On
Resolution of investigating prosecutor and its review

Section 4.

Section 4. Resolution of investigating prosecutor and its review. — 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.

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 any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (4a)



After having filed the information, the prosecutor is called upon to prosecute the case in court. It has been said that at this stage, unlike judges who are mandated to display cold neutrality in hearing cases,
the prosecutors are not required to divest themselves of their personal convictions and refrain from exhibiting partiality. But while he may strike hard blows, he is not at liberty to strike foul ones.



resolution of investigating prosecutor


HE SHALL CERTIFY UNDER OATH IN THE INFORMATION THAT:
1. he or an authorized officer personally examined the complainant and his witnesses;
2. there is reasonable ground a crime has been committed and the accused is probably guilty thereof;
3. the accused was informed of the complaint and the evidence against him; and
4. the accused was given an opportunity to submit controverting evidence.

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 the Ombudsman or his deputy.

EFFECTS OF EXCLUSION OF OTHER PERSONS FROM THE INFORMATION
1. If during the trial, evidence is shown that such persons should have been charged, the fact that they were not included in the information does not relieve them of criminal liability, and they can be subsequently prosecuted.
2. The accused who has been charged with the offense is not allowed to escape punishment merely because it develops in the course of the trial that there were other guilty participants in the crime.
3. It does not vitiate the validity of the information. Neither is the same a ground for a motion to quash.

Role of Secretary Of Justice
- The Secretary of Justice is not prevented from entertaining an appeal from the accused or from the offended party even after the information has been filed and the trial court has arraigned the accused. Section 4 of DOJ 223 should be construed as merely enjoining the Secretary of Justice to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once the complaint or information is filed in court. If the Secretary reverses the ruling of the prosecutor, the latter has to file the necessary motion to dismiss the complaint or information, the grant or denial of which is subject to the discretion of the trial court.

EFFECT IF THE INFORMATION IS FILED BY SOMEONE NOT AUTHORIZED BY LAW
- The court does not acquire jurisdiction. The accused’s failure to assert lack of authority on the part of the prosecutor in filing the information does not constitute a waiver thereof.

The prosecutor is required to resolve the complaint based on the evidence presented by the complainant in the event that the respondent cannot be subpoenaed or the respondent if subpoenaed, does not submit a counter-affidavit within the 10-day period.


Bar Exam Question (1999)

Actions; Discretionary Power of Fiscal (1999)

A filed with the Office of the Fiscal a Complaint for estafa against B. After the preliminary investigation, the Fiscal dismissed the Complaint for lack of merit. May the Fiscal be compelled by mandamus to file the case in court? Explain. 

Suggested Answer

No. The public prosecutor may not be compelled by mandamus to file the case in court because the determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the Secretary of Justice. (Sec. 4 Rule 112.)