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PRELIMINARY INVESTIGATION
Defined as 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.
PURPOSE OF PRELIMINARY INVESTIGATION:
a) To secure the innocent against hasty, malicious and oppressive prosecutions; b) To protect him from open, public accusation of a crime and from the trouble, expense and anxiety of a public trial; and c) Protect the State from useless and expensive prosecutions.
NATURE:
Preliminary investigation is not a part of the due process clause of the Constitution but is purely a statutory right and may be denied by law. But if the law provides for a preliminary investigation and such right is claimed by the accused, a denial thereof is a denial of due process.
Chapter 2
Preliminary investigation /
inquest proceedings
At the end of this chapter the student should be able to: Define Preliminary Investigation Enumerate the Purpose of Preliminary Investigation Understand the Nature and Requirements of PI
The right to preliminary investigation is a personal right, thus, the same may be waived, expressly or impliedly, as by failure to demand such right, or by non-appearance during the investigation.
Any objection to the lack of preliminary investigation must be made before arraignment, otherwise, the same shall be deemed waived.
WHEN REQUIRED:
In cases where the imposable penalty for the offense charged is more than four years two months and one day (4 years, 2 months and 1 day) without regard to the imposable fine.
For offenses punishable by less than four years two months and one day (4 years, 2 months and 1 day), these cases may be filed even without preliminary investigation.
Under the Rules of Criminal Procedure, specifically Section 2, Rule 112 provides as follow:
"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 pre liminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions.
This rule enumerates the officers authorized to conduct preliminary investigation. The above enumeration is exclusive.
The only exception to ask for the right to have preliminary investigation be conducted for an offense where such investigation is mandatory is when the accused is lawfully arrested and detained without a warrant and he refuses to sign a waiver of Article 125 of the Revised Penal Code.
"Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. "In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel.
WAIVER OF ARTICLE 125 OF THE REVISED PENAL CODE:
If the person arrested without a warrant, avail himself of preliminary investigation before the filing of the complaint or information, his petition may be granted, provided he sign a waiver of the above-cited provision of the Revised Penal Code. The waiver to be valid must be in writing and signed by the person detained or arrested in the presence of his counsel, otherwise, said waiver is null and void (Section 2 (e), Republic Act 7438).
PRELIMINARY INVESTIGATION AFTER FILING OF CRIMINAL CASE:
Even 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 with the same right to adduce evidence in his defense as provided in this Rule.
If the offender is not arrested, the sworn written statement regarding the incident complained of together with his witnesses, if any shall be filed before
the Office of the Prosecutor, in consonance with the rule provided in Section 1 of Rule 110 of the Rules of Criminal Procedure.
After receipt of the complaint, the Office of the Prosecutor shall raffle the case for assignment to an investigating prosecutor for the conduct of preliminary investigation.
The investigating prosecutor to whom the case was assigned by raffle shall then schedule the case for hearing and shall issue subpoena addressed to all parties concerned.
During preliminary investigation stage, the offended party is identified as the complainant and the offender is identified as the respondent.
Under Section 3 of Rule 112 of the Rules of Criminal Procedure, the following course of action shall govern the conduct of preliminary investigation.
STEPS OF PRELIMINARY INVESTIGATION:
a) Filing of the complaint - 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;
b) Action of the investigating prosecutor - 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 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) Resolution - 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.
Pleadings that are required to be submitted by the parties before the investigating prosecutor are the following:
a) Complaint - Complainant/s
b) Counter Affidavit - Respondent/s
c) Reply Affidavit - Complainant/s
d) Rejoinder Affidavit - Respondent/s
In case there is a prejudicial question, a petition may be filed for the suspension of the criminal action before the officer conducting the preliminary investigation or before the investigating judge conducting the preliminary investigation.
Section 6, Rule 111, Rules of Criminal Procedure provides as follow:
"Section 6. Suspension by reason of prejudicial question. - A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.
DEFINITION OF PREJUDICIAL QUESTION:
A prejudicial question is one which arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal.
WHEN A CIVIL QUESTION PREJUDICIAL:
A civil question is prejudicial when it refers to a fact separate and distinct from the offense but intimately connected with it, which question determines the guilt or innocence of the accused.
NATURE OF PREJUDICIAL QUESTION:
The issue of prejudicial question arises in a situation where the two actions, civil and criminal action is pending and there exist an issue which must be resolved in the civil action which is determinative of the guilt or innocence of the accused in the criminal action.
In criminal prosecution for bigamy, the claim of the accused that the first marriage is null and void and the issue of validity of the first marriage is the subject of a civil case. The civil action must be decided first before the criminal case for bigamy can proceed. The issue of validity of the first marriage is the prejudicial question which must be resolved first to determine whether or not the accused can be held guilty of the crime of bigamy.
References:
Atty. Ronaldo Jimenez Pineda Practice Court - PCCR
