Sierra vs. Lopez Digest
Adm. Case No. 7549, August 29, 2008

Facts:

Sierra filed a criminal complaint against several persons before the Office of the City Prosecutor of Manila. The respondents filed their counter-affidavit subscribed and sworn to before the investigating prosecutor and another prosecutor but did not appear during the scheduled hearing. For failure of the investigating prosecutor to require the presence of respondents simultaneously with the Sierra, the latter asked for the prosecutor's inhibition. The city prosecutor affirmed the correctness of the manner in which their investigating prosecutor handled the cases.

Sierra filed a complaint with the Supreme Court for dereliction of duty and gross ignorance of the law against the investigating prosecutor and the city prosecutor. In his complaint, Sierra raises the following questions of law: (1) whether the parties must appear together before the investigating prosecutor during preliminary investigation; (2) whether the counter-affidavits of the respondents should be sworn to only before the investigating prosecutor; and (3) whether the investigating prosecutor erred in denying the request of the complainant for clarificatory questioning.

Held:

1. Rule 112, particularly Section 3 of the Rules of Court, lays down the basic procedure in preliminary investigation. This provision of the Rules does not require a confrontation between the parties. Preliminary investigation is ordinarily conducted through submission of affidavits and supporting documents, through the exchange of pleadings.

The Rules do not require as a condition sine qua non to the validity of the proceedings (in the preliminary investigation) the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics.

2. Since confrontation between the parties is not imperative, it follows that it is not necessary that the counter-affidavit of respondent be sworn to before the investigating prosecutor himself. It can be sworn to before another prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the counter-affidavit shall be subscribed and sworn to and certified as provided in paragraph (a) of this section x x x; and paragraph (a), provides:

the affidavits shall be subscribed and sworn to before any prosecutor or government official or in their absence or unavailability, before a notary public x x x.

3. The investigating prosecutors did not abuse their discretion when they denied the request of the complainant for the conduct of clarificatory questioning. Under paragraph (e) of Section 3 above, the conduct of clarificatory questioning is discretionary upon the prosecutor. Indeed, we already held in Webb v. De Leon that the decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator, and the investigator alone.