7. Effect of Absence of Preliminary Investigation

Nature of right

The right of an accused to a preliminary investigation is not a constitutional but merely a statutory right. Nonetheless, it is a component part of due process in criminal justice and is a substantive right. It is subject to the requirements of both substantive and procedural due process (Duterte v. Sandiganbayan, G.R. No. 130191. April 27, 1998)

A preliminary investigation is not a trial and does not involve the examination of witnesses by way of direct or cross-examinations (Bautista v. CA, G.R. No. 143375, July 6, 2001).

Preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence. The merits and validity of the accusation or defense and the admissibility of testimonies and evidence are better ventilated during trial (Ricaforte v. Jurado, G.R. No. 154428, Sept. 5, 2007).

The right to a preliminary investigation is a personal right and may be waived expressly or by implication (People v. Lazo, G.R. No. 75367. June 19, 1991).

Lack of preliminary investigation is not a ground to quash or dismiss a complaint or information, nor does it affect the court’s jurisdiction (Pilapil v. Sandiganbayan, G.R. No. 101978. April 7, 1993).

If there was no preliminary investigation and an objection was raised, the court, instead of dismissing the complaint or information, should order the conduct of such investigation (Estrada v. Ombudsman, G.R. 212140-41, 2015).

Effects of an Incomplete Preliminary Investigation

• It does not warrant the quashal of the information
• It does not affect the court’s jurisdiction or the validity of the information.

A motion to dismiss is now a prohibited pleading during preliminary investigation.

The respondent is now required to submit counteraffidavits and other supporting documents relied upon by him for his defense.

The respondent has now the right to examine the evidence submitted by the complainant of which he may not have been furnished and to obtain copies thereof at his expense.

If respondent cannot be subpoenaed, or if subpoenaed but does not submit his counter-affidavit within 10 days, investigating officer shall resolve the complaint based on the evidence presented by the complainant.

Purposes of preliminary investigation

Remedies of accused if there was no preliminary investigation

Remedies of the Accused:

• Before a complaint or information is filed, he may ask for a preliminary investigation but he must sign a waiver of the provision of Art. 125 of the RPC in the presence of his counsel; if it is refused, he may file a petition for certiorari
• After the filing of the complaint or information in court without a preliminary investigation, the accused may, within 5 days from the time he learns of its filing, ask for a Preliminary Investigation (Sec. 6 Rule 112);
• Refuse to enter a plea upon arraignment and object to further proceedings upon such ground;
• Raise lack of preliminary investigation as error on appeal (US v. Banzuela, 1915);
• File for prohibition (Conde v. CFI, 1923).

Note: The absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information. The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation. (Villaflor v. Viva, G.R. No. 134744, 2001)