RODNEY HEGERTY, petitioner, vs. THE HON. COURT APPEALS and ALLAN NASH, respondents. DECISION YNARES-SANTIAGO, J.

OF

denied again for having been filed beyond the reglementary period of ten (10) days. Undaunted, Nash filed with the Court of Appeals a petition for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil Procedure, contending that the DOJ acted in grave abuse of discretion amounting to lack of or in excess of jurisdiction when it dismissed his appeal and denied his motion for reconsideration. On June 28, 2002, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads: WHEREFORE, premises considered, the PETITION is GRANTED. The undated resolution and 22 August 2001 resolution are REVERSED and SET ASIDE. The public respondent is directed to prosecute respondent Hegerty for the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. SO ORDERED.[4] Hegerty is now before us on this petition for review, raising the following issues: I. DOES THE RESPONDENT COURT OF APPEALS HAVE JURISDICTION OVER A CASE WHICH STARTED AT THE OFFICE OF THE PROSECUTOR OF MANILA THEN APPEALED TO THE DEPARTMENT OF JUSTICE BUT WHICH APPEAL WAS FILED WAY OUT OF TIME? II. MAY THE RESPONDENT COURT OF APPEALS ACTING WITHOUT JURISDICTION ORDER THE PROSECUTION OF A CRIMINAL CASE?[5] Hegerty contends that since Nashs appeal with the DOJ and his motion for reconsideration were both filed out of time, the prosecutors resolution had become final and executory. Consequently, the DOJ and the Court of Appeals never acquired jurisdiction over the case. Corollarily, the Court of Appeals does not have the authority to order the filing of a case in the absence of grave abuse of discretion on the part of the prosecutor. We agree. The rule is settled that our duty in an appropriate case is confined to determining whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion. Thus, although it is entirely possible that the investigating fiscal may erroneously exercise the discretion lodged in him by law, this does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent

This petition seeks to annul and set aside the decision of the Court of Appeals in CA-G.R. SP No. 66680[1] which reversed the resolution[2] of the Office of the City Prosecutor of Manila dismissing the complaint for estafa filed against petitioner Rodney Hegerty, as well as the resolution of the Secretary of Justice dismissing respondent Allan Nashs appeal and denying his motion for reconsideration for having been filed out of time. Respondent Allan Nash alleged that petitioner Rodney Hegerty, together with the deceased Don Judevine and James Studenski, invited him to invest in a foreign exchange scheme with a guaranteed return of 10.45% per annum on the money invested. From July 1992 to November 28, 1997, Nash invested a total of US$236,353.34. Sometime in December 1997, Hegerty informed Nash that all his investments had been lost after he lent a portion of the investment to Swagman Hotels and Travel, Inc., of which he was a stockholder. Initially, Hegerty offered to return to Nash half of his total investment, but later on withdrew the offer. After his demands were ignored, Nash filed a complaintaffidavit against Hegerty before the City Prosecutor of Manila for estafa under Article 315 (1) (b) of the Revised Penal Code. For his part, Hegerty denied making any invitation to Nash to invest his money in any foreign exchange scheme. Neither did he divert any portion of such investment to the Swagman Group of Companies. He, however, admitted his acquaintance with Judevine and Studenski but denied that they were his business partners. He likewise disclaimed any knowledge of or participation in any of the receipts and cash vouchers presented by Nash supposedly as proofs of his investments. The City Prosecutor dismissed the complaint for estafa against Hegerty for insufficiency of evidence. Upon receipt of a copy of the said resolution on June 16, 1999, counsel of Nash filed a motion for reconsideration. On May 8, 2000, Nash himself received a copy of the resolution denying the motion for reconsideration. On May 19, 2000, Nash filed an appeal with the Department of Justice (DOJ), however, the same was dismissed[3] for having been filed out of time. He filed a motion for reconsideration, which was

any showing of grave abuse of discretion amounting to excess of jurisdiction.[6] The pivotal question, therefore, in this case is: whether the City Prosecutor acted with grave abuse of discretion in dismissing the criminal complaint for estafa against Hegerty. In D.M. Consunji, Inc. v. Esguerra,[7] we defined grave abuse of discretion in this wise: By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. The City Prosecutor had the duty to determine whether there was a prima facie case for estafa based on sufficient evidence that would warrant the filing of an information. The elements of estafa through misappropriation as defined and penalized under Article 315 (1) (b) are: (1) That money, goods, or other personal property be received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (2) That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (3) That such misappropriation or conversion or denial is to the prejudice of another; and (4) That there is a demand made by the offended party to the offender.[8] The City Prosecutor dismissed the complaint for estafa based on the following findings: Recouping everything that has been maintained and asserted by the parties, there is really reason to believe that the complainant had in fact made some investments with the late DON JUDEVINE who acknowledged receipts thereof and bound himself thereby alone. There is, however, an utter and absolute absence of a showing that the respondent partook of the said investments nor had any business dealing with either the late DON JUDEVINE or the complainant. Complainant also tried in vain to show some form of a partnership between the respondent and the two deceased

individuals but the former failed to adduce any tangible evidence to support the same except his general declarations which remain bare as they were. [9] A public prosecutor, by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient evidence of guilt norprima facie case has been presented by the petitioner.[10] We need only to stress that the determination of probable cause during a preliminary investigation or reinvestigation is recognized as an executive function exclusively of the prosecutor. An investigating prosecutor is under no obligation to file a criminal action where he is not convinced that he has the quantum of evidence at hand to support the averments. Prosecuting officers have equally the duty not to prosecute when after investigation or reinvestigation they are convinced that the evidence adduced was not sufficient to establish a prima facie case. Thus, the determination of the persons to be prosecuted rests primarily with the prosecutor who is vested with discretion in the discharge of this function.[11] In Quiso v. Sandiganbayan,[12] we pointed out that: x x x [A] fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. Although this power and prerogative x x x is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion he does not have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case. The remedy of mandamus does not lie to compel the City Prosecutor to file an Information against petitioner. There being no showing of grave abuse of discretion which will warrant the reversal of the dismissal of the complaint against petitioner, there is also no ground to issue a writ of mandamus.[13] In the case at bar, we find no evidence to prove that the City Prosecutor abused, much less gravely abused, his discretion when he dismissed the complaint for estafa filed against Hegerty. Moreover, the appeal filed by respondent with the Department of Justice was out of time. Section 2 of DOJ Order No. 223 dated June 30, 1993, which was then in force, provides: When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the

party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. In the case at bar, respondents counsel received a copy of the resolution of the City Prosecutor dismissing the complaint on June 16, 1999. The tenth day, June 26, fell on a Saturday; thus, the motion for reconsideration was filed on Monday, June 28, 1999. On May 8, 2000, respondent received the resolution denying his motion for reconsideration. He filed an appeal with the Department of Justice on May 19, 2000. Under the above-quoted rule, respondents fifteen-day period to appeal was interrupted by the filing of the motion for reconsideration on the tenth day. The said period continued to run again when he received the resolution denying his motion for reconsideration, but only for the remaining period of five days. Therefore, respondent only had until May 15, 2000 May 13, 2000 was a Saturday within which to appeal. His appeal filed on May 19, 2000 was clearly out of time. Respondent Nash, however, argues that the service to him of the resolution of the City Prosecutor denying his motion for reconsideration was invalid inasmuch as he was represented by counsel. There is no generally accepted practice in the service of orders, resolutions, and processes, which allows service upon either the litigant or his lawyer. While as a rule, notice or service made upon a party who is represented by counsel is a nullity, this admits of exceptions, as when the court or tribunal orders service upon the party or when the technical defect is waived.[14] The above-quoted DOJ Rule expressly provides that service of resolutions may be made to the party or his counsel. In this connection, we had occasion to rule:[15] A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in preliminary investigations, service can be made upon the party himself or through his counsel. It must be assumed that when the Justice Department crafted the said section, it was done with knowledge of the pertinent rule in the Rules of Court and of jurisprudence interpreting it. The DOJ could have just adopted the rule on service provided for in the Rules of Court, but did not. Instead, it opted to word Section 2 of DOJ Order No. 223 in such a way as to leave no doubt that in preliminary investigations, service of resolutions of public prosecutors could be made upon either the party or his counsel.

WHEREFORE, in view of the foregoing, the petition is GRANTED. The decision of the Court of Appeals in CA G.R. SP No. 66680 is REVERSED and SET ASIDE. The Resolution of the City Prosecutor of Manila, which dismissed the complaint against petitioner for estafa, and the Resolution of the Department of Justice which denied respondents appeal, are REINSTATED. No costs. SO ORDERED. Davide, JJ., concur. Jr., C.J. , (Chairman), Vitug, Carpio and Azcuna,

G.R. No. 126005 January 21, 1999 PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY, petitioners, vs. COURT OF APPEALS, BILLY CERBO and JONATHAN CERBO, respondents. PANGANIBAN, J.: In our criminal justice system, the public prosecutor has the quasijudicial discretion to determine whether or not case should be filed in court. Courts must. respect the exercise of such discretion when the information filed against the accused valid on its face, and no manifest error, grave abuse of discretion or prejudice can be imputed to the public prosecutor. The Case Before us is a Petition for Review under Rule 45, seeking to reverse the June 28, 1996 Decision and the August 27, 1996 Resolution of the Court of Appeals 1 in CA-GR SP No. 36018. 2 The assailed Decision dismissed the Petition for Certiorari filed by the petitioners, which sought to annul and set aside two Orders of the Regional Trial Court of Nabunturan, Davao: the June 28, 1994 Order dismissing the Information for murder filed against Private Respondent Billy Cerbo and the August 18, 1994 Order denying petitioners' motion for reconsideration. The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise denied petitioners' motion for reconsideration. The Facts The case below arose from the fatal shooting of Petitioner Dy's mother, Rosalinda Dy, in which the primary suspect was Private Respondent Jonathan Cerbo, son of Private Respondent Billy Cerbo. The procedural and factual antecedents of the case were summarized in the challenged Decision of the Court of Appeals as follows: On August 30, 1993, Rosalinda Dy, according to the petition, was shot at pointblank range by private respondent Jonathan Cerbo in the presence and at the office of his father, private respondent Billy Cerbo at Purok 9, Poblacion, Nabunturan, Davao. On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit positively identifying private

respondent Jonathan Cerbo as the assailant. (Annex C, Rollo, p. 34). On September 20, 1993, private respondent Jonathan Cerbo executed a counter-affidavit interposing the defense that the shooting was accidental (Annex D: Rollo, pp. 35-36). On October 6, 1993, the 3rd Municipal Circuit Trial Court of Nabunturan-Mawab, Davao, after a preliminary investigation, found "sufficient ground to engender a wellfounded belief" that the crime of murder has been committed by private respondent Jonathan Cerbo and resolved to forward the entire records of the case to the provincial prosecutor at Tagum, Davao (Annex E, Rollo, pp. 37-38). After [an] information for murder was filed against Jonathan Cerbo, petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy, executed an affidavit-complaint charging private respondent Billy Cerbo of conspiracy in the killing (Annex F, Rollo, p. 39), supported by a supplemental affidavit of Elsa B. Gumban, alleging "in addition" to her previous statement that: 3. In addition to my said sworn statement, I voluntarily and freely aver as follows: a) I vividly recall that while my mistress Rosalinda Go and I were in the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo personally instructed me to fetch the food from the kitchen [and to bring it] to the office instead of the dining room. b) While bringing the food, Mr. Cerbo again instructed me to place the food [o]n a corner table and commanded me to sit behind the entrance door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair facing the entrance door for an easy target. c) Immediately after Rosalinda was shot, Mr. Billy Cerbo called his son Jonathan who was running, but did not and ha[s] never bothered to bring Rosalinda to a hospital or even apply first aid. d) To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to the hospital, brought her to the funeral parlor and immediately ordered her to be embalmed without even informing her children or any of her immediate relatives xxx.' Annex G. Rollo, p. 40.)

Private respondent Billy Cerbo submitted a counter-affidavit denying the allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban (Annex H, Rollo, pp. 41-42). On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a "Motion for leave of court to reinvestigate the case" (Annex I, Rollo, pp. 43-44) which was granted by the respondent judge in an order dated April 28, 1994 (Annex J, Rollo, p. 45). In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended the filing of an amended information including Billy Cerbo ". . . as one of the accused in the murder case . . ." (Annex K: Rollo, pp. 46-49). Accordingly, the prosecution filed an amended information including Billy Cerbo in the murder case. A warrant for his arrest was later issued on May 27, 1994 (Rollo, p. 27). Private respondent Billy Cerbo then filed a motion to quash warrant of arrest arguing that the same was issued without probable cause (Rollo, p. 27). On June 28, 1994, respondent Judge issued the first assailed order dismissing the case against Billy Cerbo and recalling the warrant for his arrest[;] the dispositive portion of [the order] reads: IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued DISMISSING the case as against Billy Cerbo only. Let, therefore, the warrant of arrest, dated May 27, 1994, be RECALLED. The prosecution is hereby ordered to withdraw its Amended Information and file a new one charging Jonathan Cerbo only. SO ORDERED. (Rollo, pp. 29-30). Private Prosecutor Romeo Tagra filed a motion for reconsideration which was denied by the respondent judge in his second assailed order dated August 18, 1994 (Annex B, Rollo, pp. 31-33). 3 The Ruling of the Court of Appeals In its 10-page Decision, the Court of Appeals debunked petitioners' assertion that the trial judge committed a grave abuse of discretion in recalling the warrant of arrest and subsequently dismissing the

case against Billy Cerbo. Citing jurisprudence, 4 the appellate court held as follows: The ruling is explicit. If upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, finds that no probable cause exists, must either call for the complainant and the witnesses or simply dismiss the case. Petitioners question the applicability of the doctrine laid down in the above[-]mentioned case, alleging that the facts therein are different from the instant case. We rule that the disparity of facts does not prevent the application of the principle. We have gone over the supplemental affidavit of Elsa B. Gumban and taking into account the additional facts and circumstances alleged therein, we cannot say that respondent judge gravely abused his discretion in dismissing the case as against private respondent Billy Cerbo for lack of probable cause. xxx xxx xxx The prosecution, if it really believed that Billy Cerbo is probably guilty by conspiracy, should have presented additional evidence sufficiently and credibly demonstrating the existence of probable cause. xxx xxx xxx
5

In sum, the Court of Appeals held that Judge Eugenio Valles did not commit grave abuse of discretion in recalling the warrant of arrest issued against Private Respondent Billy Cerbo and subsequently dismissing the Information for murder filed against the private respondent, because the evidence presented thus far did not substantiate such charge. Hence, this petition. 6 The Assigned Errors Petitioner Dy avers: 1) The Court of Appeals gravely erred in holding that the Regional Trial Court Judge had the authority to reverse [the public prosecutor's] finding of probable cause to prosecute accused . . . and thus dismiss the

case filed by the latter on the basis of a motion to quash warrant of arrest. 2) The Court of Appeals gravely erred in fully and unqualifiedly applying the case of Allado, et. al. vs. PACC, et. al. G.R. No. 113630, [to] the case at bench despite [the] clear difference in their respective factual backdrop[s] and the contrary earlier jurisprudence on the matter. 7 On the other hand, the solicitor general posits this sole issue: Whether the Court of Appeals erred in finding that no probable cause exists to merit the filing of charges against private respondent Billy Cerbo. 8 Essentially, the petitioners are questioning the propriety of the trial court's dismissal, for want of evidence, of the Information for murder against Private Respondent Billy Cerbo. In resolving this petition, the discussion of the Court will revolve around the points: first, the determination of probable cause as an executive and judicial function and, second, the applicability of Allado and Salonga to the case at bar. The Court's Ruling The petition is meritorious. The trial court erred in dismissing the information filed against the private respondent. Consequently the Court of Appeals was likewise in error when ias to whether or not it suffices "to engender a well founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial." It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor, one that, as far as crimes cognizable by a Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative process of a sort, exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of a criminal action. The proceedings before a public prosecutor, it may well be stressed, are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime.

Whether or not that function has been correctly discharged by the public prosecutor i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. It is not for instance permitted for an accused, upon the filing of the information against him by the public prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quash or dismissal of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth inadequate, for the complaining party to present a petition before the Court praying that the public prosecutor be compelled to file the corresponding information against the accused. xxx xxx xxx Indeed, the public prosecutor has broad discretion to determine whether probable cause exists and to charge those whom be or she believes to have committed the crime as defined by law. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case list be filed in court. 11 Thus, in Crespo v. Mogul, 12 we ruled: It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence, in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecutions by private persons. . . . Prosecuting officers under the power vested in them by the law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the duty not to prosecute when the evidence adduced is not sufficient to establish a prima facie case. This broad prosecutoral power is however nor unfettered, because just as public prosecutors are obliged to bring forth before the law those who have transgressed it, they are also constrained to be

circumspect in filing criminal charges against the innocent. Thus, for crimes cognizable by regional trial courts, preliminary investigations are usually conducted. In Ledesma v. Court of Appeals, 13 we discussed the purposes and nature of a preliminary investigation in this manner: The primary objective of a preliminary investigation is to free respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt in a more or less summary proceeding by a competent office designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of the unnecessary expense an effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges. Such investigation is not part of the trial. A full and exhaustive presentation of the parties' evidence is not required, but only such as may engender a well-grounded belief than an offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronounct upheld such ruling. Executive Determination of Probable Cause The determination of probable cause during a preliminary investigation is a function that belongs to the public prosecutor. It is an executive function, 9 the correctness of the exercise of which is matter that the trial court itself does not and may not be compelled to pass upon. The Separate (Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts v. Court of Appeals 10 succinctly elucidates such point in this wise: xxx xxx xxx In this special civil action, this Court is being asked to assume the function of a public prosecutor. It is being asked to determine whether probable cause exists as regards petitioners. More concretely, the Court is being asked to examine and assess such evidence as has thus far been submitted by the parties and, on the basis thereof, make a conclusion ement of acquittal. Hence, no double jeopardy attaches. Judicial Determination of

Probable Cause The determination of probable cause to hold a person for trial must be distinguished from the determination of probable cause to issue a warrant of arrest, which is a judicial function. The judicial determination of probable cause in the issuance of arrest warrants has been emphasized in numerous cases. In Ho v. People, 14 the Court summarized the pertinent rulings on the subject, as follows: The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy himself that based on the evidence submitted, there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof." At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon we stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the prosecutor's initial determination finding probable cause to see if it is supported by substantial evidence. xxx xxx xxx In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence or nonexistence of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence of non-existence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of the accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as the Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounded duty if he relies merely on the certification or the report of the investigating officer. xxx xxx xxx

Verily, a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so. Corollary to this principle, the judge should not override the public prosecutor's determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient, as in the present case. Indeed, it could be unfair to expect the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter. The reason is found in the nature and the objective of a preliminary investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine "whether there is sufficient ground to engender a well-founded belief that a crime . . . has been committed and that the respondent is probably guilty thereof, and should be held for trial." 15 Evidentiary matters must be presented and heard during the trial. 16 Therefore, if the information is valid on its face, and there is no showing of manifest error, grave abuse of discretion and prejudice on the part of the public prosecutor , the trial court should respect such determination. Inapplicabilty of Allado and Salonga The Court of Appeals anchored its ruling on the pronouncement made in Allado v. Diokno:" . . . [I]f, upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists." 17 In Allado, Petitioners Diosdado Jose Allado and Roberto I. Mendoza, practicing lawyers, were accused by the Presidential Anti-Crime Commission (PACC) of kidnapping with murder and ordered by Judge Roberto C. Diokno to be arrested without bail. The petitioners questioned the issuance of the warrants for their arrest contending that the respondent judge acted with grave abuse of discretion and in excess of his jurisdiction in holding that there was probable cause against them. They contended that the trial court relied merely on the resolution of the investigating panel and its certification that probable cause existed, without personally determining the admissibility and sufficiency of the evidence for such finding and without stating the basis thereof. They maintained

that the records of the preliminary investigation, which was the sole basis of the judge's ruling, failed to establish probable cause against them that would justify the issuance of warrants for their arrest. The Court declared that Judge Diokno has indeed committed grave abuse of discretion in issuing the arrest warrants. Contrary to the constitutional mandate and established jurisprudence, he merely relied on the certification of the prosecutors as to the existence of the probable cause, instead of personally examining the evidence, the complainant and his witness." For otherwise," the Court said "he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of the petitioners" 18 In categorically stating that the evidence so far presented did not meet the standard of probable cause and subsequently granting the petition, the Court noted the following circumstances: first, the corpus delicti was not established, and there was serious doubt as to the alleged victim's death: second, the extra judicial statement of the principal witness, who had priorly confessed his participation in the crime, was full of material inconsistencies; and third, the PACC operatives who investigated the case never implicated the petitioners. Citing Salonga v. Cruz-Pao, the Court of Appeals pointed out that when there was no prima facie case against a person sought to be charged with a crime, "the judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn out during trial, for this would be flagrant violation of a basic right which the courts are created to uphold." 19 In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing of an Information for violation of the revised Anti-Subversion Act, which Judge Ernani Cruz-Pano had ordered to be filed against him. In sustaining the petitioner, the Court held that the evidence upon which the Information was based was not sufficient to charge him for a violation of the Revised Subversion Act. In all, the Court decreed in both cases that there was no basis in law and in fact for the judicial and executive determination at probable cause. The Court also held that the government, while vested with the right and the duty to protect itself and its people against transgressors of the law, must perform the same in a manner that would not infringe the perceived violators' rights as guaranteed by the Constitution. However, the present case is not on all fours with Allado and Salonga. First, Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was not a participation or

conspirator in the commission of the said crime. In Allado and Salonga, however, the main witnesses were the confessed perpetrators of the crimes, whose testimonies the court deemed 'tainted'. 20 Second, in the case at bar, the private respondent was accorded due process, and no precipitate haste or bias during the investigation of the case can be imputed to the public prosecutor. On the other hand, the Court noted in Allado the "undue haste in the filing of the Information and in the inordinate interest of the government" in pursuing the case; 21 and in Salonga, " . . . the failure of the prosecution to show that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutioner rights [and] the massive and damaging publicity against him." 22 In other words, while the respective sets of evidence before the prosecutors in the Allado and Salonga were "utterly insufficient" to support a finding of probable cause, the same cannot be said of the present case. We stress that Allado and Salonga constitute exceptions to the general rule and may be invoked only if similar circumstances are clearly shown to exist. But as the foregoing comparisons show, such similarities are absent in the instant case. Hence, the rulings in the two aforementioned cases cannot apply to it. Motion Without Requisite Notice One more thing, Petitioners aver that Private Respondent Cerbo did not give them a copy of the Motion to Quash the Warrant of Arrest, which had been issued against him, or a notice of the scheduled hearing. Thus, they contend, Judge Valles should not have entertained such motion. It is settled that every written motion in a trial court must be set for hearing by the applicant and served with the notice of hearing thereof, in such a manner as to ensure its receipt by the other party. The provisions on this matter in Section 4 and 5, Rule 15 of the Rules of the Court, 23 are categorical and mandatory character. 24 Under Section 6 of the said rule, no motion shall be acted upon by the court without proof of service thereof. The rationale for this rule is simple: unless the movants set the time and the place of hearing, the court will be unable to determine whether the adverse parties agree or object to the motions, since the rules themselves do not fix any period within which they may file their replies or oppositions. 25 The motion to quash the warrant of arrest in the present case being pro forma, inasmuch as the requisite copy and notice were not duly served upon the adverse party, the trial court had no authority to act on it.

Epilogue In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent Billy Cerbo. We simply saying that, as a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for 'want of evidence,' because evidentiary matters should be presented and heard during the trial. The functions and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our criminal justice system should be clearly understood. The rights of the people from what could sometimes be an ''oppressive" exercise of government prosecutorial powers do need to be protected when circumstances so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor's duties, courts ought to refrain from interfering with such lawfully and judicially mandated duties. In any case, if there was palpable error or grave abuse of discretion in the public prosecutor's finding of probable cause, the accused can appeal such finding to the justice secretary 26 and move for the deferment or suspension of the proceeding until such appeal is resolved. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Nabunturan, Davao, which is ordered to reinstate the amended information against Private Respondent Billy Cerbo and to proceed with judicious speed in hearing the case. No. costs.1wphi1.nt SO ORDERED. Romero, Vitug, Purisima, and Gonzaga-Reyes, JJ., concur. G.R. No. 101837 February 11, 1992 ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents. FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting

and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself

that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds: a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity. On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated.

Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police

authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal

should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis supplied) Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence

formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25 It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider

that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right. The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the

procedure he was being forced to undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he crossexamined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for

cancellation of investigation.

bail

at

the

conclusion

of

the

preliminary

G.R. No. 122452

January 29, 2001

TAM WING TAK, petitioner, vs. HON. RAMON P. MAKASIAR (in his Capacity as Presiding Judge of the Regional Trial Court of Manila, Branch 35) and ZENON DE GUIA (in his capacity as Chief State Prosecutor), respondents. QUISUMBING, J.: This is a petition for review on certiorari of the decision of the Regional Trial Court of Manila, Branch 35, dated September 14, 1995, which dismissed herein petitioner's special civil action for mandamus and sustained the Letter-Order of respondent Chief State Prosecutor. The latter dismissed petitioner's appeal from the resolution of the City Prosecutor of Quezon City, which, in turn, dismissed petitioner's complaint against Vic Ang Siong for violation of the Bouncing Checks Law or B.P. Blg. 22. The factual background of this case is as follows: On November 11, 1992, petitioner, in his capacity as director of Concord-World Properties, Inc., (Concord for brevity), a domestic corporation, filed an affidavit-complaint with the Quezon City Prosecutor's Office, charging Vic Ang Siong with violation of B.P. Blg. 22. Docketed by the Prosecutor as I.S. No. 93-15886, the complaint alleged that a check for the amount of P83,550,000.00, issued by Vic Ang Siong in favor of Concord, was dishonored when presented for encashment. Vic Ang Siong sought the dismissal of the case on two grounds: First, that petitioner had no authority to file the case on behalf of Concord, the payee of the dishonored check, since the firm's board of directors had not empowered him to act on its behalf. Second, he and Concord had already agreed to amicably settle the issue after he made a partial payment of P19,000,000.00 on the dishonored check.1wphi1.nt On March 23, 1994, the City Prosecutor dismissed I.S. No. 93-15886 on the following grounds: (1) that petitioner lacked the requisite authority to initiate the criminal complaint for and on Concord's behalf; and (2) that Concord and Vic Ang Siong had already agreed upon the payment of the latter's balance on the dishonored check. A copy of the City Prosecutor's resolution was sent by registered mail to petitioner in the address he indicated in his complaintaffidavit. Notwithstanding that petitioner was represented by counsel, the latter was not furnished a copy of the resolution.

On June 27, 1994, petitioner's counsel was able to secure a copy of the resolution dismissing I.S. No. 93-15886. Counting his 15-day appeal period from said date, petitioner moved for reconsideration on July 7, 1994. On October 21, 1994, the City Prosecutor denied petitioner's motion for reconsideration. Petitioner's counsel received a copy of the denial order on November 3, 1994. On November 7, 1994, petitioner's lawyer filed a motion to extend the period to appeal by an additional 15 days counted from November 3, 1994 with the Chief State Prosecutor. He manifested that it would take time to communicate with petitioner who is a Hong Kong resident and enable the latter to verify the appeal as procedurally required. On November 8, 1994, petitioner appealed the dismissal of his complaint by the City Prosecutor to the Chief State Prosecutor. The appeal was signed by petitioner's attorney only and was not verified by petitioner until November 23, 1994. On December 8, 1994, the Chief State Prosecutor dismissed the appeal for having been filed out of time. Petitioner's lawyer received a copy of the letter-resolution dismissing the appeal on January 20, 1995. On January 30, 1995, petitioner moved for reconsideration. On March 9, 1995, respondent Chief State Prosecutor denied the motion for reconsideration. Petitioner then filed Civil Case No. 95-74394 for mandamus with the Regional Trial Court of Quezon City to compel the Chief State Prosecutor to file or cause the filing of an information charging Vic Ang Siong with violation of B.P. Blg. 22. On September 14, 1995, the trial court disposed of the action as follows: WHEREFORE, for utter lack of merit, the petition for mandamus of petitioner is DENIED and DISMISSED. SO ORDERED.1 Petitioner moved for reconsideration, but the trial court denied this motion in its order dated October 24, 1995. Hence, the instant petition. Before this Court, petitioner claims respondent judge committed grave errors of law in sustaining respondent Chief State Prosecutor whose action flagrantly contravenes: (1) the established rule on

service of pleadings and orders upon parties represented by counsel; (b) the basic principle that except in private crimes, any competent person may initiate a criminal case; and (3) the B.P. Blg. 22 requirement that arrangement for full payment of a bounced check must be made by the drawer with the drawee within five (5) banking days from notification of the check's dishonor.2 We find pertinent for our resolution the following issues: (1) Was there valid service of the City Prosecutor's resolution upon petitioner? (2) Will mandamus lie to compel the City Prosecutor to file the necessary information in court? In upholding respondent Chief State Prosecutor, the court a quo held: It is generally accepted principle in the service of orders, resolutions, processes and other papers to serve them on the party or his counsel, either in his office, if known, or else in the residence, also if known. As the party or his counsel is not expected to be present at all times in his office or residence, service is allowed to be made with a person in charge of the office, or with a person of sufficient discretion to receive the same in the residence. In the case under consideration, it is not disputed that the controverted Resolution dismissing the complaint of the petitioner against Vic Ang Siong was served on the former by registered mail and was actually delivered by the postmaster on April 9, 1994 at said petitioner's given address in the record at No. 5 Kayumanggi Street, West Triangle, Quezon City. The registered mail was in fact received by S. Ferraro. The service then was complete and the period for filing a motion for reconsideration or appeal began to toll from that date. It expired on April 24, 1994. Considering that his motion for reconsideration was filed only on July 7, 1994, the same was filed beyond the prescribed period, thereby precluding further appeal to the Office of the respondent.3 Petitioner, before us, submits that there is no such "generally accepted practice" which gives a tribunal the option of serving pleadings, orders, resolutions, and other papers to either the opposing party himself or his counsel. Petitioner insists that the fundamental rule in this jurisdiction is that if a party appears by counsel, then service can only be validly made upon counsel and service upon the party himself becomes invalid and without effect.

Petitioner relies upon Rule 13, Section 2 of the Rules of Court4 and our ruling in J.M. Javier Logging Corp. v. Mardo, 24 SCRA 776 (1968) to support his stand. In the J.M. Javier case, we held: [W]here a party appears by attorney, notice to the former is not a notice in law, unless service upon the party himself is ordered by the court5 The Solicitor General, for respondents, contends that the applicable rule on service in the present case is Section 2 of the Department of Justice (DOJ) Order No. 223,6 which allows service to be made upon either party or his counsel. Respondents argue that while a preliminary investigation has been considered as partaking of the nature of a judicial proceeding,7 nonetheless, it is not a court proceeding and hence, falls outside of the ambit of the Rules of Court. We agree with petitioner that there is no "generally accepted practice" in the service of orders, resolutions, and processes, which allows service upon either the litigant or his lawyer. As a rule, notice or service made upon a party who is represented by counsel is a nullity,8 However, said rule admits of exceptions, as when the court or tribunal order service upon the party9 or when the technical defect is waived.10 To resolve the issue on validity of service, we must make a determination as to which is the applicable rule the on service in the Rules of Court, as petitioner insists or the rule on service in DOJ Order No. 223? The Rules of Court were promulgated by this Court pursuant to Section 13, Article VII of the 1935 Constitution 11(now Section 5 [5], Article VIII of the Constitution)12 to govern "pleadings, practice and procedure in all courts of the Philippines." The purpose of the Rules is clear and does not need any interpretation. The Rules were meant to govern court (stress supplied) procedures and pleadings. As correctly pointed out by the Solicitor General, a preliminary investigation, notwithstanding its judicial nature, is not a court proceeding. The holding of a preliminary investigation is a function of the Executive Department and not of the Judiciary. 13 Thus, the rule on service provided for in the Rules of Court cannot be made to apply to the service of resolutions by public prosecutors, especially as the agency concerned, in this case, the Department of Justice, has its own procedural rules governing said service. A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in preliminary investigation, service can be made upon the party himself or through his counsel. It must be assumed that when the Justice Department crafted the said section, it was done with

knowledge of the pertinent rule in the Rules of Court and of jurisprudence interpreting it. The DOJ could have just adopted the rule on service provided for in the Rules of Court, but did not. Instead, it opted to word Section 2 of DOJ Order No. 223 in such a way as to leave no doubt that in preliminary investigations, service of resolutions of public prosecutors could be made upon either the party or his counsel. Moreover, the Constitution provides that "Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court."14 There is naught in the records to show that we have disapproved and nullified Section 2 of DOJ Order No. 223 and since its validity is not an issue in the instant case, we shall refrain from ruling upon its validity. We hold that there was valid service upon petitioner pursuant to Section 2 of DOJ Order No. 223. On the issue of whether mandamus will lie. In general, mandamus may be resorted to only where one's right is founded clearly in law and not when it is doubtful.15 The exception is to be found in criminal cases where mandamus is available to compel the performance by the public prosecutor of an ostensibly discretionary function, where by reason of grave abuse of discretion on his part, he willfully refuses to perform a duty mandated by law.16Thus, mandamus may issue to compel a prosecutor to file an information when he refused to do so in spite of theprima facie evidence of guilt.17 Petitioner takes the stance that it was grave abuse for discretion on the part of respondent Chief State Prosecutor to sustain the dismissal of I.S. No. 93-15886 on the grounds that: (1) Vic Ang Siong's obligation which gave rise to the bounced check had already been extinguished by partial payment and agreement to amicably settle balance, and (2) petitioner had no standing to file the criminal complaint since he was neither the payee nor holder of the bad check. Petitioner opines that neither ground justifies dismissal of his complaint. Petitioner's stand is unavailing. Respondent Chief State Prosecutor in refusing to order the filing of an information for violation of B.P. Blg. 22 against Vic Ang Siong did not act without or in excess of jurisdiction or with grave abuse of discretion. First, with respect to the agreement between Concord and Victor Ang Siong to amicably settle their difference, we find this resort to an alternative dispute settlement mechanism as not contrary to law, public policy, or public order. Efforts of parties to solve their

disputes outside of the courts are looked on with favor, in view of the clogged dockets of the judiciary. Second, it is not disputed in the instant case that Concord, a domestic corporation, was the payee of the bum check, not petitioner. Therefore, it is Concord, as payee of the bounced check, which is the injured party. Since petitioner was neither a payee nor a holder of the bad check, he had neither the personality to sue nor a cause of action against Vic Ang Siong. Under Section 36 of the Corporation Code18, read in relation to Section 23,19 it is clear that where a corporation is an injured party, its power to sue is lodged with its board of directors or turstees. 20 Note that petitioner failed to show any proof that he was authorized or deputized or granted specific powers by Concord's board of director to sue Victor And Siong for and on behalf of the firm. Clearly, petitioner as a minority stockholder and member of the board of directors had no such power or authority to sue on Concord's behalf. Nor can we uphold his act as a derivative suit. For a derivative suit to prosper, it is required that the minority stockholder suing for and on behalf of the corporation must allege in his complaint that he is suing on a derivative cause of action on behalf of the corporation and all other stockholders similarly situated who may wish to join him in the suit.21 There is no showing that petitioner has complied with the foregoing requisites. It is obvious that petitioner has not shown any clear legal right which would warrant the overturning of the decision of public respondents to dismiss the complaint against Vic Ang Siong. A public prosecutor, by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient evidence of guilt nor prima facie case has been presented by the petitioner.22 No reversible error may be attributed to the court a quo when it dismissed petitioner's special civil action for mandamus.1wphi1.nt WHEREFORE, the instant petition is DISMISSED for lack of merit. Costs against petitioner. SO ORDERED.

G.R. No. 134744

January 16, 2001

GIAN PAULO VILLAFLOR, petitioner, vs. DINDO VIVAR y GOZON, respondent. PANGANIBAN, J.: The absence of a preliminary investigation does not impair the validity of an information or render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information. Instead of dismissing the information, the court should hold the proceeding in abeyance and order the public prosecutor to conduct a preliminary investigation.1wphi1.nt The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the Orders issued by the Regional Trial Court (RTC) of Muntinlupa City (Branch 276) in Civil Case No. 97134.1 Dated January 20, 1998,2 the first Order granted the Motion to Quash the Informations and ordered the Dismissal of the two criminal cases. The second Order dated July 6, 1998, denied the Motion for Reconsideration. The Facts Culled from the records and the pleadings of the parties are the following undisputed facts. An Information3 for slight physical injuries, docketed as Criminal Case No. 23365, was filed against Respondent Dindo Vivar on February 7, 1997. The case from the alleged mauling of Petitioner Gian Paulo Villaflor by respondent around 1:00 a.m. on January 27, 1997 outside the Fat Tuesday Bar at the Ayala Alabang Town Center, Muntinlupa City. After the severe beating he took from respondent, petition again met respondent who told him, "Sa susunod gagamitin ko na itong baril ko"4 ("Next time, I will use my gun on you"). When the injuries sustained by petitioner turned out to be more serious than they had appeared at first, an Information5 for more serious physical injuries, docketed as Criminal Case No. 23787, was filed against respondent.6 The earlier charge of slight physical injuries was withdrawn. At the same time, another Information 7 for grave threats, docketed as Criminal Case No. 237288, was filed against respondent on March 17, 1997.

On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal Case No. 23787 (for serious physical injuries)9. Instead of filing a counter-affidavit as required by the trial court, he filed on April 21, 1997, a Motion to Quash the Information in Criminal Case No. 23787 (for grave threats). He contended that the latter should have absorbed the threat, having been made in connection with the charge of serious physical injuries. Thus, he concluded, Criminal Case No. 23728 should be dismissed, as the trial court did not acquire jurisdiction over it.10 In an Order dated April 28, 1997 in Criminal Case No. 23728, the Metropolitan Trial Court (MTC) denied the Motion to Quash, as follows: "For consideration is a motion to quash filed by accused counsel. Considering that jurisdiction is conferred by law and the case filed is grave threats which is within the jurisdiction of this Court and considering further that a motion to quash is a prohibited [pleading] under the rule on summary procedure, the motion to quash filed by the accused counsel is DENIED. WHEREFORE, the motion to quash filed by accused counsel is hereby DENIED and let the arraignment of the accused be set on June 25, 1997 at 2:00 0'clock in the afternoon."11 The Motion for Reconsideration filed by Respondent was denied by the MTC on June 17, 1997.12 Thus, he was duly arraigned in Criminal Case No. 23728 (for grave threats), and he pleaded not guilty. On July 18, 1997, respondent filed a Petition for Certiorari with the RTC of Muntinlupa City. This was docketed as Civil Case No. 97-134. On July 20, 1998, after the parties submitted their respective Memoranda, the RTC issued the assailed Order, which reads as follows: "The Judicial Officer appears to have acted with grave abuse of discretion amounting to lack of jurisdiction in declaring and denying the MOTION TO QUASH as a prohibitive motion. The same should have been treated and [should have] proceeded under the regular rules of procedure. The MOTION TO QUASH THE INFORMATION filed without preliminary investigation is therefore granted and these cases should have been dismissed. Let this Petition be turned to the Metropolitan Trial Court, Branch 80-Muntinlupa City for appropriate action."13 The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for Reconsideration, as follows:

"Submitted for resolution is the unopposed Reconsideration filed by Private Respondent.

Motion

for

The Court agrees with the contention of private respondent that the Motion quash filed by petitioner in the interior court is a prohibited pleading under Rules on Summary Procedure so that its denial is tenable. However, it would appear that the criminal charges were filed without the preliminary investigation having been conducted by the Prosecutor's Office. Although preliminary investigation in cases triable by interior courts is not a matter of right, the provision of Sec. 51 par 3(a) of Republic Act 7926 entitled "An Act Converting the Municipality of Muntinlupa Into Highly Urbanized City To Be Known as the City of Muntinlupa" provides that the city prosecutor shall conduct preliminary investigations of ALL crimes, even violations of city ordinances. This Act amended the Rules on Criminal Procedure. Since this procedure was not taken against accused, the Order dated January 20, 1998 stands. The Motion for Reconsideration is therefore denied." Hence, this Petitioner.15 The Issues Petitioner submitted the following issues for our consideration:16 "I Can the court motu propio order the dismissal of two (2) criminal cases for serious physical injuries and grave threats on the ground that the public prosecutor failed to conduct a preliminary investigation? "II Should the failure of the public prosecutor to conduct a preliminary investigation be considered a ground to quash the criminal Informations for serious physical injuries and grave threats filed against the accused-respondent? "III Should respondent's entry of plea in the [grave] threats case and posting of cash bond waiver of this right, if any, to preliminary investigation?" The Court Ruling The Petitioner is meritorious. First Issue: Lack of Preliminary Investigation Preliminary investigation is "an inquiry or proceeding to determine whether sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial."17 A component part of due process in criminal justice, preliminary investigation is a statutory
14

and substantive right accorded to the accused before trial. To deny their claim to a preliminary investigation would be to deprive them of the full measure of their right to due process.18 However, the absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective.19 Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information. 20 The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation. Hence, the RTC in this case erred when it dismissed the two criminal cases for serious physical injuries (Criminal case No. 23787) and grave threats (Criminal Case No. 23728) on the ground that the public prosecutor had failed to conduct a preliminary investigation. Furthermore, we do not agree that a preliminary investigation was not conducted. In fact, the assistant city prosecutor of Muntinlupa City made a preliminary investigation for slight physical injuries. The said Information was, however, amended when petitioner's injuries turned out to be more serious and did not heal within the period specified in the Revised Penal Code.21 We believe that a new preliminary investigation cannot be demanded by respondent. This is because the charge made by the public prosecutor was only a formal amendment.22 The filing of the Amended Information, without a new preliminary investigation, did not violate the right of respondent to be protected from a hasty, malicious and oppressive prosecution; an open and public accusation of a crime; or from the trouble, the expenses and the anxiety of a public trial. The Amended Information could not have come as a surprise to him for the simple and obvious reason that it charged essentially the same offense as that under the original Information. Moreover, if the original charge was related to the amended one, such that an inquiry would elicit substantially the same facts, then a new preliminary investigation was not necessary.23 Second Issue: Motion to Quash As previously stated, the absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information.24

Section 3, Rule 117 of the Revised Rules of Criminal Procedure provides the grounds on which an accused can move to quash the complaint or information. These are: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged (c) the court trying the case has no jurisdiction over the person of the accused; (d) the officer who filed the information had no authority to do so; (e) the information does not conform substantially to the prescribed form; (f) more than one offense is charged, except in those cases in which existing laws prescribe a single punishment for various offense; (g) the criminal action or liability has been extinguished; (h) information contains averments which, if true, would constitute a legal excuse or justification; and (I) the accused has been previously convicted or is in jeopardy of being convicted or acquitted of the offense charged.25 Nowhere in the above-mentioned section is there any mention of a lack of a preliminary investigation as a ground for a motion to quash. Moreover, such motion is a prohibited pleading under Section 19 of the Revised Rules on Summary Procedure. In the present case, the RTC therefore erred in granting herein respondent's Motion to Quash. Furthermore, we stress that the failure of the accused to assert any ground for a motion to quash before arraignment, either because he had not filed the motion or had failed to allege the grounds therefor, shall be deemed a waiver of such grounds. 26 In this case, he waived his right to file such motion when he pleaded not guilty to the charge of grave threats.1wphi1.nt In view of the foregoing, we find no more need to resolve the other points raised by petitioner. WHEREFORE, the petition is GRANTED, and the assailed Orders of the Regional Trial Court of Muntinlupa City are REVERSED. No costs. SO ORDERED. Melo, Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez JJ., concur.

G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274,respondents. PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for

temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his copassenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb

in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27,

1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us.

In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state

prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or crossexamine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath 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 . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." house On how Webb, Lejano, and Ventura entered the Vizconde First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a coconspirator, it is well to note that confessions of a coconspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a

common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony

deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his

shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke

up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all

these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled:30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the

allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the

issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an

information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determinepersonally the probability, not the certainty of

guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution

was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twentyseven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall

continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The noninclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an

accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose

who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a

preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a nonbailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case ofMooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well

put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided

men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is

composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED.

G.R. No. 159747

April 13, 2004

GREGORIO B. HONASAN II, petitioner, vs. THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents. AUSTRIA-MARTINEZ, J.: On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part: 2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military personnel who occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II 3. 4. The said crime was committed as follows: 4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of this complaint. 4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military rebels occupying Oakwood, made a public statement aired on nation television, stating their withdrawal of support to the chain of command of the AFP and the Government of President Gloria Macapagal Arroyo and they are willing to risk their lives in order to achieve the National Recovery Agenda of Sen. Honasan, which they believe is the only program that would solve the ills of society. . . . (Emphasis supplied). The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit:

1. That I am a member of the Communication Electronics and Information Systems Services, Armed Forces of the Philippines with the rank of Major; 2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person (VIP) Protection Course sometime in last week of March 2003; 3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but never had the time to read it; 4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP would be discussed and that there would be a special guest; 5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a house located somewhere in San Juan, Metro Manila; 6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of issues and concerns within the framework of NRP and we were likewise served with dinner; 7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived together with another fellow who was later introduced as Capt. Turingan; 8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan; 9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution, the judiciary, the executive branch and the like; 10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At this point, I raised the argument that it is my belief that reforms will be achieved through the democratic processes and not thru force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through the democratic processes because the people who are in power will not give up their positions as they have their vested interests to protect." After a few more

exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then asked whether all those present numbering 30 people, more or less, are really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided not to pursue further questions; 11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta will run the new government. He further said that some of us will resign from the military service and occupy civilian positions in the new government. He also said that there is urgency that we implement this plan and that we would be notified of the next activities. 12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood compact". He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He then took a knife and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape. He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else followed; 13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I followed what Senator HONASAN did; 14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that " kaya nating pumatay ng kasamahan"; 15. That after the rites, the meeting was adjourned and we left the place; 16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their group had already deeply established their network inside the intelligence community;

17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed and told me that when the group arrives at the Malacaang Compound for "D-DAY", my task is to switch off the telephone PABX that serves the Malacaang complex. I told him that I could not do it. No further conversation ensued and he left; 18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and some others who were present during the June 4 th meeting that I attended, having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner which was displayed and on which we pressed our wound to leave the imprint of the letter "I"; 19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied) The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary investigation. On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting that since the imputed acts were committed in relation to his public office, it is the Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that should the charge be filed in court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case considering that he belongs to the group of public officials with Salary Grade 31; and praying that the proceedings be suspended until final resolution of his motion. Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply. On September 10, 2003, the DOJ Panel issued an Order, to wit:

On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the said motion. The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of this case. In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter-affidavits and controverting evidence on or before September 23, 2003.1 Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation. Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano submitted their respective comments. The Court heard the parties in oral arguments on the following issues: 1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation over the charge of coup d'etat against petitioner; 2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and 3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation. After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are: 1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials, including petitioner.

2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95-001 to conduct the preliminary investigation involving Honasan. 3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ Joint Circular No. 95-001 is ultra vires for being violative of the Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and inoperative due to lack of publication, hence null and void. 4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman which has the jurisdiction to conduct the preliminary investigation. 5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since the issue involved therein is determinative of the validity of the preliminary investigation. 6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and factual bases. The arguments of respondent DOJ Panel are: 1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513. 2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and the acts complained of. 3. The challenge against the constitutionality of the OMBDOJ Joint Circular, as a ground to question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from any provision of the joint circular which embodies the guidelines governing the authority of both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on offenses charged in relation to public office. 4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and

purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is required solely for the purpose of determining whether there is a sufficient ground to engender a well founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. The DOJ panel did not outrightly reject the motion of petitioner but ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or rule or any norm of discretion. The arguments of respondent Ombudsman are: 1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction of the Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249. 2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving public officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority with the OMB to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure. 3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en masse but must be given in reference to specific cases has no factual or legal basis. There is no rule or law which requires the Ombudsman to write out individualized authorities to deputize prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to request assistance from any government agency necessary to discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770.

4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or penalty. It does not regulate the conduct of persons or the public, in general. The Court finds the petition without merit. The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides: Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following powers and functions: (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; (Emphasis supplied) and Section 1 of P.D. 1275, effective April 11, 1978, to wit: SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. (Emphasis supplied) Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power

to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. and Mabanag vs. Lopez Vito.2 The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz: SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the Constitution provides: (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof provides: Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or

employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of the government, the investigation of such cases. . (Emphasis supplied) Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit: A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative proceedings, or both. For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as distinguished from the authority to prosecute, such cases. The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors. The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a

concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of the government in the prosecution of cases cognizable by regular courts. (Emphasis supplied) It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the authority of the Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of the government, the investigation of such cases. That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled in several decisions of the Court. In Cojuangco, Jr. vs. Presidential Commission on Government, decided in 1990, the Court expressly declared: Good

In other words the provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take over at any stage of such investigation in the exercise of his primary jurisdiction.4 (Emphasis supplied) A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official, elucidating thus: As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public official x x x when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]). The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from, the performance of official duty. Since the law does not distinguish, neither should we. The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or

A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary investigation vested on the Ombudsman is exclusive.3 Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held in said case: Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the investigation of such cases. The authority of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government. Such investigatory agencies referred to include the PCGG and the provincial and city prosecutors and their assistants, the state prosecutors and the judges of the municipal trial courts and municipal circuit trial court.

omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office" (Sec. 16, R.A. 6770). ......... Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to investigate erring public officials would be wasted if its jurisdiction were confined to the investigation of minor and less grave offenses arising from, or related to, the duties of public office, but would exclude those grave and terrible crimes that spring from abuses of official powers and prerogatives, for it is the investigation of the latter where the need for an independent, fearless, and honest investigative body, like the Ombudsman, is greatest.6 At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and theDeloso case. However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated on the nature of the powers of the Ombudsman to investigate. In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission of any public official, the authority of the Ombudsman to investigate is merely a primary and not an exclusive authority, thus: The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to investigate and prosecute any illegal act or omission of any public official. However as we held only two years ago in the case of Aguinaldo vs. Domagas,8 this authority "is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged." Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal acts or omissions

on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged, i.e., the crime of sedition. Thus, the noninvolvement of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or amended information. In fact, other investigatory agencies of the government such as the Department of Justice in connection with the charge of sedition, and the Presidential Commission on Good Government, in ill gotten wealth cases, may conduct the investigation.9 (Emphasis supplied) In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and not the provincial fiscal who has the authority to conduct a preliminary investigation over his case for alleged Murder, the Court held: The Deloso case has already been re-examined in two cases, namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the need for tracing the history of the legislation relative to the jurisdiction of Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former. In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in a state of flux. These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861. The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows: "SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows:

'SEC. 4. Jurisdiction. The Sandiganbayan shall exercise: '(a) Exclusive original jurisdiction in all cases involving: ... (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporation, whether simple or complexed with other crimes, where the penalty prescribed by law is higher thatprision correccional or imprisonment for six (6) years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine ofP6,000 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court." A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction, namely: the offense committed by the public officer must be in relation to his office and the penalty prescribed be higher then prision correccional or imprisonment for six (6) years, or a fine of P6,000.00.11 Applying the law to the case at bench, we find that although the second requirement has been met, the first requirement is wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the crime committed by public officers or employees must be "in relation to their office" if it is to fall within the jurisdiction of the Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree No. 1861 as a requirement before the Ombudsman can acquire primary jurisdiction on its power to investigate. It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989 because, as earlier mentioned, the Ombudsman's power to investigate is dependent on the cases

cognizable by the Sandiganbayan. Statutes are in pari materia when they relate to the same person or thing or to the same class of persons or things, or object, or cover the same specific or particular subject matter. It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system. The rule is expressed in the maxim, "interpretare et concordare legibus est optimus interpretandi," or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence. Thus, in the application and interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into consideration. It must be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the Ombudsman Act of 1989 are deemed in accord with existing statute, specifically, Pres. Decree No. 1861.12 (Emphasis supplied) R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides that for other offenses, aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the Sandiganbayan, they must have been committed by public officers or employees in relation to their office. In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases. In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers

involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage. Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit: OMB-DOJ JOINT CIRCULAR NO. 95-001 Series of 1995 TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE OMBUDSMAN ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF JUSTICE. SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION OF RESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS. x------------------------------------------------------------------------------------------------------x In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion centered around the latest pronouncement of the supreme court on the extent to which the ombudsman may call upon the government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "an act to strengthen the functional and structural organization of the sandiganbayan, amending for the purpose presidential decree no. 1606, as amended" and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by public officers and employees. Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the OFFICE

OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in the filing of complaints against public officers and employees, the conduct of preliminary investigations, the preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors and their assistants as deputized prosecutors of the ombudsman. Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees: 1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman. 2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city prosecutor, which shall rule thereon with finality. 3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority. 4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their respective offices against public officers and employees. Manila, Philippines, October 5, 1995. (signed) (signed)

TEOFISTO T. GUINGONA, JR. Secretary Department of Justice

ANIANO A. DESIERTO Ombudsman Office of the Ombudsman

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 another 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. (Emphasis supplied) confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman or his deputy. Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the Office of the Ombudsman has

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement between the Ombudsman and the DOJ. Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1, 2000, to wit: SEC. 2. Officers investigationsauthorized to conduct preliminary

The following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. SEC. 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)

deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed against him. We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on charges filed against public officers and employees. To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation. Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not plausible. We agree with and adopt the Ombudsman's dissertation on the matter, to wit: Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has to be published. As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provision, a law, regulation or circular must first be

published and the people officially and specifically informed of said contents and its penalties: said precedent, to date, has not yet been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal provision or prescribe a mandatory act or prohibit any, under pain or penalty. What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that: Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (at page 454. emphasis supplied) OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95001 DOES NOT regulate the conduct of persons or the public, in general. Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001 has to be published.14 Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate the charge of coup d'etat against him. The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the present petition so as not to pre-empt the result of the investigation being conducted by the DOJ Panel as to the questions whether or not probable cause exists to warrant the filing of the information against the petitioner; and to which court should the information be filed considering the presence of other respondents in the subject complaint.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED.

[G.R. No. 143802. November 16, 2001] REYNOLAN T. SALES, petitioner, vs. SANDIGANBAYAN (4th Division), OMBUDSMAN, PEOPLE OF THE PHILIPPINES and THELMA BENEMERITO,respondents. DECISION YNARES-SANTIAGO, J.: This Court is tasked to resolve the issue of whether or not the proper procedure was followed and whether petitioners constitutional rights were safeguarded during the preliminary investigation conducted before the filing of an Information for Murder against him and the issuance of a warrant for his arrest by respondent Sandiganbayan. Petitioner asserts that the Information was hastily filed and the warrant for his arrest was improper because of an incomplete preliminary investigation. Respondents say otherwise. The pertinent factual antecedents are matters of record or are otherwise uncontroverted. On August 2, 1999, petitioner, the incumbent town mayor of Pagudpud, Ilocos Norte, fatally shot the former mayor and his political rival, Atty. Rafael Benemerito, in an alleged shootout in Barangay Caparispisan of said municipality after a heated altercation between them. After the shooting incident, petitioner surrendered and placed himself under the custody of the municipal police then asked that he be brought to the Provincial PNP Headquarters in Laoag City. The next day, August 3, 1999, Police Chief Inspector Crispin Agno and private respondent Thelma Benemerito, wife of the victim, filed a criminal complaint for Murder[1] against petitioner at the Municipal Circuit Trial Court of Bangui, Ilocos Norte, Branch 127, presided by Judge Melvin U. Calvan. Judge Calvan then conducted a preliminary examination of the witnesses, in accordance with Section 6 (b), Rule 112 of the Rules on Criminal Procedure, found the existence of probable cause, and thereafter issued an order dated August 3, 1999 for the issuance of a warrant for the arrest of petitioner with no bail recommended.[2] By virtue of the warrant of arrest, petitioner was transferred on August 4, 1999 from the Provincial PNP Headquarters to the Provincial Jail. On August 5, 1999, Judge Calvan, after conducting a preliminary investigation in accordance with Sec. 6 (b) of Rule 112

of the Rules on Criminal Procedure, issued a resolution forwarding the records of the case to the Office of the Provincial Prosecutor of Ilocos Norte for appropriate action.[3] In addition to the records transmitted by Judge Calvan, there was also submitted to the Provincial Prosecutor of Ilocos Norte an NBI Parallel Investigation Report dated August 13, 1999, pursuant to the request for Investigative Assistance made by Dra. Thelma Lasmarias Benemerito, wife of the victim,[4] with several annexed affidavits, sworn statements and documents. Subsequently, on August 19, 1999, petitioner received a subpoena dated August 18, 1999 from the Provincial Prosecutor of Ilocos Norte directing him to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents within ten (10) days from receipt thereof.[5] This petitioner did the following day, August 20, 1999. While the foregoing proceedings were ongoing, petitioner filed a petition for habeas corpus with the Court of Appeals docketed as CA-G.R. SP No 54416, alleging that: 1.] the order and warrant of arrest for which petitioner was detained is null and void for being issued by respondent judge who was disqualified by law from acting on the case by reason of his affinity to private respondent Thelma Benemerito; and 2.] the preliminary examination by respondent judge was so illegally and irregularly conducted as to oust the said judge of jurisdiction over the case. In a Decision dated November 18, 1999, the appellate court granted the petition for habeas corpus and ordered the release of petitioner from detention subject to the outcome of the proper preliminary investigation. In granting the petition, the Court of Appeals reasoned, inter alia, that: I It is uncontroverted that respondent Judge is a relative within the third civil degree of affinity of private respondent Thelma Benemerito. Respondent judge is married to Susana BenemeritoCalvan, whose father is a brother of the victim. Section 1, Rule 137 of the Rules of Court disqualifies a judge from sitting in a case in which he is related to either party within the sixth degree of consanguinity or affinity. This disqualification is mandatory, unlike an inhibition which is discretionary. It extends to all proceedings, not just to the trial as erroneously contended by respondent judge. Even Canon 3.12 of the Code of Judicial Conduct mandates that a judge shall take no part in a proceeding where the judges impartiality might be reasonably questioned, as when he is related by consanguinity or affinity to a party litigant within the
[6]

sixth degree. Due process likewise requires hearing before an impartial and disinterested tribunal so that no judge shall preside in a case in which he is not wholly free, disinterested, impartial and independent.[7] xxx xxx II The preliminary examination conducted by respondent Judge does not accord with the prevailing rules. He did it under the old rules, where the preliminary investigation by the municipal judge has two stages: (1) the preliminary examination stage during which the investigating judge determines whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof, so that a warrant of arrest may be issued and the accused held for trial; and (2) the preliminary investigation proper where the complaint or information is read to the accused after his arrest and he is informed of the substance of the evidence adduced against him, after which he is allowed to present evidence in his favor if he so desires. Presidential Decree 911 (further amending Sec. 1, R.A. 5180, as amended by P.D. 77) upon which the present rule is based, removed the preliminary examination stage and integrated it into the preliminary investigation proper. Now the proceedings consists of only one stage.[8] Respondent Judge did not conduct the requisite investigation prior to issuance of the arrest warrant. The Rules require an examination in writing under oath in the form of searching questions and answers.[9] The statements of witnesses were not sworn before him but before the Provincial Prosecutor. The purported transcript of stenographic notes do not bear the signature of the stenographer. Moreover, he did not complete the preliminary investigation. He claimed to have examined only the witnesses of the complainant. He issued a Resolution and forwarded the records to the Provincial Prosecutor without giving the accused (petitioner) an opportunity to submit counter-affidavits and supporting documents.
[10]

xxx

While it is true that the usual remedy to an irregular preliminary investigation is to ask for a new preliminary investigation, such normal remedy would not be adequate to free petitioner from the warrant of arrest which stemmed from that irregular investigation. The Provincial Prosecution has no power to recall the warrant of arrest.

Meanwhile, after receipt of the records of the case from Judge Calvan as well as petitioner-accuseds counter-affidavits, the Ilocos Norte Provincial Prosecutor, instead of conducting a preliminary investigation of his own, merely forwarded the said records to the Ombudsman for the latter to conduct the same. It appears that petitioner was only apprised of the foregoing inaction on the case by the Provincial Prosecutor when he received on September 10, 1999 a Memorandum dated September 2, 1999, [11] filed by private respondents counsel, requesting that the case, I.S. No. 99-548, be remanded to Office of the Ombudsman for preliminary investigation and, thereafter, for the prosecution of the appropriate indictments before the Sandiganbayan.[12] On January 27, 2000, petitioner received a notice from the Ombudsman directing him to file his counter-affidavits. Considering that petitioner had already submitted his counter-affidavits to the Ilocos Norte Provincial Prosecutor as far back as August 20, 1999, he found the directive superfluous and did not act on it. On May 25, 2000, Graft Investigation Officer II Cynthia V. Vivar issued a Resolution[13] recommending the filing of an Information for Murder against petitioner and four others[14] before the Sandiganbayan. The recommendation was approved by the Ombudsman on June 16, 2000.[15] It appears that petitioner belatedly received a copy of the foregoing Resolution of the graft investigation officer only on June 21, 2000, and because he was thus effectively prevented from seeking a reconsideration thereof, he then filed a Motion To Defer Issuance Of Warrant Of Arrest pending determination of probable cause dated June 22, 2000[16]. The motion was denied by Sandiganbayans Fourth Division in the challenged Resolution of July 13, 2000.[17] Owing to the urgency of the matter, petitioner opted to directly resort to this recourse eschewing the filing of a motion for reconsideration on the grounds that (A) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN IT RULED HIM TO HAVE NO STANDING TO OBJECT TO THE ISSUANCE OF A WARRANT FOR HIS ARREST SINCE HE HAS NOT SUBMITTED TO ITS CUSTODY. (B) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN IT ISSUED A WARRANT FOR HIS ARREST ON THE BASIS OF AN INCOMPLETE PRELIMINARY INVESTIGATION. (C) THE OMBUDSMAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS WHEN IT HURRIEDLY FILED AN INFORMATION FOR

MURDER AGAINST HIM WITHOUT SCRUTINIZING, OR EVEN ONLY READING, ALL THE EVIDENCE BEFORE HIM AND WITHOUT CALLING FOR PRODUCTION OF THE CRITICAL PHYSICAL EVIDENCE. (D) NOT ONLY DID THE SANDIGANBAYAN GRAVELY ABUSE ITS DISCRETION WHEN IT RELIED ON AN INCOMPLETE PRELIMINARY INVESTIGATION CONDUCTED BY THE OMBUDSMAN BUT IT FURTHER AGGRAVATED THIS GRAVE ABUSE WHEN IT OMITTED ALTOGETHER TO CONDUCT ITS OWN INDEPENDENT REVIEW OF THE EVIDENCE OF PROBABLE CAUSE. The primordial question to be resolved in this controversy whether or not the Ombudsman followed the proper procedure conducting a preliminary investigation and, corollarily, whether not petitioner was afforded an opportunity to be heard and submit controverting evidence.
[18]

is in or to

As this Court pointed out in Duterte v. Sandiganbayan, [t]he purpose of a preliminary investigation or a previous inquiry of some kind, before an accused person is placed on trial, is to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial. [19] It is also intended to protect the state from having to conduct useless and expensive trials.[20] While the right is statutory rather than constitutional in its fundament, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the accuseds claim to a preliminary investigation would be to deprive him of the full measure of his right to due process.[21] Although a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has been called a judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when there is an opportunity to be heard and for the production of and weighing of evidence, and a decision is rendered thereon.[22]

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary investigation is no less than a municipal judge or even a regional trial court judge. While the investigating officer, strictly speaking, is not a judge by the nature of his functions, he is and must be considered to be a quasi-judicial officer because a preliminary investigation is considered a judicial proceeding.[23] A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage.[24] Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence may be considered. While even raw information may justify the initiation of an investigation, the stage of preliminary investigation can be held only after sufficient evidence has been gathered and evaluated warranting the eventual prosecution of the case in court.[25] In other words . . . it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantee of freedom and fair play which are the birthrights of all who live in our country. It is therefore imperative upon the fiscal or the judge, as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason.[26] Measured vis--vis the foregoing legal yardsticks, we hold that the proper procedure in the conduct of the preliminary investigation was not followed, for the following reasons: First, the records show that the supposed preliminary investigation was conducted in installments by at least three (3) different investigating officers, none of whom completed the preliminary investigation. There was not one continuous proceeding but rather a case of passing the buck, so to speak, the last one being the Ombudsman hurriedly throwing the buck to the Sandiganbayan. This practice of passing the buck by the Ombudsman to the Sandiganbayan was met with disapproval

in Venus v. Desierto[27] where this Court speaking through then Associate Justice, now Chief Justice Hilario G. Davide, Jr., trenchantly said that: Upon a subsequent re-assessment of the evidence as a consequence of petitioners motion for reconsideration, another Special Prosecution Officer xxx found that petitioner had not violated Sec. 3 (e) of R.A. No. 3019, as amended, he thus, recommended dismissal of the case for want of probable cause and the filing of the corresponding manifestation to inform the Sandiganbayan of the result of the motion for reconsideration. In this instance the Special Prosecutor himself concurred with the finding. However, the Ombudsman disapproved the recommendation as he found that probable cause existed but opted to allow the court to find absence of bad faith. This marginal note of the Ombudsman simply meant that he believed that petitioner was in bad faith. However, good faith is always presumed and the Chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith which, according to the Commission, springs from the foundation of good conscience. Therefore, he who charges another with bad faith must prove it. In this sense, the Ombudsman should have first determined the facts indicative of bad faith. On the basis alone of the finding and conclusion of Special Prosecution Officer III Victor Pascual, with which the Special Prosecutor concurred, there was no showing of bad faith on the part of petitioner. It was, therefore, error for the Ombudsman to pass the buck, so to speak, to the Sandiganbayan to find absence of bad faith. xxx xxx x x x.[28] Second, the charge against herein petitioner is Murder, a nonbailable offense. The gravity of the offense alone, not to mention the fact that the principal accused is an incumbent mayor whose imprisonment during the pendency of the case would deprive his constituents of their duly-elected municipal executive, should have merited a deeper and more thorough preliminary investigation. The Ombudsman, however, did nothing of the sort and instead swallowed hook, line and sinker the resolution and recommendation of Graft Investigation Officer II Cynthia V. Vivar, among them the finding that, aside from the averment of respondent that the victim fired at him and he was only forced to fire back, no other evidence was adduced to indicate that such was what happened.[29] There are, however, four affidavits on record[30] which state in categorical terms that it was the victim who first fired at petitioner

with his Armalite rifle and that petitioner merely returned fire. An Armalite rifle and empty shells were recovered from the scene of the incident by the PNP and impounded by it. According to the Physical Science Report No. C-147A-99,[31] some of the shells correspond to the Armalite rifle, thereby indicating that the firearm was fired. The Ombudsman, however, neither called for the production of the firearm and the empty shells, nor did he ask for the production of the ballistic and laboratory examinations of the bloodstains on the Armalite rifle despite the statement by the Provincial Fiscal of Ilocos Norte that these pieces of evidence were all available.[32] There are, furthermore, other dubious circumstances which should have prompted the Ombudsman to take a second, deeper look instead of adopting in toto the recommendation of GIO II Vivar. Among these is the matter of the two (2) different autopsies on the cadaver of the victim, one indicating that the victim sustained two (2) wounds only and the other showing that the victim had three (3) wounds. The significance of this fact was not appreciated by the Ombudsman who likewise glossed over the adamant refusal of the private respondent to subject the cadaver of the victim to a paraffin test, despite the claims of the accuseds witnesses that the victim fired the Armalite rifle. Given the foregoing circumstances, the Ombudsman for all practical purposes did an even worse job than Judge Calvan for, by adopting in its entirety the findings of the investigating officer despite its obvious flaws, he actually did nothing at all and, in effect, threw everything to the Sandiganbayan for evaluation. This practice, as earlier stated, was not condoned in Venus v. Desierto, supra. Nor will it be in this case. Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the administration of justice. It should be realized, however, that when a man is haled to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court. Anything less would be a dereliction of duty.[33] Third, a person under preliminary investigation by the Ombudsman is entitled to file a motion for reconsideration of the adverse resolution. This right is provided for in the very Rules of Procedure of the Ombudsman,[34] which states: SEC. 7. Motion for Reconsideration.

a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the Office of the Ombudsman or the Deputy Ombudsman as the case may be. b) No motion for reconsideration or reinvestigation shall be entertained after the information shall have been filed in court, except upon order of the court wherein the case was filed. (Emphasis supplied). The filing of a motion for reconsideration is an integral part of the preliminary investigation proper. There is no dispute that the Information was filed without first affording petitioner-accused his right to file a motion for reconsideration. The denial thereof is tantamount to a denial of the right itself to a preliminary investigation. This fact alone already renders preliminary investigation conducted in this case incomplete. The inevitable conclusion is that the petitioner was not only effectively denied the opportunity to file a motion for reconsideration of the Ombudsmans final resolution but also deprived of his right to a full preliminary investigation preparatory to the filing of the information against him.[35] As stated earlier, it appears that petitioner belatedly received a copy of the May 25, 2000 Resolution of Graft Investigation Officer II Cynthia V. Vivar only on June 21, 2000. Because he was thus effectively precluded from seeking a reconsideration thereof, he then filed a Motion To Defer Issuance Of Warrant Of Arrest pending determination of probable cause.[36] The Sandiganbayan denied the motion in its challenged Resolution of July 13, 2000,[37] and forthwith ordered the issuance of the warrant of arrest against petitioner. Suffice it to state in this regard that such a deprivation of the right to a full preliminary investigation preparatory to the filing of the information warrants the remand of the case to the Ombudsman for the completion thereof.[38] Fourth, it was patent error for the Sandiganbayan to have relied purely on the Ombudsmans certification of probable cause given the prevailing facts of this case much more so in the face of the latters flawed report and one-sided factual findings. In the order of procedure for criminal cases, the task of determining probable cause for purposes of issuing a warrant of arrest is a responsibility which is exclusively reserved by the Constitution to judges.[39] People v. Inting[40] clearly delineated the features of this constitutional mandate, viz: 1.] The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes

this determination; 2.] The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making the determination of probable cause. It is the report, the affidavits, the transcripts of stenographic notes, if any, and all other supporting documents behind the prosecutors certification which are material in assisting the judge in his determination of probable cause; and 3.] Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. Even if the two inquiries be made in one and the same proceeding, there should be no confusion about their objectives. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the prosecutor. Stated differently, while the task of conducting a preliminary investigation is assigned either to an inferior court magistrate or to a prosecutor,[41] only a judge may issue a warrant of arrest. When the preliminary investigation is conducted by an investigating prosecutor, in this case the Ombudsman, [42] the determination of probable cause by the investigating prosecutor cannot serve as the sole basis for the issuance by the court of a warrant of arrest. This is because the court with whom the information is filed is tasked to make its own independent determination of probable cause for the issuance of the warrant of arrest. Indeed . . . the Judge cannot ignore the clear words of the 1987 Constitution which requires . . . probable cause to be personally determined by the judge . . . not by any other officer or person. xxx xxx xxx The extent of the Judges personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judges examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be brief or as detailed as the circumstances of each case may require. To be sure, the Judge must go beyond the Prosecutors certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the

courts probing questions when the circumstances so require. xxx xxx xxx We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judges sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutors certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of probable cause.[43] All told, the Court cannot accept the Sandiganbayans assertions of having found probable cause on its own, considering the Ombudsmans defective report and findings, which merely relied on the testimonies of the witnesses for the prosecution and disregarded the evidence for the defense.[44] In Roberts v. CA, [45] the trial judge was chastised by the Court for issuing a warrant of arrest without even reviewing the records of the preliminary investigation which were then still with the Department of Justice. In the case at bar, it cannot be said that the Sandiganbayan reviewed all the records forwarded to it by the Ombudsman considering the fact that the preliminary investigation which was incomplete escaped its notice. What the Sandiganbayan should have done, faced with such a slew of conflicting evidence from the contending parties, was to take careful note of the contradictions in the testimonies of the complainants witnesses as well as the improbabilities in the prosecution evidence.[46] Certainly . . . probable cause may not be established simply by showing that a trial judge subjectively believes that he has good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional protection would be demeaned and the people would be secure in their persons, houses, papers and effects only in the fallible discretion of the judge.[47]On the contrary, the probable cause test is an objective one, for in order that there be probable cause the facts and circumstances must be such as would warrant a belief by a reasonably discreet and prudent man that the accused is guilty of the crime which has just been committed.[48] This, as we said is the standard. xxx

xxx

xxx

xxx

The sovereign power has the inherent right to protect itself and its people from the vicious acts which endanger the proper administration of justice; hence the State has every right to prosecute and punish violators of the law. This is essential for its self-preservation, nay its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too a high a price to pay for reckless and impulsive prosecution. x x x The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights.[49] In this case, the undue haste in filing of the information against petitioner cannot be ignored. From the gathering of evidence until the termination of the preliminary investigation, it appears that the state prosecutors were overly-eager to file the case and to secure a warrant of arrest of petitioner without bail and his consequent detention. There can be no gainsaying the fact that the task of ridding society of criminals and misfits and sending them to jail in the hope that they will in the future reform and be productive members of the community rests both on the judiciousness of judges and the prudence of the prosecutors. There is however, a standard in the determination of the existence of probable cause. The determination has not measured up to that standard this case. WHEREFORE, in view of all the foregoing, judgment is hereby rendered: 1.] SETTING ASIDE the Resolutions of the Sandiganbayan dated July 13, 2000 and the Resolution of Graft Investigation Officer II Cynthia V. Vivar dated May 25, 2000 in Criminal Case No. 26115;

2.] Ordering the Sandiganbayan to QUASH the warrant of arrest it issued against petitioner; 3.] REMANDING the case to the Ombudsman for completion of the preliminary investigation. SO ORDERED.

G.R. No. 147932

January 25, 2006

LAILA G. DE OCAMPO, Petitioner, vs. THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B. DACARRA, and ERLINDA P. ORAYAN,Respondents. DECISION CARPIO, J.: The Case This petition for certiorari1 assails the Resolutions dated 15 September 2000 and 19 April 2001 of the Secretary of the Department of Justice ("DOJ Secretary") in I.C. No. 99-6254.2 The DOJ Secretary3 denied Laila G. De Ocampos ("petitioner") petition for review of the investigating prosecutors finding of probable cause against her for homicide4 in relation to Section 10(a), Article VI of Republic Act No. 7610 ("RA 7610")5 and for violation of the same provision of RA 7610. The DOJ Secretary6 also denied petitioners motion for reconsideration. The Facts The present case arose from a sworn statement of respondent Magdalena B. Dacarra ("Magdalena") executed before the Womens Desk of the CPD Police Station in Batasan Hills, Quezon City on 10 December 1999. Magdalena stated that on 4 December 1999, her nine-year-old son Ronald complained of dizziness upon arriving home at about six in the evening. Ronald then vomited, prompting Magdalena to ask what happened. Ronald replied that petitioner, who was Ronalds teacher, banged his head against that of his classmate Lorendo Orayan ("Lorendo"). Magdalena inspected Ronalds head and saw a woundless contusion. Due to Ronalds continued vomiting, Magdalena brought him to a quack doctor (arbularyo) on 5 December 1999. The following morning, Magdalena brought Ronald to the East Avenue Medical Center where he underwent an x-ray. The attending physician informed Magdalena that Ronalds head had a fracture. Blood oozed out of Ronalds nose before he died on 9 December 1999. Lorendo also executed a sworn statement narrating how petitioner banged his head against Ronalds. During the inquest proceedings on 14 December 1999, Assistant Quezon City Prosecutor Maria Lelibet Sampaga ("inquest prosecutor") ruled as follows: Evidence warrants the release of the respondent for further investigation of the charges against her. The case is not proper for

inquest as the incident complained of happened on December 4, 1999. Further, we find the evidence insufficient to support the charge for homicide against the respondent. There is no concrete evidence to show proof that the alleged banging of the heads of the two minor victims could be the actual and proximate cause of the death of minor Ronald Dacarra y Baluton. Besides, the police report submitted by the respondent in this case states that said victim bears stitches or sutures on the head due to a vehicular accident. There is no certainty, therefore, that respondents alleged wrongdoing contributed or caused the death of said victim.7 Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna F. Catris-Chua Cheng ("investigating prosecutor") for preliminary investigation. She scheduled the first hearing on 6 January 2000. Respondent Erlinda P. Orayan ("Erlinda"), Lorendos mother, attended the hearing of 6 January 2000 and alleged that petitioner offered her P100,000, which she initially accepted, for her and her sons non-appearance at the preliminary investigation. Erlinda presented the money to the investigating prosecutor. On 7 January 2000, Jennilyn Quirong, who witnessed the headbanging incident, and Melanie Lugales, who claimed to be another victim of petitioners alleged cruel deeds, filed their sworn statements with the Office of the Quezon City Prosecutor. On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked the disposition of the inquest prosecutor finding insufficient evidence to support the charges against her. Petitioner assailed the omission in Magdalenas sworn statement about Ronalds head injury due to a vehicular accident in November 1997. Petitioner pointed out the absence of damage or injury on Lorendo as borne out by his medical certificate. Petitioner contended that the head-banging incident was not the proximate cause of Ronalds death, but the failed medical attention or medical negligence. Petitioner also alleged that Jennilyn Quirong and Melanie Lugales have immature perception. Petitioner further asserted that the causes of death stated in Ronalds Death Certificate are hearsay and inadmissible in the preliminary investigation. Ronalds Death Certificate shows the immediate cause of his death as "Cardio Pulmonary Arrest," the underlying cause as "Cerebral Edema," and other significant conditions contributing to death as "Electrolyte imbalance and vomiting." The Autopsy Report, obtained by the investigating prosecutor from the PNP Crime Laboratory in Camp Crame, states the cause of death as

"Intracranial hemorrhage secondary to traumatic injury of the head." The investigating prosecutor issued a Resolution finding probable cause against petitioner for the offenses charged. The dispositive portion of the Resolution reads: WHEREFORE, in view of the foregoing, it is respectfully recommended that [petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of R.A. 7610 and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A. 7610 provides that: "For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, par. 2 and 263, par. 1 Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation and serious physical injuries, respectively, shall be reclusion perpetua when the victim isunder twelve (12) years of age." Bail recommended: No bail recommended Homicide, in relation to Art. VI, Sec. 10, R.A. 7610; and Twenty Thousand pesos (P20,000.00) Viol. of Sec. 10(a) of R.A. 76108 Consequently, petitioner filed a petition for review with the DOJ. In her appeal to the DOJ, petitioner contended that the investigating prosecutor showed bias in favor of complainants Magdalena and Erlinda ("complainants") for not conducting a clarificatory hearing and unilaterally procuring the autopsy report. Petitioner argued that the investigating prosecutor erred in concluding that her alleged act of banging Ronald and Lorendos heads was the cause of Ronalds injury and that such was an act of child abuse. Petitioner also alleged that it is the Office of the Ombudsman which has jurisdiction over the case, and not the Quezon City Prosecutors Office. The Resolution of the DOJ Secretary The DOJ Secretary denied the petition for review. The DOJ Secretary held that there was no bias in complainants favor when the investigating prosecutor did not conduct a clarificatory hearing and unilaterally procured the autopsy report as nothing precluded her from doing so. The DOJ Secretary upheld the investigating prosecutors finding that Ronalds injury was the direct and natural result of petitioners act of banging Ronald and Lorendos heads. The DOJ Secretary stated that petitioner never denied such act, making her responsible for all its consequences even if the immediate cause of

Ronalds death was allegedly the failed medical attention or medical negligence. The DOJ Secretary held that assuming there was failure of medical attention or medical negligence, these inefficient intervening causes did not break the relation of the felony committed and the resulting injury. The DOJ Secretary rejected petitioners claim that she is innocent as held by the inquest prosecutor. The inquest prosecutor did not dismiss the case. She merely recommended petitioners release for further investigation since the case was not proper for inquest and the evidence was then insufficient. The DOJ Secretary further stated that the omission in Magdalenas sworn statement about Ronalds head injury due to a vehicular accident in November 1997 and the absence of any injury on Lorendo are inconsequential. Moreover, the DOJ Secretary ruled that whether the statements of the causes of death in the death certificate and autopsy report are hearsay, and whether Jennilyn Quirong and Melanie Lugales have immature perception, are evidentiary matters which should be determined during trial. The DOJ Secretary also sustained the investigating prosecutors conclusion that the banging of Ronald and Lorendos heads is an act of child abuse. Petitioner filed a motion for reconsideration9 which the DOJ Secretary denied in his Resolution dated 19 April 2001.10 Hence, this petition. The Issues Petitioner raises the following issues: 1. Whether petitioner was denied due process during the preliminary investigation; and 2. Whether there is probable cause against petitioner for homicide under Article 249 of the Revised Penal Code in relation to Section 10(a), Article VI of RA 7610 and for violation of Section 10(a), Article VI of RA 7610. The Ruling of the Court The petition lacks merit. Before resolving the substantive issues in this case, the Court will address the procedural issue raised by the Office of the Solicitor General ("OSG").11 The OSG contends that instead of Rule 65, Rule 43 is applicable to the present case. Thus, the OSG argues that the petition should be dismissed outright for being filed with this Court, instead of with the Court of Appeals, under a wrong mode of

appeal. On the other hand, assuming Rule 65 applies, the OSG points out that the petition for certiorari should be filed with the Court of Appeals. Based on Memorandum Circular No. 58,12 the resolution of the DOJ Secretary is appealable administratively to the Office of the President since the offenses charged in this case are punishable by reclusion perpetua.13 From the Office of the President, the aggrieved party may file an appeal with the Court of Appeals pursuant to Rule 43.14 Even assuming that the DOJ Secretary committed grave abuse of discretion in rendering the assailed Resolutions amounting to lack or excess of jurisdiction, petitioner should have filed the instant petition for certiorari with the Court of Appeals. Hence, on the issue alone of the propriety of the remedy sought by petitioner, this petition forcertiorari must fail. However, considering the gravity of the offenses charged and the need to expedite the disposition of this case, the Court will relax the rules and finally resolve this case in the interest of substantial justice. Whether petitioner was due process during the preliminary investigation Absence of a clarificatory hearing The Court rejects petitioners contention that she was denied due process when the investigating prosecutor did not conduct a clarificatory hearing. A clarificatory hearing is not indispensable during preliminary investigation. Rather than being mandatory, a clarificatory hearing is optional on the part of the investigating officer as evidenced by the use of the term "may" in Section 3(e) of Rule 112. This provision states: (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. xxx15 (emphasis supplied) The use of the word "may" in a statute commonly denotes that it is directory in nature. The term "may" is generally permissive only and operates to confer discretion.16 Under Section 3(e) of Rule 112, it is within the discretion of the investigation officer whether to set the case for further hearings to clarify some matters. In this case, the investigating prosecutor no longer conducted hearings after petitioner submitted her counter-affidavit. This simply means that at that point the investigating prosecutor denied

believed that there were no more matters for clarification. It is only in petitioners mind that some "crucial points" still exist and need clarification. In any event, petitioner can raise these "important" matters during the trial proper. Petitioner was not deprived of due process since both parties were accorded equal rights in arguing their case and presenting their respective evidence during the preliminary investigation. Due process is merely an opportunity to be heard.17 Petitioner cannot successfully invoke denial of due process since she was given the opportunity of a hearing.18 She even submitted her counteraffidavit to the investigating prosecutor on 18 January 2000. Preliminary investigation is merely inquisitorial. It is not a trial of the case on the merits.19 Its sole purpose is to determine whether a crime has been committed and whether the respondent is probably guilty of the crime.20 It is not the occasion for the full and exhaustive display of the parties evidence.21 Hence, if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties evidence thus presented, he may terminate the proceedings and resolve the case. Obtaining a copy of the autopsy report Petitioner argues that she was denied the right to examine evidence submitted by complainants when the investigating prosecutor unilaterally obtained a copy of the autopsy report from the PNP Crime Laboratory. Petitioner fails to persuade us. Though the autopsy report is not part of the parties evidence, the Rules on preliminary investigation do not forbid the investigating prosecutor from obtaining it. Neither is there a law requiring the investigating prosecutor to notify the parties before securing a copy of the autopsy report. The autopsy report, which states the causes of Ronalds death, can either absolve or condemn the petitioner. Unfortunately for petitioner, the investigating prosecutor found that the autopsy report bolstered complainants allegations. Moreover, there is nothing to support petitioners claim that the investigating prosecutor was biased in favor of complainants. There are other pieces of evidence aside from the autopsy report upon which the investigating prosecutor based her finding of probable cause. The autopsy report is not the sole piece of evidence against petitioner. The sworn statement of the other victim, Lorendo, and the eyewitness account of Jennilyn Quirong, substantiate the charges against petitioner. Petitioners failure to deny the

occurrence of the head-banging complainants allegations.

incident

also

strengthened

Lugales, and (d) the alleged lack of medical assistance or medical negligence which caused Ronalds death. To repeat, what is determined during preliminary investigation is only probable cause, not proof beyond reasonable doubt. 25 As implied by the words themselves, "probable cause" is concerned with probability, not absolute or moral certainty.26 Asserting her innocence, petitioner continues to invoke the disposition of the inquest prosecutor finding insufficient evidence for the charges against her. As correctly ruled by the DOJ Secretary, the inquest prosecutor did not dismiss the case but merely recommended it for further investigation since it was not proper for inquest and the evidence was then insufficient. Moreover, petitioners active participation in the preliminary investigation without questioning the propriety of such proceedings indicates petitioners agreement with the recommendation of the inquest prosecutor for the further investigation of the case. Charges of Homicide and Child Abuse Petitioners single act of allegedly banging the heads of her students had two distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face prosecution for cruelty to each victim. For Ronalds death, petitioner is being charged with homicide under Article 249 of the Revised Penal Code 27 in relation to Section 10(a), Article VI of RA 7610 punishable by reclusion perpetua.28 However, this does not mean that petitioner is being charged with the distinct offenses of homicide and child abuse for Ronalds death. On the other hand, for her cruelty to Lorendo, petitioner is being charged with violation of Section 10(a), Article VI of RA 7610 punishable by prision mayor in its minimum period. Contrary to petitioners contention, Section 10(a), Article VI of RA 7610 is clear. This provision reads: (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the childs development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. A statute is ambiguous if it is susceptible to more than one interpretation.29 In the present case, petitioner fails to show convincingly the ambiguity in Section 10(a), Article VI of RA 7610.

Petitioner mistakenly cites Section 3(d) of Rule 11222 in arguing that the investigating prosecutor should not go beyond the evidence presented by complainants in resolving the case. This provision applies if the respondent cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit within the prescribed period. Such is not the case here where petitioner filed her counter-affidavit and both parties presented their respective evidence. Whether there is for the offenses charged Existence of probable cause probable against cause petitioner

Petitioner challenges the finding of probable cause against her for the offenses charged arguing that the head-banging incident was not the proximate cause of Ronalds death. Petitioner insists that efficient intervening events caused Ronalds death. We do not agree. There is probable cause for the offenses charged against petitioner. Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind that a crime has been committed and the respondent is probably guilty of the crime.23 In the present case, Ronald, a nine-year-old student, died five days after his teacher, petitioner in this case, allegedly banged his head against that of his classmate Lorendo. There is nothing in the records showing petitioners specific denial of the occurrence of such act. Petitioner simply stated that "the head-banging incident happened but [she] did not perpetrate it."24 In effect, petitioner admits the occurrence of the head-banging incident but denies committing it. The alleged intervening events before Ronald died, namely: (a) the consultation with a quack doctor, and (b) the three-day confinement in the East Avenue Medical Center, are not sufficient to break the relation of the felony committed and the resulting injury. Were it not for the head-banging incident, Ronald might not have needed medical assistance in the first place. These circumstances which allegedly intervened causing Ronalds death are evidentiary matters which should be threshed out during the trial. The following are also matters better left for the trial court to appreciate: (a) the contents of the death certificate and autopsy report, (b) the medical records of Ronalds accident in November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie

Section 3(b), Article VI of RA 7610 defines "child abuse" as the maltreatment, whether habitual or not, of the child which includes physical abuse and cruelty. Petitioners alleged banging of the heads of Ronald and Lorendo is clearly an act of cruelty. In a petition for certiorari like this case, the primordial issue is whether the DOJ Secretary acted with grave abuse of discretion amounting to lack or excess of jurisdiction. The Court rules that the DOJ Secretary did not commit grave abuse of discretion in finding that there is probable cause to charge petitioner of the crimes of homicide and child abuse. The Court further rules that the investigating prosecutor did not act with grave abuse of discretion in securing motu proprio the autopsy report and in not calling for a clarificatory hearing. This ruling does not diminish in any way the constitutional right of petitioner to be presumed innocent until the contrary is proven. WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 99-6254. No pronouncement as to costs. SO ORDERED.

ALEGRIA P. BELTRAN, Petitioner, - versus -

A.M. No. RTJ-06-2020 [Formerly A.M. OCA IPI 05-2230-RTJ]

Authority, which letter-complaint was received by the Office of the Chief Justice on November 17, 2004. A verified complaint essentially reiterating the charges in the said letter-complaint was subsequently filed by complainant on June 14, 2005.[4] Complainant charges that with respondents acceptance of the criminal complaints lodged by the police, despite the absence of a preliminary investigation, he us[ed] his position to sow terror and injustice, . . . violat[ed] mens constitutional rights and distorted [the] interpretation of the law and/[or] the rules.[5] To the complaint, complainant attached photocopies of respondents orders and other documents material to her complaint. In his Comment[6] of January 26, 2005, respondent proffers the following explanation: When he assumed his duties as Executive Judge, the Office of the City Prosecutor had only one prosecutor, Prosecutor Elfredo Sales, who had no assistant. Prosecutor Sales suffered a stroke, however, and had not fully recovered. While Prosecutor Ringcar Pinote was designated as Acting City Prosecutor on May 18, 2004, he too suffers from a heart ailment and often fails to attend court hearings and rarely conducts preliminary investigations. Assistant Provincial Prosecutor Rene Barrion was designated to assist Prosecutor Pinote, but cases were not assigned or indorsed to him. After several communications with the Department of Justice and the Regional State Prosecutor requesting the designation of an active Acting City Prosecutor, Memo Order No. 2004-18 was issued directing Prosecutor Pinote to attend to all cases, but the latter did not heed the same.[7] Respondent further proffers that given the length of time that there was no prosecutor in the Koronadal City RTC, he and Judge Alzate, Presiding Judge of another branch of the court, agreed, on the basis of the Philippine National Polices written request, to accept cases directly filed by the police on condition that after the arrest of the accused but before arraignment, the

JUDGE OSCAR E. DINOPOL, Promulgated: Executive Judge, Regional Trial September 20, 2006 Court, Branch 24, KoronadalCity, South Cotabato. Respondent. CARPIO MORALES, J.:

On the basis of two criminal complaints against Manuel Beltran, a retired Assistant Provincial Assessor of South Cotabato, one for Falsification of Public Documents (Criminal Case No. 5876), and the other for Attempted Murder (Criminal Case No. 5877), filed by the local police before the Regional Trial Court (RTC) of Koronadal City, South Cotabato, Executive Judge Oscar E. Dinopol (respondent) issued two (2) similarly worded Orders[1] finding probable cause to hale the accused into court and consequently ordering the issuance of warrants for his arrest. Thus each order read: After reading the Criminal Complaint including the Affidavit of the complainant, the Court is satisfied and finds probable cause. There being a need, however, to place the accused in custody of the law in order not to frustrate justice, let a warrant be issued for the arrest of the accused. On motion of the accused, Judge Laureano T. Alzate of Branch 25 of the Koronadal City RTC to which the cases were raffled, quashed the criminal complaints on the ground of, inter alia, absence of preliminary investigation.[2] Hence, spawned the filing of a November 10, 2004 lettercomplaint of Alegria P. Beltran (complainant),[3] wife of the accused, charging respondent with Gross Ignorance of the Law and Abuse of

cases would be remanded to the Prosecutors Office for further preliminary investigation.[8] Respondent furthermore explains that the Acting Presiding Judge of the Municipal Trial Court in Cities (MTCC), Koronadal City holds sessions only once a week and has instructions to his Clerk of Court not to accept cases for preliminary investigation, there being a designated City/Acting City Prosecutor to conduct the same; [9] and that he exercised good faith with the principal motive of filling a gap to make the flow and services of the enforcement and prosecution agencies continuous, for the promotion of an orderly administration of justice.[10] Acting on the complaint, the Office of Administrator (OCA) has come up with the following: the Court

issue warrants of arrest, the same cannot be done without the required preliminary investigation prior to the filing of the complaint or information. Section 1, Rule 112 of the Revised Rules of Criminal Procedure provides: Section 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial. Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. Viewed from the above-quoted provision of the Rule, direct filing of complaints or information is not allowed. Who are authorized to conduct preliminary investigation? Section 2, Rule 112 provides: Sec. 2. Officers authorized preliminary investigations. The following investigations: (a) may conduct to conduct

EVALUATION: Pars. (a), Sec. 6, Rule 112 of the Revised Rules of Criminal Procedure provides: Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant of arrest issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information. While the judge of the Regional Trial Court determines the existence of probable cause on the basis of evidence on record, and may consequently

preliminary

Provincial [or] City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Prosecutors; and Regional State

(d) Other officers as may be authorized by law. Judges of the Regional Trial Courts are not among those officers authorized to conduct preliminary investigation. Hence, in the absence of a

designated provincial or city prosecutor in RTC,Koronadal City, preliminary investigation may be conducted by the MTCC, Koronadal City Acting Presiding Judge. It should be stressed herein that the conduct of a preliminary investigation is not a judicial but an executive prerogative. For which reason, considering that there is a city prosecutor assigned in Koronadal City, preliminary investigation shall first be conducted by the city prosecutor before the filing of a proper complaint or information. [11] (Underscoring in the original; Emphasis supplied).

respondents violation of the Rules. Neither did the alleged failure of the designated Acting City Prosecutor to attend to all criminal cases in the city. Under those circumstances, respondent was not without any remedy. Parenthetically, why would, by respondents own claim, allow the filing in the RTC of criminal cases which have not been subjected to preliminary investigations and, after issuing the warrants of arrest, remand [the cases] to the Prosecutors Office for further preliminary investigation? A case of putting the cart before the horse! It bears stressing that a judge must be faithful to and proficient in the law. He must maintain professional competence which is a mark of a good judge. [15] Basic legal procedures must be at the palm of his hands. [16] When the law is sufficiently basic, a judge owes it to his office to simply apply it. Anything less erodes the confidence of the public in the courts and it constitutes gross ignorance of the law.[17]

The OCA thus recommends that respondent be fined the amount of P20,000.00, with warning that a repetition of the same or similar act will be dealt with more severely, and that he be directed to refrain from allowing the filing of criminal complaints or informations which have not been subjected to preliminary investigations and ordering the issuance of warrants of arrest on the basis thereof.[12] The evaluation and recommendation of the OCA are well-taken. Section 2, Rule 112 of the Revised Rules of Criminal Procedure enumerates who are authorized to conduct preliminary investigations. RTC judges, who were under the 1964 Rules of Court authorized to conduct preliminary investigations, have been expressly excluded under said section of the Revised Rules of Criminal Procedure.[13] Preliminary investigation of criminal cases is intended to protect the accused from the inconvenience, expense, and burden of defending himself in a formal trial until the reasonable probability of his guilt has first been ascertained in a fairly summary proceeding by a competent officer. It also protects the State from having to conduct useless and expensive trials.[14] If, as respondent tries to justify his questioned act, the city prosecutor had been sickly, respondent could have endorsed the criminal complaint to the Presiding Judge of the MTCC, Koronadal City. The alleged instruction of the MTCC judge not to accept cases for preliminary investigation did not justify

WHEREFORE, respondent Judge Oscar E. Dinopol, Regional Trial Court, Branch 24, Koronadal City, South Cotabato is, for Gross Ignorance of the Law and Abuse of Authority, ORDERED to pay a FINE of Twenty Thousand (P20,000.00) Pesos with WARNING that a repetition of the same or similar act will be dealt with more severely. He is further ORDERED to refrain from allowing the filing before the Regional Trial Court of criminal complaints which have not been subjected to preliminary investigation.

SO ORDERED.

G.R. No. 164715

September 20, 2006

ARNEL C. ALCARAZ, petitioner, vs. RAMON C. GONZALEZ, respondent. DECISION CALLEJO, SR., J.: Before us is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 75589, granting the petition for review of the Resolution of the Secretary of Justice in I.S. No. H03484 for attempted homicide, as well as the Resolution denying the motion for reconsideration thereof. The Antecedents At around 10:05 a.m. of August 11, 2000, 61-year-old Ramon C. Gonzalez was driving his Nissan Cefiro car with plate no. UPW-298 along the right outermost lane of the South-Luzon Expressway. He was on his way to Makati City and had just passed the Sucat toll gate.2 Atty. Arnel C. Alcaraz, a Customs Collector of the Bureau of Customs, Batangas Port, was driving his Nissan Infiniti car with plate no. CNH-338. He was in the middle lane of the South-Luzon Expressway, between the Sucat and Bicutan Interchange, on his way to Manila from Batangas City. He was armed with a .38 caliber pistol and had with him Mission Order No. 699-2000, to expire on August 21, 2000. Since Alcaraz intended to use the Skyway, he signaled, and proceeded to the right-most lane which was reserved for vehicles taking the Skyway. Gonzalez, who was on the right-most lane, was forced to swerve his car to the right to avoid colliding with Alcaraz's vehicle and nearly hit the concrete island. Nonplussed, Gonzalez chased after Alcaraz, opened his windows and shouted at Alcaraz, demanding to know why the latter suddenly cut into his lane. Alcaraz retorted that he had signaled that he was swerving to the right. Gonzalez reproved Alcaraz and drove on. Alcaraz drove his car to Gonzalez's right. Upon nearing an island, Alcaraz raised his pistol towards Gonzalez and fired twice: the first bullet hit the right front window of the vehicle and exited at the left rear door; the second bullet hit the left rear window of Gonzalez's car.3 Alcaraz hurriedly drove away from the scene, but was intercepted by the PNCC guards at the Skyway toll gate. The guards confiscated from Alcaraz the .38 pistol with 7 live bullets and 3 empty shells.4

Gonzalez reported the matter to the Paraaque City Police Station where he gave a statement to the police investigator, and filed a criminal complaint for attempted homicide against Alcaraz.5 The PNP Crime Laboratory examined Gonzalez's car to determine the trajectory of the bullets. Report No. PI-46-2000 was prepared in connection with the investigation, with the following findings: Macro-physical examination conducted on the above-stated car "A" revealed the following results: 1. Entrance bullet hole ENT-1 found on the right front door, fired from right front with approximate diameter of 1.25 cms.; 2. Entrance bullet hole ENT-2 found at the rear left door, fired from right front measuring 0.5 cm by 1.0 cm.; 3. Exit bullet hole Ext-1 with an approximate diameter of 1.1 cm, found on the rear left door fired from right front. xxx CONCLUSION: The entrance bullet holes and the exit bullet hole were caused by bullets fired from right, front side of the vehicle. xxx6 On August 11, 2000, Alfredo Tan Buraga, Officer-in-Charge of the Paraaque Police Station, filed a criminal complaint for attempted homicide against Alcaraz in the Office of the City Prosecutor of Paraaque City.7 After the Office of the City Prosecutor conducted an inquest, an Information for attempted homicide against Alcaraz was filed with the Metropolitan Trial Court (MeTC) of Paraaque City. The inculpatory portion reads: That on or about the 11th day of August 2000 in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, with intent to kill and without justifiable cause, did then and there, willfully, unlawfully and feloniously attack, assault and shot one Ramon Gonzalez, thus commencing the commission of the crime of Homicide directly by overt acts but nevertheless did not perform all the acts of execution which should have produced the crime of Homicide by reason of cause or causes other than his own spontaneous desistance, that is due to the timely evasion made by the complainant. CONTRARY TO LAW.8

On motion of Alcaraz, the MeTC ordered the City Prosecutor to conduct a preliminary investigation.9 In his counter-affidavit, Alcaraz admitted having fired his gun towards the car of Gonzalez. However, he alleged that Gonzalez opened his car window, uttered invectives and waived a dirty finger at him. Gonzalez then proceeded to throw coins at him, hitting him on the chest, and again uttered invectives. He saw Gonzalez reach for a short firearm and aim it at him. This prompted him to take his firearm which was on the passenger seat, and fire it downwards twice onto the right passenger door of Gonzalez's vehicle. Alcaraz claimed that he did not aim his gun at Gonzalez; he had no intention of hitting Gonzalez, and only wanted to scare him.10 At the police station, Gonzalez identified himself as the brother of Congressman Jose Mari Gonzalez.11 In his reply-affidavit,12 Gonzalez insisted that Alcaraz attempted to kill him. He denied having thrown coins at Alcaraz and that he had a gun at the time. Gonzalez pointed out that Alcaraz's allegation that he was defending himself when he fired his gun was in effect an admission of intent to kill. The Investigating Prosecutor resolved to maintain his finding of probable cause of attempted homicide against Alcaraz and to retain the Information. Alcaraz filed a motion for reconsideration, and when it was denied, filed a petition for review with the City Prosecutor's Office, Department of Justice. He alleged the following: (a) The Honorable Investigating Prosecutor erred in giving serious considerations on complainant's theory on the trajectory of the bullet, as illustrated in his Reply-Affidavit dated 17 January 2001; (b) The Honorable Investigating Prosecutor erred in holding that respondent-appellant had the intent to kill the complainant; and (c) The Honorable Investigating Prosecutor erred in giving weight and credence on the allegations of complainant relative to the material points of the incident subject of the preliminary investigation.13 On November 26, 2001, then Secretary of Justice Hernando Perez issued a Resolution14 granting the petition and ordering the City Prosecutor to withdraw the Information. The dispositive portion reads: WHEREFORE, the appeal is hereby GRANTED. The City Prosecutor of Paraaque City is hereby directed to move for the withdrawal of the information for attempted homicide

filed against respondent and to report to this Office the action taken within ten (10) days from receipt thereof. SO ORDERED. According to the Justice Secretary, Gonzalez failed to prove beyond reasonable that Alcaraz had intended to kill him, thus: Evidence shows that respondent was provoked by complainant's acts of repeatedly hurling, not only invectives like "putang ina mo" with a dirty finger sign, but also the throwing of coins that hit respondent's face and his lady passenger. The natural consequence was for respondent to retaliate as what had transpired in the instant case. There is no dispute that respondent fired his gun. But as to whether or not he had the intention to kill complainant is a different issue. Respondent's argument that he had no intention of hitting complainant and that his objective was only to scare him finds merit. As borne by the records, complainant himself was not hit. The gunfire was rather aimed at the passenger side of his car. Neither is there an indication that respondent continued firing his gun. These circumstances tend to negate the presumption that respondent had the intention to kill complainant. It has been held that intent to kill, being an essential element of the offense of frustrated or attempted homicide, must be proved by clear and convincing evidence and with the same degree of certainty as is required of the other elements of the crime. The element of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond reasonable doubt (Mondragon v. People, 17 SCRA 476). Further, acts susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes (Aquino, Revised Penal Code, 1997 ed., p. 103). Viewed from the foregoing pronouncements, the circumstance of trajectory of the bullet, from whence inference was made in the assailed resolution, is not well taken. The element of intent to kill not established, and considering unscathed, a finding of probable for attempted homicide is difficult having been satisfactorily that complainant was cause against respondent to sustain.15

Gonzalez filed a motion for reconsideration, Undersecretary of Justice denied on January 29, 2003.

which

the

1.1 The petitioner has no legal standing to file the present petition for review. 1.2 The present petition for review filed under Rule 43 of the Revised Rules of Court is an erroneous appeal. 1.3 The Metropolitan Trial Court of Paraaque, Branch 77 where the Information for Attempted Homicide against respondent was filed has exclusive and original jurisdiction over the subject matter of the present petition for review.17 On July 19, 2004, the CA resolved to deny Alcaraz's motion,18 holding that his grounds and objections had already been considered and passed upon by it in its decision.19 Alcaraz, now petitioner, filed the instant petition for review on certiorari, alleging that I THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO REVIEW THE RESOLUTIONS OF THE SECRETARY OF JUSTICE IN AN APPEAL BY WAY OF A PETITION FOR REVIEW UNDER RULE 43 OF THE 1997 REVISED RULES OF COURT. II THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO DETERMINE THE EXISTENCE OF PROBABLE CAUSE AND/OR TO SUBSTITUTE ITS OWN FINDINGS OF PROBABLE CAUSE TO THAT OF THE SECRETARY OF JUSTICE IN AN APPEAL BY WAY OF A PETITION FOR REVIEW UNDER RULE 43 OF THE 1997 REVISED RULES OF COURT. III. THE RESPONDENT HAS NO LEGAL STANDING TO APPEAL BY WAY OF A PETITION FOR REVIEW UNDER RULE 43 OF THE 1997 REVISED RULES OF COURT THE RESOLUTION OF THE DEPARTMENT OF JUSTICE TO THE HONORABLE COURT OF APPEALS.20 Petitioner avers that respondent, as petitioner in the CA, had no legal standing to appeal the resolutions of the Justice Secretary by way of a petition for review. Moreover, as the private complainant, private respondent was merely a witness in the criminal case in the MeTC. It is only the State through the Office of the Solicitor General (OSG) that has legal standing to appeal or assail the resolutions of the Secretary of Justice. Petitioner further avers that the Justice Secretary is not a quasijudicial officer within the context of Rule 43 of the Rules of Court.

Gonzalez then filed a petition for review under Rule 43 of the 1997 Rules of Civil Procedure before the CA, seeking the reversal of the Justice Secretary's Resolution. He claimed that the Secretary acted beyond his authority in finding no probable cause to charge Alcaraz with attempted homicide and for ordering the City Prosecutor to withdraw the Information. He insisted that by invoking self-defense, Alcaraz thereby admitted his intention to kill him (Gonzalez). He claimed that Alcaraz's claim of self-defense should be ventilated during trial on the merits. In his comment on the petition, Alcaraz averred that the CA had no appellate jurisdiction over the petition, and that Gonzalez had no legal standing to file the petition. He insisted that the remedy from an adverse resolution of the Justice Secretary is to file a petition for certiorari under Rule 65 of the Rules of Court, as amended, grounded on grave abuse of discretion amounting to excess of jurisdiction, not one under Rule 43 of said Rule. He averred that the Justice Secretary is not a quasi-judicial officer under Rule 43 whose resolutions may thus be reviewed by the CA. Alcaraz likewise pointed out that the CA was without power to substitute its own judgment for that of the Justice Secretary regarding the existence or non-existence of probable cause to charge him with attempted homicide. On March 22, 2004, the CA rendered judgment granting the petition and reversing the assailed resolutions of the Secretary of Justice. The fallo of the decision reads: WHEREFORE, premises considered, the Resolutions promulgated on November 26, 2001 and January 29, 2003 by the Department of Justice, in I.S. No. H-03484, Criminal Case No. 105593, are hereby REVERSED and SET ASIDE. No pronouncement as to costs. SO ORDERED.16 The CA ruled that the petition for review under Rule 43 of the Rules of Court, as amended, was meritorious. The appellate court declared that, based on the evidence on record, there was probable cause to file an Information for attempted homicide against Alcaraz. However, the CA failed to resolve the issue of whether it had appellate jurisdiction over the petition under Rule 43 of the Rules of Court, as amended. Alcaraz filed a motion for the reconsideration on the following grounds:

He reiterates his claim that the CA has no appellate jurisdiction to review the assailed resolutions of the Secretary of Justice by way of a petition for review under Rule 43 of the Rules of Court, the proper remedy being a petition for certiorari under Rule 65. Petitioner cites the rulings of this Court in Filadams Pharma, Inc. v. Court of Appeals21 and Public Utilities Department of Olongapo City v. Guingona, Jr.22 to support his contention. He further insists that the determination of probable cause for the filing of an Information in court is not a judicial function, but an executive function; hence, the findings and resolutions of the Justice Secretary should prevail over the CA ruling. In its Comment on the petition, the OSG avers that the CA erred in granting the petition of respondent, since the proper remedy from an adverse resolution issued by the Secretary of Justice is to file a petition for certiorari under Ruler 65 of the Rules of Court, not a petition under Rule 43. By way of Comment, respondent maintains that he had the legal standing to file the petition with the CA and that the State is merely a nominal party. He avers that the Secretary of Justice acted as a quasi-judicial officer when he reviewed the resolutions of the City Prosecutor; hence, the same may be reviewed by the CA via petition for review under Rule 43 of the Rules of Court. In any event, respondent asserts, technicalities should be ignored, and the CA should not be faulted for taking cognizance of and resolving his petition on its merits. In reply, petitioner avers that conformably with the resolution of the Secretary of Justice, the City Prosecutor had filed a motion to withdraw the information in the MeTC, and the court had granted the motion per its Order dated March 7, 2003. He points out that respondent had not appealed the said order of the trial court.23 The Ruling of the Court The petition is meritorious. The threshold issue is whether the petition for review under Rule 43 of the Rules of Court was the proper remedy of respondent. We agree with petitioner's contention that respondent resorted to an improper remedy when he filed a petition for review under Rule 43 of the Rules of Court, instead of filing a petition for certiorari under Rule 65. It bears stressing that in the determination of probable cause during the preliminary investigation, the executive branch of

government has full discretionary authority. Thus, the decision whether or not to dismiss the criminal complaint against the private respondent is necessarily dependent on the sound discretion of the Investigating Prosecutor and ultimately, that of the Secretary of Justice. Courts are not empowered to substitute their own judgment for that of the executive branch.24 The resolution of the Investigating Prosecutor is subject to appeal to the Justice Secretary who, under the Revised Administrative Code, exercises the power of control and supervision over said Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the ruling of such prosecutor. 25 Thus, while the CA may review the resolution of the Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of the Rules of Court, solely on the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of jurisdiction.26 It bears stressing that the Resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000 National Prosecution Service Rules on Appeals), resolutions in preliminary investigations or reinvestigations from the Justice Secretary's resolution, except the aggrieved party, has no more remedy of appeal to file a motion for reconsideration of the said resolution of such motion if it is denied by the said Secretary. The remedy of the aggrieved party is to file a petition for certiorari under Rule 65 of the Rules of Court since there is no more appeal or other remedy available in the ordinary course of law.27 In the present case, respondent filed a petition for review under Rule 43 of the Rules of Court, assailing the resolutions of the Justice Secretary. Instead of dismissing the petition, however, the CA gave due course to it and thereafter granted the petition, on its finding that the Justice Secretary erred in reversing the resolution of the Investigating Prosecutor which found probable cause against petitioner for attempted homicide. Patently, the ruling of the CA is incorrect. IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 75589 are NULLIFIED. SO ORDERED. Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.

G.R. No. 133077

September 8, 2006

ADORACION G. ANGELES, petitioner, vs. HON. ANIANO A. DESIERTO, as Ombudsman of the Philippines, ROLINE M. GINEZ-JABALDE, ANGEL C. MAYORALGO, JR., ABELARDO L. MONTEMAYOR, ROBERT E. KALLOS and LEONARDO P. TAMAYO, all of the Office of the Ombudsman, Secretary LINA B. LAIGO of the Department of Social Welfare and Development (DSWD), and Asst. Chief State Prosecutor PASCUALITA DURAN-CERENO, Senior State Prosecutor HERNANI T. BARRIOS, State Prosecutor RICHARD ANTHONY D. FADULLON and State Prosecutor ALFREDO P. AGCAOILI, all of the Department of Justice, Manila, respondents. DECISION GARCIA, J.: By this special civil action for certiorari and mandamus under Rule 65 of the Rules of Court, petitioner Adoracion G. Angeles seeks the annulment and setting aside of the following issuances in connection with OMB-0-97-0047, a proceeding instituted by the petitioner with the Office of the Ombudsman against the respondents (DSWD) Secretary Lina B. Laigo; Assistant Chief State Prosecutor Pascualita Duran-Cereno; Senior State Prosecutor (SSP) Hernani T. Barrios; and State Prosecutors (SPs) Richard Anthony D. Fadullon and Alfredo P. Agcaoili, for alleged violation of Article 171(5)1 of the Revised Penal Code, violation of Republic Act (R.A.) No. 3019,2particularly Section 3(f)3 thereof, in relation to Article I, Section 3(b) (4)4 and Section 3 (c) (6)5 of R.A. No. 7610:6 1.) Resolution dated September 18, 1997, issued by Graft Investigation Officer II Roline M. Ginez-Jabalde of the Office of the Ombudsman, recommending the dismissal of the charges filed by the petitioner against Secretary Lina B. Laigo of the DSWD; Assistant Chief State Prosecutor Pascualita Duran-Cereno; Senior State Prosecutor Hernani T. Barrios; and State Prosecutors Richard Anthony D. Fadullon and Alfredo P. Agcaoili; 2.) Memorandum dated November 20, 1997, issued by Special Prosecution Officer III Carlos D. Montemayor of the Department of Justice (DOJ), recommending the approval of the aforesaid September 18, 1997 Resolution; and 3.) Order dated January 23, 1998, duly approved by then Ombudsman Aniano A. Desierto, denying the herein

petitioner's motion for reconsideration September 18, 1997 Resolution.

of

the

same

The main case, OMB-0-97-0047, traces its roots from a criminal complaint for physical abuse and maltreatment under R.A. No. 7610, filed against the herein petitioner by her housemaids, Proclyn Pacay and Nancy Gaspar, before the Department of Justice (DOJ). The complaint, docketed as I.S. No. 95-224, was initially assigned for investigation to SSP Hernani T. Barrios. On April 21, 1995, the petitioner filed a manifestation and motion submitting I.S. No. 95-224 for resolution and praying for its dismissal. On June 21, 1995, SSP Barrios issued a subpoena directing the petitioner as respondent in I.S. No. 95-224 to appear and present her evidence in the hearing of July 18, 1995. During the hearing, the petitioner reiterated her earlier plea to submit the case for resolution, which was duly granted by SSP Barrios. On January 12, 1996, the petitioner, irritated with the delay in the resolution of I.S. No. 95-224, filed an administrative complaint against SSP Barrios charging the latter with dishonesty, gross negligence and incompetence. Three days later, or on January 15, 1996, the petitioner filed an urgent motion, this time to disqualify SSP Barrios from proceeding with or resolving I.S. No. 95-224. In the meantime, another criminal complaint, also for violation of R.A. No. 7610, was filed against the petitioner and her sister Oliva Angeles, by Rebecca Pacay, a former helper of the petitioner. This other complaint was filed before the Quezon City Prosecutor's Office and thereat docketed as I.S. No. 96-258. On February 2, 1996, I.S. No. 96-258 was indorsed by the Quezon City Prosecutor to the Office of the Chief State Prosecutor, DOJ, because of its similarity with I.S. No. 95-224. In the DOJ, I.S. No. 96-258 was redocketed as I.S. No. 96-097. Later, pursuant to a Memorandum dated March 6, 1996 of Chief State Prosecutor (CSP) Jovencito Zuo, I.S. No. 95-224 and I.S. No. 96-097 were consolidated and assigned to SPs Richard Anthony D. Fadullon and Alfredo P. Agcaoili. On July 25, 1996, SPs Richard Anthony D. Fadullon and Alfredo P. Agcaoili issued a Joint Resolution7 in the consolidated cases. Therein, they recommended the dismissal of Rebecca Pacay's complaint in I.S. No. 96-097 and the filing of two (2) informations against the petitioner for violation of Section 10(a) of R.A. No. 7610. More specifically, the joint resolution dispositively reads:

WHEREFORE and in view of the foregoing, it is respectfully recommended that I.S. No. 96-097 filed by Rebecca Pacay against respondent Judge Adoracion Angeles and Oliva Angeles be dismissed. Likewise, we recommend for approval the filing of two (2) informations for violation of Section 10 (a) of Republic Act No. 7610 against respondent Judge Adoracion Angeles relative to I.S. No. 95-224. The aforementioned Jovencito Zuo. Joint Resolution was approved by CSP

members of society. Undoubtedly, the unfounded scandal orchestrated by my detractors and maliciously supported by all the respondents will leave an indelible stigma upon the girls; and 19. That it is evident that the case against me is rooted on vengeance with no other intention than to harass and cast a stigma to my good name and the respondents are all willing conspirators. In the same affidavit-complaint, the petitioner charged respondents SSP Barrios and SPs Fadullon and Agcaoili of falsification under Article 171(5) of the Revised Penal Code. In the herein first assailed Resolution10 dated September 18, 1997, Graft Investigator Officer II Roline M. Ginez-Jabalde, of the Office of the Ombudsman, recommended the dismissal of OMB-097-0047. In the Memorandum dated November 20, 1997, Special Prosecution Officer III Carlos D. Montemayor, also of the same office, recommended the approval of the September 18, 1997 Resolution. Finally, in the Order dated January 23, 1998, Director Angel Mayoralgo, Jr., likewise of the Office of the Ombudsman, and Assistant Ombudsman Abelardo Aportadera, recommended the denial, for lack of merit, of the petitioner's motion for reconsideration of the Resolution dated September 18, 1997. The recommendation was duly approved by the herein respondent, then Ombudsman Aniano A. Desierto, as borne by the latter's signature appearing at the bottom of said Order. Petitioner is now before the Court via the present recourse imputing grave abuse of discretion on the part of the Ombudsman and his investigating officers in dismissing OMB-0-97-0047. In the same vein, the petitioner seeks to annul and set aside their above stated issuances in said case. The mandamus aspect of the petition seeks to command the respondent Ombudsman to file the information in court for violations of Article 171(5) of the Revised Penal Code and Section 3(e) and (f) of R.A. No. 3019, as amended, against DSWD Secretary Lina B. Laigo, Assistant Chief State Prosecutor Pascualita Duran-Cereno, SSP Hernani T. Barrios and SPs Richard Anthony D. Fadullon and Alfredo P. Agcaoili. The petition is bereft of merit. To the petitioner, "the predisposition of the respondents to indict (her) at all cost is very apparent and an undeniable badge of bad faith on their part as it is clear that the findings (in the Joint

In time, the petitioner moved for a partial reconsideration of the aforesaid joint resolution. With the inhibition of CSP Zuo, petitioner's motion for partial reconsideration was referred to the Acting CSP, Pascualita Duran-Cereno. In a resolution8 dated October 7, 1996, Acting CSP Duran-Cereno denied the petitioner's motion, to wit: Premises considered, the partial motion for reconsideration is denied. Let the two (2) informations for violations of Section 10 (a), RA 7610 be filed in the Court of proper jurisdiction. From the aforementioned denial resolution, the petitioner filed with the DOJ a petition for review. Unfortunately for her, however, the petition was denied by DOJ Undersecretary Ricardo G. Nepomuceno in the resolution dated January 16, 1997. It was against the foregoing backdrop of events that the petitioner, obviously displeased with what transpired, filed with the Office of the Ombudsman an Affidavit-Complaint9 against the following: Secretary Lina B. Laigo of the DSWD; Assistant Chief State Prosecutor Pascualita Duran-Cereno; SSP Hernani T. Barrios; and SPs Richard Anthony D. Fadullon and Alfredo P. Agcaoili. The complaint was docketed as OMB-0-97-0047. We reproduce hereunder the petitioner's accusations against the impleaded respondents in OMB-0-97-0047, to wit: 17. That the acts of all the respondents in unduly favoring the complainants in I.S. No. 95-224 and discriminating against me [petitioner] is likewise a wanton violation of Sec. 3(f) of RA 3019; 18. That the malicious acts of herein respondents are also constitutive of child abuse as defined by Section 3(b) (4) in relation to Section 3(c) (6) RA 7610 inasmuch as the continued detention of the girls at the DSWD albeit against their free will and their constant exposure to the trauma of a court litigation seriously impair their normal development as

Resolution) are not the result of an honest and objective appraisal of the evidence but the repulsive product of Barrios' avenging nature which was supported and cooperated with by his corespondents,"11 in OMB-0-97-0047. In support of her conspiracy theory, the petitioner alleges that Secretary Lina B. Laigo of the DSWD interfered with and manifested undue interest in the maltreatment case by making repeated calls to the DOJ urging the immediate filing of criminal information therefor against the petitioner. As their part in the perceived grand conspiracy, petitioner avers that respondents Barrios, Fadullon and Agcaoili, whom she claims to have a close link with the DSWD Secretary, allegedly orchestrated her indictment for maltreatment to protect the image of the DSWD which was allegedly holding the complainants in the maltreatment cases against their will. Turning to respondent Pascualita Duran-Cereno, this respondent, according to the petitioner, conspired with the other respondents when "she maliciously affirmed in toto the obviously biased findings of her co-respondents Barrios, Fadullon and Agcaoili."12 With respect to respondents Fadullon and Agcaoili, the petitioner alleged that the two conspired with respondent Barrios in falsifying an unsigned Joint Resolution13 in the maltreatment cases by antedating the same to show that it was ready for release by February 7, 1996. Petitioner insists that "respondent Barrios could not have made the document on February 7, 1996 since the referral of I.S. No. 96-097 was made on February 2, 1996 and the investigation commenced only on March 21, 1996 by respondents Fadullon and Agcaoili."14 Time and again, the Court has ruled that the Ombudsman has the full discretion to determine whether a criminal complaint should be dismissed or the necessary Information be filed in the appropriate court. His determination and evaluation of the adequacy of evidence in this regard are unfettered. His is an exercise of powers based upon a constitutional mandate and the courts should not interfere in such exercise.15 So it is that in Espinosa v. Office of the Ombudsman,16 the Court states: The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as RA 6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from legislative, executive or judicial intervention. This Court consistently refrains from interfering with the exercise

of its powers, and respects the initiative and independence inherent in the Ombudsman who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of public service. The same ruling was reiterated in Salvador v. Desierto, et al.,17 where the Court further declared: On the issue of whether respondent Ombudsman committed grave abuse of discretion in dismissing the complaint against respondents, let it be stressed that the Ombudsman has discretion to determine whether a criminal case, given its facts and circumstances, should be filed or not. It is basically his call. He may dismiss the complaint forthwith should he find it to be insufficient in form or substance or he may proceed with the investigation if, in his view, the complaint is in due and proper form and substance. xxx xxx xxx Indeed, we have consistently ruled that unless there are good and compelling reasons, we cannot interfere in the Ombudsman's exercise of his investigating and prosecutory powers. Without good and compelling reasons to indicate otherwise, the Court cannot freely interfere in the Ombudsman's exercise of his investigatory and prosecutory powers. He may dismiss the complaint forthwith if he finds it to be insufficient in form or substance or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation if the complaint is, in his view, in due and proper form. 18 However, while the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, the Court is not precluded from reviewing his action when there is an abuse of discretion, by way of Rule 65 of the Rules of Court.19 The Court sees no abuse, much less grave abuse of discretion, committed in this case. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.20 Such arbitrariness or despotism does not obtain here. Without more, petitioner's bare allegation of intimacy among the respondents in OMB-0-97-0047 does not prove conspiracy

inasmuch as conspiracy transcends companionship.21 To establish conspiracy, evidence of actual cooperation, rather than mere cognizance or approval of an illegal act is required. 22 As we see it, nothing on record even minutely suggests that the respondents conspired to insure the indictment of the petitioner. As correctly pointed out by the Ombudsman in the challenged Order dated January 23, 1998: The coordination and monitoring on the cases against the complainant Judge (petitioner) made by the respondent Secretary should not be interpreted as pure interference on the job of the state prosecutors. Enforcement of R.A. 7610 lies principally on the shoulders of the respondent Secretary being the head of the agency called for this purpose. The undue interest shown by the respondent Secretary should not be viewed on the negative perspective but should be given a positive outlook. This is a clear signal that she is serious in performing her job as protector of the rights of children against child abuse, exploitation and discrimination. xxx xxx xxx The continued custody by the DSWD over the children Proclyn Pacay and Nancy Gaspar works for their own advantage and benefit contrary to the belief of the complainant Judge. Their constant exposure to the trauma of court litigation are the necessary consequences of their decision to file a complaint against Judge Adoracion G. Angeles but this is not tantamount to child abuse. Neither does the alleged similarity existing between the resolution prepared by respondent Barrios and the Joint Resolution prepared by respondents Fadullon and Agcaoili indicate conspiracy. The similarities could simply be attributed to the fact that the two resolutions have been lifted from the same set of records. With regard to the charge of falsification against respondents Barrios, Fadullon and Agcaoili, again, we agree with the observations of Graft Investigation Officer II Roline M. Ginez-Jabalde in his assailed Resolution dated September 18, 1997: Respondent Barrios did not antedate his resolution because on the same date February 7, 1996, complainant Judge had learned from him that he would personally file charges against her. This means that he had already disposed the case by having at that time a prepared resolution and the contents of the same had already been fed to the respondent's computer for printing and for subsequent release.

Complainant Judge's assertion of ante-dating to conceal connivance is entirely baseless because nobody could know at that time to whom the case would be assigned in the event the inhibition and disqualification will be granted. xxx xxx xxx A Sur-Rejoinder was filed by the complainant Judge where she narrated some material facts which could enlighten the undersigned investigator in the determination of probable cause. Furthermore, the Joint Resolution was not even signed by respondent Barrios, hence, it produces no legal effect and is a mere scrap of paper. The fact that it was introduced as evidence in the administrative complaint does not change the status of the document. The allegation that respondent Pascualita Duran-Cereno allowed herself to be a part of the conspiracy when she denied the petitioner's partial motion for reconsideration and affirmed the findings in the Joint Resolution of respondents Fadullon and Agcaoili is utterly without basis. Petitioner who is herself a judge should understand that respondent Pascualita Duran-Cereno merely performed her duties as a reviewing officer. The alleged failure to consider the evidence adduced by the petitioner should not be a cause for an administrative case against said respondent because these matters are best addressed to the sound discretion of the trial court during the trial proper. It is likewise noteworthy that the petitioner had exhausted all remedies available to her, which shows that the findings of the Prosecutors and the reviewing officer are in accordance with law. To recapitulate, in the absence, as here, of a clear case of grave abuse of discretion, the Court will not interfere with the discretion of the Ombudsman, who, depending on his finding and considered evaluation of the case, either dismisses a complaint or proceeds with it. WHEREFORE, the instant petition is DISMISSED. SO ORDERED.

GLAXOSMITHKLINE PHILIPPINES, INC., Petitioner, KHALID MEHMOOD MUHAMMAD ATEEQUE, GARCIA, J. - versus MALIK and

G.R. No. 166924

respondent Malik was allegedly caught receiving marked money from one of the team members as payment for parallel imported pharmaceutical products. Then and there, Malik was placed under arrest and brought to the NBI Headquarters whereat he was found positive for the presence of fluorescent powder. Respondent Ateeque allegedly left before the buy-bust operation could be effected. After due examination of the confiscated samples of pharmaceutical products and the drugs allegedly sold by Malik, petitioner concluded that the same did not conform to Glaxos standards. The next day, June 10, 2002, Inquest Prosecutor Albert R. Fonacier of the Department of Justice (DOJ) conducted an inquest investigation of respondent Malik. Thereafter, Criminal Cases No. 02-0699 to No. 0701 for violation of RA No. 3720, also known as the Food, Drugs and Cosmetic Act and RA No. 8203, otherwise known as the Special Law on Counterfeit Drugs, were filed against Malik before the Regional Trial Court of Paraaque City, Branch 258. As regards respondent Ateeque who was at large at the time, the court recommended that he too be preliminarily investigated. State Prosecutor Isagani Rabe commenced the preliminary investigation of respondent Ateeque. Upon motion of respondent Malik that his case be reinvestigated together with that of Ateeques, the DOJ consolidated the preliminary investigation of the complaints against both respondents and had them docketed as I.S. No. 2002-515. On January 14, 2003, Senior State Prosecutor Leah C. Tanodra-Armamento issued a resolution[3] dismissing the charges against both respondents. Pertinently, the resolution reads: xxx xxx xxx Consequently, the affidavits filed by complainant failed to sustain any indictment in the light of respondents evidence. Worse, it is not consistent with the truth. xxx xxx xxx WHEREFORE, premises considered, the foregoing charges against respondents Khalid Mehmood Malik and Muhammad Ateeque are hereby dismissed for lack of merit. SO ORDERED

Respondents. In this petition for review under Rule 45 of the Rules of Court, petitioner GLAXOSMITHKLINE PHILIPPINES, INC. (Glaxo, hereafter) seeks to nullify and set aside the Decision[1] dated October 28, 2004 of the Court of Appeals (CA) in CA-G.R. SP No. 78646, as reiterated in its Resolution[2] of January 24, 2005, affirming an earlier resolution of the Secretary of Justice which dismissed the petition for review taken by the petitioner in I.S. No. 2002-515 (Crim. Case Nos. 02-0699-0701), a prosecution for violation of Republic Acts (RA) No. 3720 and No. 8230, filed against the herein respondents, Khalid Mehmood Malik and Muhammad Ateeque, at the instance of the petitioner and others. The facts: Acting on separate letter-complaints filed by Glaxo and two (2) other pharmaceutical companies operating in the country, namely, Pfizer Phil., Inc. (Pfizer) and Roche Phil., Inc. (Roche), to the effect that respondents were illegally engaged in the sale and distribution of unregistered imported pharmaceutical drugs at their business establishments inParaaque City, namely, the World Traders, Inc. and the Sahar International Trading Center (SITI), the National Bureau of Investigation (NBI) Intellectual Property Rights Division sent NBI agent Rodolfo Ignacio, accompanied by investigators of the IP Manila Associates, a private investigating firm hired by Glaxo, Pfizer and Roche, to the respondents place of business in Paraaque City. There, respondent Muhammad Ateeque allegedly showed the members of the covert team samples of the medicines he was selling. Thesamples shown allegedly included imported drugs bearing the brand names of Glaxo, Pfizer and Roche, which the team found to be without the requisite registration numbers from the Bureau of Food and Drugs (BFAD) On June 9, 2002, NBI operatives, again with members of the same private investigating team, conducted an entrapment operation at the premises of SITI in Paraaque City, during which

Petitioner Glaxo moved for a reconsideration but its motion was denied by the same State Prosecutor in her subsequent resolution of February 18, 2003. From such denial, petitioner and the other pharmaceutical firms (Pfizer and Roche) went to the Secretary of Justice on separate petitions for review. In a Resolution[4] dated June 17, 2003, the Justice Secretary dismissed Glaxos petition, saying: We have examined the record and found no such error committed by the prosecutor that would justify a reversal of the assailed resolution which is in accord with the law and evidence on the matter. In yet a similarly worded Resolution[5] dated June 25, 2003, the Secretary of Justice dismissed the other petitions for review of Pfizer and Roche. Obviously displeased, Glaxo went to the CA on a petition for certiorari in CA-G.R. SP No. 78646, imputing grave abuse of discretion on the part of the DOJ Secretary in denying its petition for review of the dismissal resolution, supra, of Senior State Prosecutor Leah C. Tanodra-Armamento. As stated at the outset hereof, the CA, in the herein assailed Decision[6] dated October 28, 2004, finding no grave abuse of discretion on the part of the Secretary of Justice, denied due course to Glaxos petition and accordingly dismissed the same, thus: WHEREFORE, premises considered, the instant petition is hereby DENIED DUE COURSE and DISMISSED. SO ORDERED. In time, petitioner moved for a reconsideration but its motion was denied by the same court in its Resolution[7] of January 24, 2005. Undaunted, petitioner is now with this Court via the present recourse, raising substantially the same issue of whether courts may review findings of the prosecutor on the existence of probable cause and substitute their own judgment for that of the latter in determining sufficiency of evidence to establish guilt. We DENY.

Well-settled is the rule that the courts will not interfere in the conduct of preliminary investigations or reinvestigations and leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of the corresponding complaint or information against an offender. [8] In fact, the prosecutors findings on the matter are not subject to review by the courts unless shown to have been made with grave abuse of discretion.[9] And by it is meant that the power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility, patent and gross enough as to amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law.[10] Here, we failed to discern such abuse. For, as found by Senior State Prosecutor Leah C. Tanodra-Armamento in her dismissal Resolution[11] of January 14, 2003, which was duly sustained by the Secretary of Justice in his uniformly worded resolutions of June 17, 2003 and June 25, 2003 which denied the separate petitions for review filed by petitioner Glaxo and others: To prove their charge, complainants presented the certification of their employees (sic) alleging that the drugs purchased from respondent on June 9, 2002 do not contain their companys certificate of product registration issued by BFAD. They, however, admitted that respondents are into parallel importation of the drugs sold which is now being encourage by the government to bring down the prices of medicines. In fact, they failed to show that such act is prohibited by law. Respondents, to prove the legitimacy of their business, presented a certification from BFAD that they are duly licensed drug importer/distributor/wholesaler at the same time that the alleged purchase was made by the complainants. In addition, respondents presented a certification of BFAD LICD Chief Atty. Ireneo M. Galicia that Sahar International Trading,

Inc. has no pending violation with BFAD as of July 30, 2002 or after the alleged purchase on June 9, 2002. Clearly, the said transaction was not deemed as violation by BFAD, the government agency mandated to implement R.A. 3720 and R.A. 8203. Consequently, the affidavits filed by complaint (sic) failed to sustain any indictment in the light of respondents evidence. Worse, it is not consistent with the truth. Ateeque presented his passport and the Bureau of Immigration computer print-out of his arrival on May 29, 2002 to disprove that Ms. Legaspi was able to talk to him on May 28, 2002 and placed an order for the drugs to be purchased. He also presented the affidavit of Mr. Sangca, a friend with whom his family had dinner during the alleged entrapment operation on June 9, 2002. Further, the Articles of Incorporation of World Traders, Inc. (WTI) was also attached by respondents to disprove complainants allegation that they met at WTI premises, and to show incredulity of complainants accusation as the documents show that the corporation was created even before Ateeque was born with its office located at No. 45 Dallas Street. BF Northwest, Paraaque City, a place Ateeque had never been to. (Emphasis supplied) By the nature of his office, the investigating prosecutor is under no compulsion to file criminal information where no clear legal justification has been shown and where he is not convinced that he has the quantum of evidence to support the averments. [12] Prosecuting officers have the duty not to prosecute when, after investigation or reinvestigation, they are convinced that the evidence adduced was not sufficient to establish a prima facie case. This is as it should be. For, the deter mination of the persons to be prosecuted rests primarily with the prosecutor who is vested with discretion in the discharge of this function. Hence, the question of whether or not to dismiss a complaint is within the purview of the functions of the prosecutor and, ultimately, that of the Secretary of Justice.[13] the Absent, as here, of any clear showing of arbitrariness, Court

defers to the authority of the prosecuting arm to determin e probable cause in a preliminary investigation and shall give credence to its findings and determination. For sure, the Court is consistent in its view that the determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment of trial is an executive function exclusively of the prosecutor.[14] IN VIEW WHEREOF, the instant petition is DENIED. SO ORDERED. G.R. No. 166888 January 31, 2007 FIRST WOMENS CREDIT CORPORATION and SHIG KATAYAMA, Petitioners, vs. HON. ROMMEL O. BAYBAY, in his capacity as the ACTING PRESIDING JUDGE OF BRANCH 65, METROPOLITAN TRIAL COURT, MAKATI CITY [SIC]*, RAMON P. JACINTO, JAIME C. COLAYCO, ANTONIO P. TAYAO and GLICERIO PEREZ, Respondents. DECISION CARPIO MORALES, J.: Assailed via Petition for Review on Certiorari are the September 28, 2004 Decision1 and January 25, 2005 Order2of the Regional Trial Court (RTC) of Makati, Branch 59 affirming the July 22, 2002 Order3 of the Metropolitan Trial Court (MeTC) of Makati, Branch 65 granting the "Motion to Withdraw Informations and to Dismiss the [Criminal] Cases" filed against respondents Ramon P. Jacinto (Jacinto), Jaime C. Colayco (Colayco), Antonio P. Tayao (Tayao) and Glicerio Perez (Perez) for falsification of private document and grave coercion. First Womens Credit Corp. (the corporation), represented by stockholder and director Shig Katayama (Katayama), filed on November 12, 1997 a petition before the Securities and Exchange Commission (SEC) against the corporations officers Jacinto, Colayco, Concepcion T. Sangil (Sangil) and Asuncion Cruz (Cruz), for alleged mismanagement of the corporation. The case was docketed as SEC No. 11-97-5816.4 The SEC, in SEC Case No. 11-97-5816, created an Interim Management Committee (IMC) for the corporation by Order of November 17, 1999. The Order was upheld by the SEC en banc on July 4, 2000.

The IMC thereupon issued directives to the corporations president Antonio Tayao (Tayao) and corporate secretary and treasurer Glicerio Perez (Perez) toward the preservation of assets and records of the corporation.5 Allegedly in conspiracy with Jacinto and Colayco, Tayao and Perez defied the implementation of the SEC November 17, 1999 Order6 when IMC attempted to enter the main office of the corporation in Makati on December 3, 1999, December 29, 1999 and January 28, 2000.7 On April 6, 2000, Tayao filed a request with the Bureau of Immigration and Deportation (BID) to include Katayama in its watch list. The IMC, on April 14, 2000, later preventively suspended Tayao and Perez. Despite their preventive suspension, however, the two, allegedly in conspiracy with Jacinto and Colayco, still issued various directives/memoranda to the employees of the corporation to disobey the IMC. On May 9, 2000, the IMC dismissed Tayao and Perez.8 In two follow-up letters to the BID both dated August 1, 2000, Tayao represented himself as president of the corporation.9 Hence, the filing before the Makati City Prosecutors Office (CPO) on December 27, 2000 of criminal complaints against Jacinto, Colayco, Tayao and Perez by the corporation, represented by Katayama, for violation of the following offenses defined and punishable under the Revised Penal Code: a) Article 151 which punishes resistance and disobedience to person in authority or the agents of such person (20 counts); b) Article 154 which punishes the unlawful use of means of publication and unlawful utterances (2 counts); c) Article 172(2) which punishes falsification by private individuals and use of falsified documents (2 counts); d) Article 315, paragraph 2(a) Estafa by falsely pretending to be officers of FWCC (23 counts).10 Jacinto, Colayco, Tayao and Perez (hereafter respondents) denied the charges.11 They claimed that the SEC Order creating the IMC was pending appeal at the Court of Appeals; 12 that there was no danger that the assets of the corporation would be dissipated or lost at the time the alleged criminal acts were committed; and that Katayama had no authority to institute the criminal charges in

behalf of the corporation as he was merely a minority stockholder, aside from his lack of personal knowledge of the circumstances giving rise to the filing of the charges.13 The Investigating Prosecutor, by Resolution of August 28, 2001, found probable cause to hale respondents into court for falsification of private documents under Article 172(2), and three informations for grave coercion against private respondent Tayao and three unnamed security guards. The decretal text of the resolution reads: Wherefore, finding sufficient evidence to charge respondents Ramon P. Jacinto, Jaime P. Colayco, Antonio P. Tayao and Glicerio Perez for the offense of Falsification of Private Document under Art. 172(2) on two (2) counts and, only as against respondent Tayao with three (3) other unnamed security guards, three (3) counts of Grave Coercion under Art. 286, both of the Revised Penal Code, but insufficient evidence for the offenses defined under Articles 151, 154 and 315, 2(a) of the Revised Penal Code as against all four (4) respondents, the undersigned respectfully recommends that the charges for the latter three (3) offenses as against all respondents be dismissed for insufficiency of evidence as these are dismissed upon approval but the attached informations be approved for filing in court. x x x x14 In finding probable cause, the Investigating Prosecutor declared: On the other hand, there is sufficient evidence for the charge of Falsification of Private Document as defined in Art. 172 (2) against respondents as the two (2) letters addressed to the Bureau of Immigration and Deportation both dated 1 August 2000 but the first, received at the BID on 10 August 2000 and the second, on 21 August 2000, clearly showed that respondents colluded and connived with each other in making it appear in the said letters that respondent Tayao was the President of complainant FWCC when as early as 9 May 2000, he has already been dismissed as officer of the said corporation by the Management Committee. It has also been shown that as a result of these two (2) letters, complainant Katayama suffered not only pecuniary and material damage but also damage to his honor as well. Finally, sufficient evidence has shown that respondent Tayao and three (3) other armed security guards whose identities can be established later, without authority of law, with the use of physical force and threats, prevented the Management committee from implementing their legal mandate on 3 December 1999, on 29 December 1999 and 28 January 2000, by refusing them entry into the FWCCs main office at 51 Polaris St., Makati City. They may

therefore be held liable for Grave Coercion under Art. 286 of the Revised Penal Code. No evidence, however, has been presented showing the other respondents culpable participation in these three (3) aforementioned instances.15 (Underscoring supplied) The City Prosecutor approved the Investigating Prosecutors resolution. Respondents appealed the CPO resolution to the Department of Justice (DOJ) via Petition for Review. The DOJ, by Resolution16 dated April 29, 2002, reversed the Resolution of the CPO which was directed to move for the withdrawal of the information for falsification of private document against private respondents and the informations for grave coercion against respondent Tayao and the three John Does. The corporation and Katayama (hereafter petitioners) moved to reconsider the DOJ April 29, 2002 Resolution but it was denied by Resolution of September 24, 2002.17 Petitioners thereupon assailed the DOJ Resolutions before the Court of Appeals via petition for certiorari.18 In the meantime, respondents filed with Branch 65, MeTC Makati where the criminal cases were raffled, a "Motion to Withdraw Informations and to Dismiss the Cases"19 to which motion petitioners filed their Opposition.20 By Order21 of July 22, 2002, Acting Presiding Judge Rommel Baybay found respondents motion to be well-taken and accordingly dismissed the criminal cases. Petitioners Motion for Reconsideration of the July 22, 2002 Order of the trial court was denied by Order22 of December 3, 2002. Petitioners assailed the trial courts orders via certiorari with the RTC of Makati which Branch 59 thereof dismissed by Decision23 of September 28, 2004 for lack of merit. In denying their petition for certiorari, the RTC held that the grounds relied upon by petitioners were mere errors of judgment, not necessarily of jurisdiction, and there being other legal remedies to question the assailed orders, e.g., the filing of a Notice of Appeal, petitioners petition for certiorari would not lie.24 Hence, the instant petition for review on certiorari filed directly with this Court, petitioners contending that IN ISSUING THE ASSAILED RTC DECISION AND ASSAILED RTC ORDER, THE REGIONAL TRIAL COURT DECIDED NOT IN ACCORDANCE WITH LAW AND APPLICABLE JURISPRUDENCE, IN THAT:

A. PURSUANT TO PEREZ V. HAGONOY RURAL BANK AND DEE V. COURT OF APPEALS, PETITIONERS ONLY REMEDY FROM THE ASSAILED MTC ORDERS WAS A PETITION FOR CERTIORARI AND NOT AN ORDINARY APPEAL. B. CONTRARY TO ROBERTS V. COURT OF APPEALS, THE METROPOLITAN TRIAL COURT FAILED TO DISCHARGE ITS JUDICIAL MANDATE TO MAKE AN INDEPENDENT EVALUATION AND ASSESSMENT OF THE EVIDENCE ON RECORD. C. AN INDEPENDENT EVALUATION AND ASSESSMENT OF THE EVIDENCE ON RECORD ESTABLISHES THE EXISTENCE OF PROBABLE CAUSE THAT RESPONDENTS COMMITTED FALSIFICATION OF PRIVATE DOCUMENTS AND GRAVE COERCION.25 (Italics in the original) It is settled that the determination of whether probable cause exists to warrant the prosecution in court of an accused should be consigned and entrusted to the Department of Justice, as reviewer of the findings of public prosecutors.26 The courts duty in an appropriate case is confined to a determination of whether the assailed executive or judicial determination of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final,27 albeit in extreme cases, exceptional circumstances have been recognized.28 The rule is also consistent with this Courts policy of non-interference in the conduct of preliminary investigations, and of leaving to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for the filing of an information against a supposed offender.29 While prosecutors are given sufficient latitude of discretion in the determination of probable cause, their findings are subject to review by the Secretary of Justice.30 Once a complaint or information is filed in court, however, any disposition of the case, e.g., its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the Court.31 In thus resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of evidence or for lack of probable cause, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime was committed

or that the evidence in the possession of the public prosecutor is insufficient to support a judgment of conviction of the accused.32 It is its bounden duty to independently assess the merits of the motion. For while the ruling of the Secretary of Justice is persuasive, it is not binding on courts.33 As to what mode of review petitioners may avail of after a court grants an accuseds motion to withdraw information and/or to dismiss the case, Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure instructs: "Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy." In availing of the remedy of certiorari before the RTC, petitioners claim that they had no plain, adequate and speedy remedy to question the MeTCs grant of the motion. The records of the cases show, however, that the motion was granted by the MeTC before respondents were arraigned. Thus, the prohibition against appeal in case a criminal case is dismissed as the accused would be placed in double jeopardy does not apply. Petitioners not having availed of the proper remedy to assail the dismissal of the cases, the dismissal had become final and executory. On this score alone, the present petition must fail. Technicality aside, the petition just the same fails. Petitioners assertion that the trial court failed to comply with its mandate to make an independent assessment and evaluation of the evidence before granting the motion does not persuade. The trial court did stress in its December 3, 2002 Order 34 denying the motion for reconsideration that it was bound to make, as it did, a preliminary finding independently of those of the Secretary of Justice. The trial judge need not state with specificity or make a lengthy exposition of the factual and legal foundation relied upon by him to arrive at his decision. It suffices that upon his own personal evaluation of the evidence and the law involved in the case, he is convinced that there is no probable cause to indict the accused. The trial judges grant of the motion after his independent finding that there was indeed lack of probable cause to indict respondents should not then be brushed aside absent any evidence showing that he overlooked relevant and material facts which, if considered, would glaringly point to the presence of probable cause. WHEREFORE, the petition is DENIED.

SO ORDERED.

G.R. No. 144692

January 31, 2005

CELSA P. ACUA, petitioner, vs. DEPUTY OMBUDSMAN FOR LUZON, PEDRO PASCUA and RONNIE TURLA, (Angeles City National Trade School), respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari1 of the Resolution dated 4 April 2000 and the Order dated 19 June 2000 of the Deputy Ombudsman for Luzon. The 4 April 2000 Resolution dismissed for lack of probable cause the complaint for perjury of petitioner Celsa P. Acua against respondents Pedro Pascua and Ronnie Turla. The 19 June 2000 Order denied the motion for reconsideration. The Facts Petitioner Celsa P. Acua ("petitioner") is a former teacher of the Angeles City National Trade School ("ACNTS") in Angeles City, Pampanga. Respondent Pedro Pascua ("respondent Pascua") was ACNTS Officer-In-Charge while respondent Ronnie Turla ("respondent Turla") was a member of its faculty.2 On 13 July 1998, a certain Erlinda Yabut ("Yabut"), another ACNTS teacher, together with other school personnel, requested a dialogue with respondent Pascua on some unspecified matter. Respondent Pascua agreed to the request and the meeting took place on 16 July 1998. Respondent Turla attended the meeting upon respondent Pascuas directive. Petitioner, whom Yabut apparently invited, also attended the meeting. As an offshoot to an incident during the 16 July 1998 meeting, petitioner charged respondent Pascua with misconduct ("OMBADM-1-99-0387") and with violation of Article 1313 of the Revised Penal Code ("OMB 1-99-903") before the Office of the Ombudsman ("Ombudsman").4 In his sworn counter-affidavit in OMB-ADM-1-990387, respondent Pascua alleged, among others, that: (1) OMBADM-1-99-0387 is a "rehash and a duplication with a slight deviation of fact" of an administrative case pending with the Department of Education, Culture and Sports ("DECS") which petitioner and Yabut earlier filed against him and (2) Yabut had no authority to invite to the 16 July 1998 meeting a non-employee of ACNTS like petitioner considering that he (respondent Pascua) was the one who called the meeting.5 Respondent Pascua also

submitted a sworn statement of respondent Turla confirming that respondent Pascua and not Yabut called the 16 July 1998 meeting.6 The Ombudsman dismissed OMB-ADM-1-99-0387 and OMB 1-990903. Contending that private respondents perjured themselves in their sworn statements in OMB-ADM-1-99-0387, petitioner charged private respondents with perjury ("OMB 1-99-2467") before the office of the Deputy Ombudsman for Luzon ("public respondent"). Petitioner alleged that private respondents were liable for perjury because: (1) the complaint she and Yabut filed against respondent Pascua before the Civil Service Commission, later endorsed to the DECS, was not "the same" as her complaint in OMB-ADM-1-99-0387 and (2) it was Yabut and not respondent Pascua who called the 16 July 1998 meeting.7 Private respondents denied the charge against them and sought the dismissal of the complaint.8 The Ruling of the Public Respondent Public respondent dismissed petitioners complaint in his 4 April 2000 Resolution,9 thus: Upon careful evaluation of the case record, we find no evidence to indict respondents for perjury. xxxx It could not be established by the evidence on record that it was Erlinda Yabut who called the meeting on July 16, 1998 and invited complainant. Annex "B-1" xxx of the complaint is the letter of Erlinda Yabut to Dr. Pedro Pascua, dated July 13, 1998, which shows that Ms. Yabut was requesting respondent to have a dialogue (sic). The letter states: "We, the undersigned would like to request your good office to allow us to have a dialogue on Thursday, July 1[6], to once and for all ventilate our complaints/observations and also listen to the rebuttal of the other side. It is the desire of everybody who attended the meeting last time that whatever is the outcome of this confrontation will be the basis of the next appropriate step. We would like to request the incoming Administrator or somebody from the DECS to act as moderator." Pursuant to such circumstance, respondent Pascua stated, among others, in his counter-affidavit in OMB-ADM-1-99-0387 that:

"5. Be that as it may, I vehemently deny the charge that I prevented Complainant Celsa Acu[]a from testifying against Mrs. Amelia Yambao on July 16, 1998 the truth of the matter being that there was no hearing or investigation conducted or called by the undersigned on said date but a dialogue among the teachers of Angeles City National Trade School which I previously headed. Mrs. Acu[]a at that time was not a teacher to attend the said dialogue, thus I stated openly on said occasion that I will not start the meeting if there are outsiders, and Mr. ROGELIO GUTIERREZ asked herein Complainant to step out of the room so we could start the dialogue, xxx; 6. I also deny the charge that she was invited by Mrs. Erlinda Yabut, co-complainant of hers in the DECS Administrative case, because I was the one who called for that dialogue and not Mrs. Yabut, thus I never gave any authority to anyone to invite any person who was not a member of the school faculty or an employee thereof." Clearly, the letter of Ms. Yabut and the aforequoted counteraffidavit of respondent Pascua belie the commission of perjury since there was no deliberate assertion of falsehood on a material matter. Respondent Ronnie Turla could not likewise be indicted for the crime charged. Since it was respondent Pascua who called him to that meeting, it would be truthful of him to state that way. There was also no willful and deliberate assertion of falsehood on the part of respondent Ronnie Turla.10 Petitioner sought reconsideration but public respondent denied her motion in the 19 June 2000 Order. Hence, petitioner filed this petition. Petitioner contends that public respondent committed grave abuse of discretion in dismissing her complaint for lack of probable cause.11 Public respondent, in his Comment, maintains that he did not commit grave abuse of discretion in dismissing petitioners complaint in OMB 1-99-2467.12 In their Comment, private respondents claim that petitioner filed this petition out of time. Hence, this petition should be dismissed outright. On the merits, private respondents submit that public respondent correctly dismissed the perjury charge against them.13 In her Reply, petitioner counters that she timely filed her petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure ("Rule 65").14 The Issues

The petition raises these issues: 1. Whether petitioner filed the petition on time; and 2. Whether public respondent committed grave abuse of discretion in dismissing the complaint in OMB 1-99-2467 for lack of probable cause. The Ruling of the Court The petition, while filed on time, has no merit. The Petition was Filed on Time Private respondents contend that petitioner filed this petition beyond the ten-day period provided in Section 27 of Republic Act No. 6770.15 Section 27 states in part: Effectivity and Finality of Decisions. xxxx In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (Emphasis supplied) The contention has no merit. Section 27 is no longer in force because this Court in Fabian v. Desierto16 declared it unconstitutional for expanding the Courts jurisdiction without its consent in violation of Article VI, Section 30 of the Constitution. Furthermore, Section 27 relates only to appeals from rulings of the Ombudsman in administrative disciplinary cases. It does not apply to appeals from the Ombudsmans rulings in criminal cases such as the present case.17 The remedy of an aggrieved party in criminal complaints before the Ombudsman is to file with this Court a petition for certiorari under Rule 65. Thus, we held in Tirol, Jr. v. Del Rosario:18 The Ombudsman Act specifically deals with the remedy of an aggrieved party from orders, directives and decisions of the Ombudsman in administrative disciplinary cases. As we ruled in Fabian, the aggrieved party [in administrative cases] is given the right to appeal to the Court of Appeals. Such right of appeal is not granted to parties aggrieved by orders and decisions of the Ombudsman in criminal cases, like finding probable cause to indict accused persons. However, an aggrieved party is not without recourse where the finding of the Ombudsman xxx is tainted with grave abuse of discretion, amounting to lack [or] excess of jurisdiction. An

aggrieved party may file a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. (Emphasis supplied) Petitioner precisely availed of such remedy when she filed this petition for certiorari under Rule 65 alleging that public respondent gravely abused his discretion in dismissing her complaint against private respondents. Under Section 4 of Rule 65, as amended, petitioner had 60 days from her receipt of the 19 June 2000 Order within which to file this petition. Petitioner received a copy of the 19 June 2000 Order on 13 July 2000. Thus, petitioner had until 11 September 2000 within which to file this petition. Petitioner did so on 11 August 2000. Hence, petitioner filed this petition on time. The Public Respondent did not Gravely Abuse His Discretion in Dismissing OMB 1-99-2467 We reiterate this Courts policy of non-interference with the Ombudsmans exercise of his constitutionally mandated prosecutory powers.19 We explained the reason for such policy in Ocampo, IV v. Ombudsman:20 The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant. The Court, in the present case, finds no reason to deviate from this long-standing policy. Petitioner contends that public respondent committed grave abuse of discretion in dismissing her complaint for perjury for lack of probable cause. The contention is untenable. Probable cause, as used in preliminary investigations, is defined as the "existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."21 The elements of perjury under Article 18322 of the Revised Penal Code are: (a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer,

authorized to receive and administer oath; (c) that in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and, (d) that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.23 (Emphasis supplied) Public respondent correctly ruled that the first and third elements are absent here in that private respondents statements in their counter-affidavits in OMB-ADM-1-99-0387 were not material to that case nor do they constitute willful and deliberate assertion of falsehood. On the Element of Materiality In prosecutions for perjury, a matter is material if it is the "main fact which was the subject of the inquiry, or any circumstance which tends to prove that fact xxx."24 To hold private respondents liable, there must be evidence that their assailed statements in OMB-ADM-1-99-0387 were the subject of inquiry in that case. Petitioner has presented no such evidence. The records are hardly helpful, as petitioner did not furnish the Court a copy of her complaint in OMB-ADM-1-99-0387. What is before the Court is a portion of respondent Pascuas counter-affidavit in that case as quoted by public respondent in his 4 April 2000 Resolution. Admittedly, some inference is possible from this quoted material, namely, that the basis of petitioners complaint in OMB-ADM-1-99-0387 is that respondent Pascua prevented her from taking part in the 16 July 1998 meeting. However, it would be improper for the Court to rely on such inference because the element of materiality must be established by evidence and not left to inference.25 At any rate, petitioners complaint for perjury will still not prosper because respondent Pascuas statement that OMB-ADM-1-990387 is significantly the same as petitioners and Yabuts administrative complaint against respondent Pascua before the DECS is immaterial to the inferred issue. On the Element of Deliberate Assertion of Falsehood The third element of perjury requires that the accused willfully and deliberately assert a falsehood. Good faith or lack of malice is a valid defense.26 Here, the Court finds that respondent Pascuas statement in his counter-affidavit in OMB-ADM-1-99-0387 that he called the 16 July 1998 meeting does not constitute a deliberate assertion of falsehood. While it was Yabut and some unidentified ACNTS personnel who requested a dialogue with respondent Pascua, it was respondent Pascuas consent to their request which

led to the holding of the meeting. Thus, respondent Pascuas statement in question is not false much less malicious. It is a good faith interpretation of events leading to the holding of the meeting. Regarding respondent Pascuas allegation in his counter-affidavit in OMB-ADM-1-99-0387 that petitioners complaint was a mere "rehash and duplication with a slight deviation of fact" of the DECS administrative case petitioner and Yabut filed against respondent Pascua, petitioner has not shown why this is false. Petitioner again did not furnish the Court a copy of her and Yabuts complaint with the DECS. Respondent Turlas statement in OMB-ADM-1-99-0387 that respondent Pascua called the 16 July 1998 meeting was a mere reiteration of what respondent Pascua told him. Consequently, it was correct for public respondent to hold that since respondent Turla merely repeated what he heard from respondent Pascua, he could not be held liable for making a false and malicious statement. There is grave abuse of discretion where power is exercised in arbitrary or despotic manner by reason of passion or hostility. The abuse must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty or to act at all in contemplation of law.27 No such conduct can be imputed on public respondent. Public respondent disposed of petitioners complaint consistent with applicable law. WHEREFORE, we DISMISS the petition. The Resolution dated 4 April 2000 and the Order dated 19 June 2000 of respondent Deputy Ombudsman for Luzon are AFFIRMED. SO ORDERED. Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.