight bookings they booked supposed to be amounting less than 40,000Php. Can he continues to file a case if I fail to return immediately the cash amount? I asked him to give me more time or days to settle but he don’t want to listen my explanation. If he could continue to file a estafa case, what will be the steps? Is warrant of arrest will serve to me immediately? If that is so, example, I’m inside of the house the police or server of warrant of arrest can open the house without any permission to enter just only to look for me?

    One more, previous days or months let’s more than five clients I encountered problem similar like this amounting 5kphp or less than 20kphp. Still, I negotiate to them and refund them as soon as possible. I did not or I don’t have a plan to escape but rather I’m willing to face and return their money little by little. But sometimes, they accused me being like that and some says file a case too or let’s say estafa. Is it acceptable even if I choose to ask them for more period of time to comply?

    Hoping you could advice me immediately. Thank you

  11. Karla

    Hi! My cousin Police informed me that there is a warrant of arrest for me. First I don’t receive any demand, subpoena or letter from the court. I’m really surprised. An RTC Judge issued it. How come a warrant reach my place and subpoena didn’t? Pls help me what to do. Thank you

  12. Melody

    Ang dami pong pending cases na halos di gumagalaw sa DOJ. Isa po ako sa biktima lamang at nadawit sa NBI case against sa company ko dati. Resigned na ako ng 2 years nung kinasuhan sila ng NBI ng cybercrime, kaya nagtataka ako kung baket nasama pa ang old & resigned officers sa case. Ngayon hindi ako makakuha ng NBI, kailangan ko na magtrabaho para maitaguyod ang pamilya ko. Naniniwala pa rin ako na mabibigyan ako ng hustisya, sana man lang mabilis ang usad ng case para mapawalang sala na ang biktima na gaya ko, at maparusahan ang mga tunay na nagkasala. Mabilis lang ang Prelim Investigation namin with Fiscal (Salamat po!) Nasa Prosecutor General na for review ang case, hopefully matapos na ito. Praying… Lord bless nyo po may hawak sa case ko para ma-review na ang resolution.


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