G.R. No. L-6177; April 29, 1953
Gabino Lozada and Isidro Lozada, petitioners, vs. Honorable Fernando Hernandez, etc., et al., respondents.

FACTS

On July 1, 1952, the Provincial Fiscal of Capiz filed an information charging petitioners with robbery with homicide, certifying under oath that he had conducted a proper preliminary investigation on June 27, 1952. Petitioners were arrested, bail was set on July 16, and they were arraigned, pleading not guilty with the assistance of counsel. The trial was scheduled for August 20 but postponed to September 19 at their request. Petitioners then moved to dismiss the case, contending they were deprived of their right to a preliminary investigation without due process because they were not notified of and did not participate in the investigation conducted by the fiscal. The Court of First Instance denied their motion, prompting this petition for certiorari.

ISSUE

Whether the petitioners were deprived of their right to due process by not being notified of and allowed to participate in the preliminary investigation conducted by the provincial fiscal before the filing of the information.

RULING

The petition is denied. A preliminary investigation is not a trial but a preparatory proceeding to determine if a crime was committed and if there is probable cause against the accused. The right to a preliminary investigation is statutory, not a fundamental constitutional right. The governing law, Section 1687 of the Revised Administrative Code as amended by Republic Act No. 732, does not require the provincial fiscal to give notice to the accused before conducting the investigation; notice is required only if the accused requests to be present. Furthermore, even assuming petitioners had a right to be notified, they waived such right by pleading not guilty upon arraignment without previously claiming the absence of a preliminary investigation. The order denying the motion to dismiss is upheld.