Preliminary investigation is the process in which a prosecutor determines whether there is probable cause to charge a person with an offense that carries a penalty of at least four years, two months and one day, before a case is filed in court. The respondent is given the chance to file a counter-affidavit. An inquest is a shorter proceeding used when a person is arrested without a warrant; an inquest prosecutor quickly decides whether the detention is lawful and whether to file charges or release the person, and the detainee may instead ask for a regular preliminary investigation.
Most people first encounter the criminal justice system not in a courtroom but in a prosecutor’s office. What happens there — a preliminary investigation or an inquest — often decides whether a case is filed at all, which makes it one of the most important and least understood stages.
Preliminary Investigation: The Screening Before Court
A preliminary investigation is required for offenses where the penalty prescribed is at least four (4) years, two (2) months and one (1) day. Its purpose is to determine whether there is probable cause — a well-founded belief that a crime was committed and that the respondent probably committed it — so that people are not dragged into court on baseless accusations.
The flow is document-driven:
- The complainant files a complaint-affidavit with supporting evidence;
- The prosecutor issues a subpoena to the respondent, who is given the opportunity to file a counter-affidavit answering the charge;
- The prosecutor evaluates both sides and issues a resolution finding probable cause or dismissing the complaint;
- If probable cause is found, the prosecutor files an Information in court, after which the judge independently determines probable cause for a warrant.
The counter-affidavit stage is your best early opportunity to have a weak case dismissed before it ever reaches a judge. Ignoring the subpoena forfeits it. A resolution that is unfavorable can be challenged through a motion for reconsideration and a petition for review to the Department of Justice.
Inquest: When There Is a Warrantless Arrest
An inquest is a different, faster proceeding. It applies when a person has been arrested without a warrant — for example, caught in the act (in flagrante delicto), or in hot pursuit. An inquest prosecutor conducts a summary examination to decide whether the warrantless arrest was lawful and whether there is enough basis to file charges immediately or order release.
The detainee has a crucial option: instead of undergoing inquest, they may ask for a regular preliminary investigation, but doing so ordinarily requires signing a waiver of the provisions of Article 125 of the Revised Penal Code (which sets the maximum hours a person may be detained before being delivered to judicial authorities). This is a strategic decision — more time to answer the charge, in exchange for waiving the detention time limit — that should be made with counsel.
Article 125: The Detention Clock
Article 125 limits how long a person may be detained after a warrantless arrest before charges are filed or the person is released — generally 12, 18, or 36 hours depending on the penalty for the offense. Detaining someone beyond these periods without delivering them to judicial authorities can itself be a crime. This is why inquests move quickly and why the waiver decision arises.
Your Rights Throughout
At both stages you have the right to counsel, the right to remain silent, and the right to be informed of the accusation. In an inquest, do not sign waivers or statements without understanding them. In a preliminary investigation, take the counter-affidavit seriously — it is where cases are won or lost before trial.
Why This Stage Deserves a Lawyer
Because the prosecutor’s resolution can end a case — or send it to trial — the pre-charge stage is not a formality to endure but a contest to win. A well-prepared counter-affidavit, or a sound decision about the Article 125 waiver at inquest, frequently changes the entire course of a criminal matter.
Frequently Asked Questions
What is a preliminary investigation? It is the prosecutor's determination of whether there is probable cause to charge someone, required for offenses punishable by at least four years, two months and one day. The respondent can file a counter-affidavit before any case is filed in court.
What is the difference between an inquest and a preliminary investigation? An inquest is a fast proceeding after a warrantless arrest, where a prosecutor decides quickly whether to file charges or release the person. A preliminary investigation is the fuller, document-based screening for cases where there was no warrantless arrest.
Can I ask for a preliminary investigation if I was arrested without a warrant? Yes. A person under inquest may ask for a regular preliminary investigation, but this usually requires signing a waiver of Article 125, which limits detention time. Make that decision with counsel.
What is Article 125? It sets the maximum hours, generally 12, 18, or 36 depending on the offense, that a person arrested without a warrant may be detained before being delivered to judicial authorities. Detention beyond those limits can itself be a crime.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have received a subpoena or a family member is under inquest, the counter-affidavit and the Article 125 decision matter enormously, our firm can help. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.