Lee: What is preliminary investigation? | SunStar

Lee: What is preliminary investigation?

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Lee: What is preliminary investigation?

Wednesday, May 13, 2015

MOST people believe that once you file a criminal complaint, it automatically goes to court. However, this is incorrect. What actually happens when you file a criminal complaint is that it first undergoes preliminary investigation before the Office of the Prosecutor.

What is preliminary investigation? It is an inquiry or proceeding to determine whether there is sufficient round to engender a well founded belief that crime has been committed and the respondent is probably guilty thereof, and should be held for trial. (Sec. 1, Rule 112, Rules of Criminal Procedure).

Preliminary Investigation is required for all offenses punishable by imprisonment of at least 4 years, 2 months and 1 day, regardless of the fine, except if the accused was arrested by virtue of a lawful arrest without warrant. In such a case, the complaint or information may be filed without a preliminary investigation unless the accused asks for a preliminary investigation and waives his right under Article 125 of the Revised Penal Code. (See J. Sabio Primer Review-Criminal Procedure, p. 55-56)

Now, what is the purpose of a preliminary investigation? According to Justice Sabio, a noted expert in criminal procedure, some of the purposes of a preliminary investigation is: (i) to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer; (ii) 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 to (iii) protect the state from having to conduct useless and expensive trials. (See J. Sabio, Id., p. 56)

The scope of preliminary investigation is merely inquisitorial and it is often the only means of discovering whether the offense has been committed and the persons responsible for it to enable the fiscal to prepare his complaint or information. It is not a trial on the merits and has no purpose but to determine whether there is probable cause to believe that an offense has been committed and that the accused is probably guilty of it. It does not place the accused in jeopardy. (Id., p. 56-57).

The typical process is that a complaint is filed before the office of the Prosecutor, then the respondent is given copies of the complaint and an opportunity to present his counter-affidavit, evidence and defenses. Thereafter, the Prosecutor, after a period of time, will resolve and either dismiss the case or file an information before the court, which would then initiate a criminal trial, the issuance of a warrant of arrest, among others. This is a simplistic summary of a preliminary investigation of course, but it gets the point across.

Clearly, a preliminary investigation is an important proceeding. It helps determine whether or not a criminal complaint will proceed to trial. But, as mentioned above, its most important function, in my opinion, is that it will “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.”

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The opinions expressed herein are solely of Atty. Lee. This column does not constitute legal advice nor does it create a lawyer-client relationship with any party. You can reach Kelvin through his office at tcplawfirm.staff@gmail.com.

Published in the Sun.Star Davao newspaper on May 14, 2015.

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