According to People v. Beriales (1976 case), he should be present. If he is not physically present, it cannot be said that the prosecution was under his direction and control.
But in People v. Malinao and Bravo v. CA, it was held that the proceedings are valid even without the physical presence of the Fiscal who left the prosecution to the private prosecutor under his supervision and control.
Who prosecutes the criminal action in the absence of the prosecutor?
In the MTC, when the prosecutor assigned is absent or not available, the offended party, any peace officer or public officer charged with the enforcement of the law violated may prosecute the case. Such authority ceases upon the intervention of the prosecutor or when the case is elevated to the RTC.
