Rule 112 – Preminary Investigation 2

PP vs. Judge Gabo (GR: 161083)

Justice Peralta:

Based on Section 6, Rule 112 of the Rules of Court, the RTC judge, upon the filing of an Information, has the following options: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information.

The judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. To this Courts mind, the RTC had complied with its duty of personally evaluating the supporting evidence of the prosecution before arriving at its decision of dismissing the case against respondents.

Tolentino vs. Judge Paqueo, Jr (GR: 150606)

Justice Azcuna:

Since the Regional State Prosecutor is not included among the law officers authorized to approve the filing or dismissal of the Information of the investigating prosecutor, the Information filed by petitionerState Prosecutor Tolentino did not comply with the requirement of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure. Consequently, the non-compliance was a ground to quash the Information under Sec. 3 (d), Rule 117 of the Revised Rules of Criminal Procedure.

Okabe vs. Judge Gutierrez (GR: 150185)

Justice Callejo:

Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing 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.

If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.

In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.

The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial.

Santos-Concio vs. Hon. Raul M Gonzalez (GR: 175057)

Justice Carpio-Morales:

A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person,without the referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate does not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw information may justify the initiation of an investigation, the preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated which may warrant the eventual prosecution of the case in court.

Artillero vs. Casimiro (GR: 190569)

Justice Sereno:

A complainant in a preliminary investigation does not have a vested right to file a Reply.  This right should be granted to him by law. There is no provision in Rule 112 of the Rules of Court that gives the Complainant or requires the prosecutor to observe the right to file a Reply to the accused’ counter-affidavit. To illustrate the non-mandatory nature of filing a Reply in preliminary investigations, Section 3 (d) of Rule 112 gives the prosecutor, in certain instances, the right to resolve the Complaint even without a counter-affidavit, viz:

(d) If the respondent cannot be subpoenaed, of if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

Provincial Prosecutor Dusaban correctly claims that it is discretionary on his part to require or allow the filing or submission of reply-affidavits.

Rule 112- Preliminary Investigation

Leviste vs. Hon. Alameda (GR: 182677)

Justice Carpio-Morales:

A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine. As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant involving such type of offense, so long as an inquest, where available, has been conducte

Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court.

Contreras vs. Judge Monserate 

Justice Quisumbing:

Respondent judge asserts that the Provincial Prosecution Office has no authority to order him to conduct a preliminary investigation inasmuch as the courts primary duty is to hold trial and render decisions, and not to conduct preliminary investigations. His assertion is far from accurate. Respondent judge must be reminded of the duty imposed upon him by Section 1(a), Rule 110 of the Revised Rules on Criminal Procedure. Said provision speaks of the proper officer who shall conduct the requisite preliminary investigation. Under Section 2, Rule 112 of the Revised Rules on Criminal Procedure, a municipal court judge, like herein respondent, is a proper officer authorized to conduct a preliminary investigation. Further, a preliminary investigation is not a judicial function, and as such the findings of the investigating judge are subject to the oversight powers of the public prosecutor. Thus, in we held that:

When a municipal judge conducts a preliminary investigation, he performs a non-judicial function. His function is merely executive in nature. As such, the findings of an investigating judge are subject to review by the Provincial Fiscal whose findings in turn may also be reviewed by the Secretary of Justice in appropriate cases.

Clearly, therefore, Provincial Prosecutor Agapito B. Rosales, through his Second Asst. Provincial Prosecutor, had the authority to compel respondent judge to conduct a preliminary investigation in Criminal Case No. 3222.

PP vs. Hon. Garfin (GR:  153176)

Justice Puno:

Rule 112, Section 4, paragraph 3 provides, viz:

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.

Private respondent and the OSG take the position that the lack of prior authority or approval by the city or provincial prosecutor or chief state prosecutor is an infirmity in the information that prevented the court from acquiring jurisdiction over the case. Since lack of jurisdiction is a defect that may be raised as an objection anytime even after arraignment, the respondent judge did not err in granting the motion to dismiss based on this ground.

Pen vs. Hon. De Castro (GR: 104645)

Justice Purisima:

xxxx As succinctly rationalized by the then Justice, now Chief Justice Andres R. Narvasa, in the germane case of Hadji Ibrahim Solay Pangandaman, et al. vs. Dimaporo T. Casar, as Municipal Circuit Trial Judge of Poonabayabao, et al., L-71782, April 14, 1988, 159 SCRA 599, the procedure prescribed for the conduct of preliminary investigation consists of two (2) phases or stages.

The first phase or stage of the investigation consists of an ex parte inquiry of the sufficiency of the complaint and the affidavits and other documents offered in support thereof, and ends with the determination by the judge either: (1)that there is no ground to continue with the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the records of the case, to the Provincial Fiscal (now Provincial Prosecutor); or (2) that the complaint and the supporting documents show sufficient cause to continue with the inquiry, which finding ushers in the second phase.

The second phase or stage is designed to afford the respondent notice of the Complaint, access to complainants evidence and an opportunity to submit counter-affidavits and supporting documents. In such a scenario, the Judge may conduct a hearing and propound to the parties and their witnesses questions on matters that, in his view, should be clarified. The second phase concludes with the Judge rendering his resolution, either for dismissal of the complaint or finding a prima facie case, and holding the respondent for trial which shall be transmitted, together with the pertinent records, to the provincial prosecutor for appropriate action.

It is thus decisively clear that the rule does not require that preliminary investigation be first completed before a warrant of arrest may issue. What the rule simply provides is that no complaint or information for an offense cognizable by the Regional Trial Court may be filed without completing the preliminary investigation. But nowhere is it mandated that preliminary investigation must be completed before a warrant of arrest may issue.

Rule – 111 Prosecution of civil Action

Casupanan vs. Laroya (GR: 145391)

Justice Carpio:

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Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action.

Thus, the offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict – without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians.

San Ildefonso Lines vs. CA (GR:119771)

Justice Martinez:

The two (2) crucial issues to be resolved, as posited by petitioners, are:

1) If a criminal case was filed, can an independent civil action based on quasi-delict under Article 2176 of the Civil Code be filed if no reservation was made in the said criminal case?

2) Can a subrogee of an offended party maintain an independent civil action during the pendency of a criminal action when no reservation of the right to file an independent civil action was made in the criminal action and despite the fact that the private complainant is actively participating through a private prosecutor in the aforementioned criminal case?

We rule for petitioners.

On the chief issue of “reservation”, at the fore is Section 3, Rule 111 of the Rules of Court which reads:

“Sec. 3. When civil action may proceed independently. — In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence.”

There is no dispute that these so-called “independent civil actions” based on the aforementioned Civil Code articles are the exceptions to the primacy of the criminal action over the civil action as set forth in Section 2 of Rule 111. However, it is easily deducible from the present wording of Section 3 as brought about by the 1988 amendments to the Rules on Criminal Procedure — particularly the phrase ” which has been reserved” — that the “independent” character of these civil actions does not do away with the reservation requirement. In other words, prior reservation is a condition sine qua non before any of these independent civil actions can be instituted and thereafter have a continuous determination apart from or simultaneous with the criminal action. That this should now be the controlling procedural rule is confirmed by no less than retired Justice Jose Y. Feria, remedial law expert and a member of the committee which drafted the 1988 amendments, whose learned explanation on the matter was aptly pointed out by petitioners.

Simon vs. Chan, CA (GR: 157547)

Justice Bersamin:

There is no independent civil action to recover the civil liability arising from the issuance of an unfunded check prohibited and punished under Batas Pambansa Bilang 22 (BP 22).

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The lone issue is whether or not Chan’s civil action to recover the amount of the unfunded check (Civil Case No. 915-00) was an independent civil action.

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Supreme Court Circular 57-97 states:

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  1. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no reservation to file such civil action separately shall be allowed or recognized.

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The CA’s reliance on DMPI Employees Credit Association v. Velez to give due course to the civil action of Chan independently and separately of Criminal Case No. 275381 was unwarranted. DMPI Employees, which involved a prosecution for estafa, is not on all fours with this case, which is a prosecution for a violation of BP 22. Although the Court has ruled that the issuance of a bouncing check may result in two separate and distinct crimes of estafa and violation of BP 22, the procedures for the recovery of the civil liabilities arising from these two distinct crimes are different and non-interchangeable. In prosecutions of estafa, the offended party may opt to reserve his right to file a separate civil action, or may institute an independent action based on fraud pursuant to Article 33 of the Civil Code, as DMPI Employees has allowed. In prosecutions of violations of BP 22, however, the Court has adopted a policy to prohibit the reservation or institution of a separate civil action to claim the civil liability arising from the issuance of the bouncing check upon the reasons delineated in (the case of) Hyatt Industrial Manufacturing Corporation.

Rule 110-Prosecution of Offenses

Ricarze vs. CA (GR: 160451)

Justice Callejo:

Under Section 5, Rule 110 of the Revised Rules of Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor.  Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly instituted, and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the criminal action, the prosecution of the action (including the civil) remains under the control and supervision of the public

prosecutor. The prosecution of offenses is a public function. Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice.  A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case.  The multiplicity of suits must be avoided. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil.  The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.

On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused.

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Amendment or Substitution (Rule 110, sec.14)

Thus, before the accused enters his plea, a formal or substantial amendment of the complaint or information may be made without leave of court.  After the entry of a plea, only a formal amendment may be made but with leave of court and if it does not prejudice the rights of the accused.  After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused.

A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court.  All other matters are merely of form.  The following have been held to be mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecutions theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged.

The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other.  An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance.

Pacoy vs. Hon. Cajigal (GR: 157472)

Justice Austria-Martinez:

While the amended Information was for Murder, a reading of the Information shows that the only change made was in the caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the word Murder. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the same as those already alleged in the original Information for Homicide, as there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made in the caption and preamble from Homicide to Murder as purely formal.

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information. Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution’s theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner.


Calme vs. CA (GR: 116688)

Justice Kapunan:

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Petitioner thus claims that the proper venue is Siquijor because, according to the Marine Protest filed by the vessels captain, Elmer Magallanes, the ship was 8.0 miles off Minalonan Point, Siquijor Island, when he (Capt. Magallanes) received the report that a passenger jumped overboard.

Petitioners contention is unmeritorious. The exact location where the alleged offense was committed was not duly established. The Marine protest simply adverted that the vessel was within the waters of Siquijor Island when the captain was informed of the incident, which does not necessarily prove that the alleged murder took place in the same area. In any case, where the crime was actually committed is immaterial since it is undisputed that it occurred while the vessel was in transit. In transit simply means on the way or passage; while passing from one person or place to another. In the course of transportation. Hence, undoubtedly, the applicable provision is par. (c) of Sec. 15 (now Section 14), Rule 110 which provides that (w)here an offense is committed on board a vessel in the course of its voyage, the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law.

Petitioner further contends that even if Sec. 15(c), Rule 110 governs, Oroquieta City would still be excluded as a proper venue because the reckoning point for determining the venue under the aforementioned paragraph is the first port of entry or the municipalities/territories through which the ship passed after the discovery of the crime, relying on Act No. 400.

We disagree. Obviously, Act No. 400 was amended by Sec. 15(c), Rule 110 of the Revised Rules of Court in that under the former law, jurisdiction was conferred to the CFI of any province into which the ship or water craft upon which the crime or offense was committed shall come after the commission thereof, while the present rule provides that jurisdiction is vested in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage x x x. This is the applicable provision and since it does not contain any qualification, we do not qualify the same.

Guide to Prosecution of Offenses: Rule 110

Ricarze vs. CA (GR 160451)

Under Section 5, Rule 110 of the Revised Rules of Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor.  Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly instituted, and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the criminal action, the prosecution of the action (including the civil) remains under the control and supervision of the public

People vs Nicolas (GR 135877)

We must also note that, even if considered in the light of current provisions of law and the rules, the same ruling would be reached. Under R.A. 8353, rape has been reclassified from being a private crime into a crime against persons. As a result, the prosecution of the crime of rape has been effectively removed from the ambit of the requirements of Chapter Five, Title Eleven of the Revised Penal Code and Section 5, Rule 110 of the 1985 Rules of Criminal Procedure. We note further that on December 1, 2000, the Revised Rules on Criminal Procedure took effect and, following the amendments brought about by R.A. 8353, Section 5, Rule 110 thereof has correspondingly been amended. Rape may now be prosecuted de oficio.

Llenes vs. Judge Dicdican (GR 122274)

By its express mandate, Section 1, Rule 110 of the Rules of Court does not apply to cases covered by the Rule on Summary Procedure. Second, since the ordinance in question partakes of a special penal statute Act No. 3326 is then applicable; hence, it is the filing in the proper court of the complaint or information which suspends the running of the period of prescription.

Pacoy vs. Hon. Cajigal (GR 157472)

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information. Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution’s theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner.

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Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which he was not charged in the information even if it be proven, in which case, there must be a dismissal of the charge and a substitution of a new information charging the proper offense. Section 14 does not apply to a secondinformation, which involves the same offense or an offense which necessarily includes or is necessarily included in the first information. In this connection, the offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form a part of those constituting the latter.

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the amendment of the Information and not the dismissal of the original Information. To repeat, it was the same original information that was amended by merely crossing out the word Homicide and writing the word Murder, instead, which showed that there was no dismissal of the homicide case.