CASES FOR DIGEST by Students of 2D

1. Phil. Rabbit Bus Lines Inc. vs. People GR No. 147703, April 14, 2004

[G.R. No. 147703. April 14, 2004]

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:

When the accused-employee absconds or jumps bail, the judgment meted

out becomes final and executory. The employer cannot defeat the finality of
the judgment by filing a notice of appeal on its own behalf in the guise of
asking for a review of its subsidiary civil liability. Both the primary civil liability
of the accused-employee and the subsidiary civil liability of the employer are
carried in one single decision that has become final and executory.
The Case
Before this Court is a Petition for Review under Rule 45 of the Rules of
Court, assailing the March 29, 2000 and the March 27, 2001 Resolutions of
the Court of Appeals (CA) in CA-GR CV No. 59390. Petitioners appeal from
the judgment of the Regional Trial Court (RTC) of San Fernando, La Union in
Criminal Case No. 2535 was dismissed in the first Resolution as follows:
[1]

[2]

[3]

WHEREFORE, for all the foregoing, the motion to dismiss is GRANTED and the
appeal is ordered DISMISSED.
[4]

The second Resolution denied petitioners Motion for Reconsideration.

[5]

The Facts
The facts of the case are summarized by the CA in this wise:
On July 27, 1994, accused [Napoleon Roman y Macadangdang] was found guilty and
convicted of the crime of reckless imprudence resulting to triple homicide, multiple

physical injuries and damage to property and was sentenced to suffer the penalty of
four (4) years, nine (9) months and eleven (11) days to six (6) years, and to pay
damages as follows:
a.

to pay the heirs of JUSTINO TORRES the sum of P50,000.00 as

indemnity for his death, plus the sum of P25,383.00, for funeral
expenses, his unearned income for one year atP2,500.00 a
month, P50,000.00 as indemnity for the support of Renato Torres, and
the further sum of P300,000.00 as moral damages;

b.

to the heirs of ESTRELLA VELERO, the sum of P50,000.00 as

indemnity for her death, the sum of P237,323.75 for funeral expenses,
her unearned income for three years atP45,000.00 per annum, and the
further sum of P1,000,000.00 as moral damages and P200,000.00 as
attorneys fees[;]

c.

to the heirs of LORNA ANCHETA, the sum of P50,000.00 as

indemnity for her death, the sum of P22,838.00 as funeral expenses, the
sum of P20,544.94 as medical expenses and her loss of income for 30
years at P1,000.00 per month, and the further sum of P100,000.00 for
moral damages;

d.

to MAUREEN BRENNAN, the sum of P229,654.00 as hospital

expenses, doctors fees of P170,000.00 for the orthopedic
surgeon, P22,500.00 for the [n]eurologist, an additional indemnity [of] at
least P150,000.00 to cover future correction of deformity of her limbs,
and moral damages in the amount of P1,000,000.00;

e.

to ROSIE BALAJO, the sum of P3,561.46 as medical

expenses, P2,000.00 as loss of income, and P25,000.00 as moral
damages;

f.

to TERESITA TAMONDONG, the sum of P19,800.47 as medical

expenses, P800.00 for loss of income, and P25,000.00 as moral
damages;

g.

to JULIANA TABTAB, the amount of P580.81 as medical

expenses, P4,600.00 as actual damages and her loss earnings
of P1,400.00 as well as moral damages in the amount ofP10,000.00;

h.

to MIGUEL ARQUITOLA, the sum of P12,473.82 as hospital

expenses, P14,530.00 as doctors fees, P1,000.00 for medicines
and P50,000.00 as moral damages;

i.

to CLARITA CABANBAN, the sum of P155.00 for medical

expenses, P87.00 for medicines, P1,710.00 as actual damages
and P5,000.00 as moral damages;

j.

to MARIANO CABANBAN, the sum of P1,395.00 for hospital

bills, P500.00 for medicine, P2,100.00 as actual damages, P1,200.00 for
loss of income and P5,000.00 as moral damages;

k.

to La Union Electric Company as the registered owner of the Toyota

Hi-Ace Van, the amount of P250,000.00 as actual damages for the cost
of the totally wrecked vehicle; to the owner of the jeepney, the amount
of P22,698.38 as actual damages;

The court further ruled that [petitioner], in the event of the insolvency of accused,
shall be liable for the civil liabilities of the accused. Evidently, the judgment against
accused had become final and executory.
Admittedly, accused had jumped bail and remained at-large. It is worth mention[ing]
that Section 8, Rule 124 of the Rules of Court authorizes the dismissal of appeal when
appellant jumps bail. Counsel for accused, also admittedly hired and provided by
[petitioner], filed a notice of appeal which was denied by the trial court. We affirmed
the denial of the notice of appeal filed in behalf of accused.
Simultaneously, on August 6, 1994, [petitioner] filed its notice of appeal from the
judgment of the trial court. On April 29, 1997, the trial court gave due course to
[petitioners] notice of appeal. On December 8, 1998, [petitioner] filed its
brief. On December 9, 1998, the Office of the Solicitor General received [a] copy of
[petitioners] brief. On January 8, 1999, the OSG moved to be excused from filing
[respondents] brief on the ground that the OSGs authority to represent People is
confined to criminal cases on appeal. The motion was however denied per Our

resolution of May 31, 1999. On March 2, 1999, [respondent]/private prosecutor filed

the instant motion to dismiss. (Citations omitted)
[6]

Ruling of the Court of Appeals

The CA ruled that the institution of a criminal case implied the institution
also of the civil action arising from the offense. Thus, once determined in the
criminal case against the accused-employee, the employers subsidiary civil
liability as set forth in Article 103 of the Revised Penal Code becomes
conclusive and enforceable.
The appellate court further held that to allow an employer to dispute
independently the civil liability fixed in the criminal case against the accusedemployee would be to amend, nullify or defeat a final judgment. Since the
notice of appeal filed by the accused had already been dismissed by the CA,
then the judgment of conviction and the award of civil liability became final
and executory. Included in the civil liability of the accused was the employers
subsidiary liability.
Hence, this Petition.

[7]

The Issues
Petitioner states the issues of this case as follows:
A.
Whether or not an employer, who dutifully participated in the defense of
its accused-employee, may appeal the judgment of conviction independently of the
accused.
B.
Whether or not the doctrines of Alvarez v. Court of Appeals (158 SCRA 57)
and Yusay v. Adil (164 SCRA 494) apply to the instant case.
[8]

There is really only one issue. Item B above is merely an adjunct to Item
A.
The Courts Ruling
The Petition has no merit.

Main Issue:
Propriety of Appeal by the Employer
Pointing out that it had seasonably filed a notice of appeal from the RTC
Decision, petitioner contends that the judgment of conviction against the
accused-employee has not attained finality. The former insists that its appeal
stayed the finality, notwithstanding the fact that the latter had jumped bail. In
effect, petitioner argues that its appeal takes the place of that of the accusedemployee.
We are not persuaded.
Appeals in Criminal Cases
Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure
states thus:
Any party may appeal from a judgment or final order, unless the accused will be
placed in double jeopardy.
Clearly, both the accused and the prosecution may appeal a criminal case,
but the government may do so only if the accused would not thereby be
placed in double jeopardy. Furthermore, the prosecution cannot appeal on
the ground that the accused should have been given a more severe penalty.
On the other hand, the offended parties may also appeal the judgment with
respect to their right to civil liability. If the accused has the right to appeal the
judgment of conviction, the offended parties should have the same right to
appeal as much of the judgment as is prejudicial to them.
[9]

[10]

[11]

Appeal by the Accused

Who Jumps Bail
Well-established in our jurisdiction is the principle that the appellate court
may, upon motion or motu proprio, dismiss an appeal during its pendency if
the accused jumps bail. The second paragraph of Section 8 of Rule 124 of
the 2000 Revised Rules of Criminal Procedure provides:

The Court of Appeals may also, upon motion of the appellee or motu proprio,
dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or
flees to a foreign country during the pendency of the appeal.
[12]

This rule is based on the rationale that appellants lose their standing in
court when they abscond. Unless they surrender or submit to the courts
jurisdiction, they are deemed to have waived their right to seek judicial relief.
[13]

Moreover, this doctrine applies not only to the accused who jumps bail
during the appeal, but also to one who does so during the trial. Justice
Florenz D. Regalado succinctly explains the principle in this wise:
x x x. When, as in this case, the accused escaped after his arraignment and during the
trial, but the trial in absentia proceeded resulting in the promulgation of a judgment
against him and his counsel appealed, since he nonetheless remained at large his
appeal must be dismissed by analogy with the aforesaid provision of this Rule [Rule
124, 8 of the Rules on Criminal Procedure]. x x x
[14]

The accused cannot be accorded the right to appeal unless they

voluntarily submit to the jurisdiction of the court or are otherwise arrested
within 15 days from notice of the judgment against them. While at large, they
cannot seek relief from the court, as they are deemed to have waived the
appeal.
[15]

[16]

Finality of a Decision
in a Criminal Case
As to when a judgment of conviction attains finality is explained in Section
7 of Rule 120 of the 2000 Rules of Criminal Procedure, which we quote:
A judgment of conviction may, upon motion of the accused, be modified or set aside
before it becomes final or before appeal is perfected. Except where the death penalty
is imposed, a judgment becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally satisfied or served, or when
the accused has waived in writing his right to appeal, or has applied for probation.

In the case before us, the accused-employee has escaped and refused to
surrender to the proper authorities; thus, he is deemed to have abandoned his
appeal. Consequently, the judgment against him has become final and
executory.
[17]

Liability of an Employer
in a Finding of Guilt
Article 102 of the Revised Penal Code states the subsidiary civil liabilities
of innkeepers, as follows:
In default of the persons criminally liable, innkeepers, tavernkeepers, and any other
persons or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general
or special police regulation shall have been committed by them or their employees.
Innkeepers are also subsidiary liable for restitution of goods taken by robbery or theft
within their houses from guests lodging therein, or for payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the
person representing him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such innkeeper or his representative
may have given them with respect to the care and vigilance over such goods. No
liability shall attach in case of robbery with violence against or intimidation of
persons unless committed by the innkeepers employees.
Moreover, the foregoing subsidiary liability applies to employers, according
to Article 103 which reads:
The subsidiary liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or employees in
the discharge of their duties.
Having laid all these basic rules and principles, we now address the main
issue raised by petitioner.
Civil Liability Deemed Instituted

in the Criminal Prosecution

At the outset, we must explain that the 2000 Rules of Criminal Procedure
has clarified what civil actions are deemed instituted in a criminal prosecution.
Section 1 of Rule 111 of the current Rules of Criminal Procedure provides:
When a criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with the criminal action
unless the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.
x x x

xxx

x x x

Only the civil liability of the accused arising from the crime charged is
deemed impliedly instituted in a criminal action, that is, unless the offended
party waives the civil action, reserves the right to institute it separately, or
institutes it prior to the criminal action. Hence, the subsidiary civil liability of
the employer under Article 103 of the Revised Penal Code may be enforced
by execution on the basis of the judgment of conviction meted out to the
employee.
[18]

[19]

It is clear that the 2000 Rules deleted the requirement of reserving

independent civil actions and allowed these to proceed separately from
criminal actions. Thus, the civil actions referred to in Articles 32, 33, 34 and
2176 of the Civil Code shall remain separate, distinct and independent of
any criminal prosecution based on the same act. Here are some direct
consequences of such revision and omission:
[20]

[21]

[22]

[23]

1. The right to bring the foregoing actions based on the Civil Code need
not be reserved in the criminal prosecution, since they are not deemed
included therein.
2. The institution or the waiver of the right to file a separate civil action
arising from the crime charged does not extinguish the right to bring such
action.

3. The only limitation is that the offended party cannot recover more than
once for the same act or omission.
[24]

What is deemed instituted in every criminal prosecution is the civil liability

arising from the crime or delict per se (civil liability ex delicto), but not those
liabilities arising from quasi-delicts, contracts or quasi-contracts. In fact, even
if a civil action is filed separately, the ex delicto civil liability in the criminal
prosecution remains, and the offended party may -- subject to the control of
the prosecutor -- still intervene in the criminal action, in order to protect the
remaining civil interest therein.
[25]

This discussion is completely in accord with the Revised Penal Code,

which states that [e]very person criminally liable for a felony is also civilly
liable.
[26]

Petitioner argues that, as an employer, it is considered a party to the

criminal
case
and
is
conclusively
bound
by
the
outcome
thereof. Consequently, petitioner must be accorded the right to pursue the
case to its logical conclusion -- including the appeal.
The argument has no merit. Undisputedly, petitioner is not a direct party to
the criminal case, which was filed solely against Napoleon M. Roman, its
employee.
In its Memorandum, petitioner cited a comprehensive list of cases dealing
with the subsidiary liability of employers. Thereafter, it noted that none can be
applied to it, because in all th[o]se cases, the accuseds employer did not
interpose an appeal. Indeed, petitioner cannot cite any single case in which
the employer appealed, precisely because an appeal in such circumstances is
not possible.
[27]

The cases dealing with the subsidiary liability of employers uniformly

declare that, strictly speaking, they are not parties to the criminal cases
instituted against their employees. Although in substance and in effect, they
have an interest therein, this fact should be viewed in the light of their
subsidiary liability. While they may assist their employees to the extent of
[28]

supplying the latters lawyers, as in the present case, the former cannot act
independently on their own behalf, but can only defend the accused.
Waiver of Constitutional Safeguard
Against Double Jeopardy
Petitioners appeal obviously aims to have the accused-employee
absolved of his criminal responsibility and the judgment reviewed as a
whole. These intentions are apparent from its Appellants Brief filed with the
CA and from its Petition before us, both of which claim that the trial courts
finding of guilt is not supported by competent evidence.
[29]

[30]

[31]

An appeal from the sentence of the trial court implies a waiver of the
constitutional safeguard against double jeopardy and throws the whole case
open to a review by the appellate court. The latter is then called upon to
render judgment as law and justice dictate, whether favorable or unfavorable
to the appellant. This is the risk involved when the accused decides to
appeal a sentence of conviction. Indeed, appellate courts have the power to
reverse, affirm or modify the judgment of the lower court and to increase or
reduce the penalty it imposed.
[32]

[33]

[34]

If the present appeal is given course, the whole case against the accusedemployee becomes open to review. It thus follows that a penalty higher than
that which has already been imposed by the trial court may be meted out to
him. Petitioners appeal would thus violate his right against double jeopardy,
since the judgment against him could become subject to modification without
his consent.
We are not in a position to second-guess the reason why the accused
effectively waived his right to appeal by jumping bail. It is clear, though, that
petitioner may not appeal without violating his right against double jeopardy.
Effect of Absconding
on the Appeal Process

Moreover, within the meaning of the principles governing the prevailing

criminal procedure, the accused impliedly withdrew his appeal by jumping bail
and thereby made the judgment of the court below final. Having been a
fugitive from justice for a long period of time, he is deemed to have waived his
right to appeal. Thus, his conviction is now final and executory. The Court
in People v. Ang Gioc ruled:
[35]

[36]

There are certain fundamental rights which cannot be waived even by the accused
himself, but the right of appeal is not one of them. This right is granted solely for the
benefit of the accused. He may avail of it or not, as he pleases. He may waive it either
expressly or by implication. When the accused flees after the case has been submitted
to the court for decision, he will be deemed to have waived his right to appeal from
the judgment rendered against him. x x x.
[37]

By fleeing, the herein accused exhibited contempt of the authority of the

court and placed himself in a position to speculate on his chances for a
reversal. In the process, he kept himself out of the reach of justice, but hoped
to render the judgment nugatory at his option. Such conduct is intolerable
and does not invite leniency on the part of the appellate court.
[38]

[39]

Consequently, the judgment against an appellant who escapes and who

refuses to surrender to the proper authorities becomes final and executory.
[40]

Thus far, we have clarified that petitioner has no right to appeal the
criminal case against the accused-employee; that by jumping bail, he has
waived his right to appeal; and that the judgment in the criminal case against
him is now final.
Subsidiary Liability
Upon Finality of Judgment
As a matter of law, the subsidiary liability of petitioner now
accrues. Petitioner argues that the rulings of this Court in Miranda v. Malate
Garage & Taxicab, Inc., Alvarez v. CA and Yusay v. Adil do not apply to
the present case, because it has followed the Courts directive to the
employers in these cases to take part in the criminal cases against their
[41]

[42]

[43]

employees. By participating in the defense of its employee, herein petitioner

tries to shield itself from the undisputed rulings laid down in these leading
cases.
Such posturing is untenable. In dissecting these cases on subsidiary
liability, petitioner lost track of the most basic tenet they have laid down -- that
an employers liability in a finding of guilt against its accused-employee is
subsidiary.
Under Article 103 of the Revised Penal Code, employers are subsidiarily
liable for the adjudicated civil liabilities of their employees in the event of the
latters insolvency. The provisions of the Revised Penal Code on subsidiary
liability -- Articles 102 and 103 -- are deemed written into the judgments in the
cases to which they are applicable. Thus, in the dispositive portion of its
decision, the trial court need not expressly pronounce the subsidiary liability of
the employer.
[44]

[45]

In the absence of any collusion between the accused-employee and the

offended party, the judgment of conviction should bind the person who is
subsidiarily liable. In effect and implication, the stigma of a criminal
conviction surpasses mere civil liability.
[46]

[47]

To allow employers to dispute the civil liability fixed in a criminal case

would enable them to amend, nullify or defeat a final judgment rendered by a
competent court. By the same token, to allow them to appeal the final
criminal conviction of their employees without the latters consent would also
result in improperly amending, nullifying or defeating the judgment.
[48]

The decision convicting an employee in a criminal case is binding and

conclusive upon the employer not only with regard to the formers civil liability,
but also with regard to its amount. The liability of an employer cannot be
separated from that of the employee.
[49]

Before the employers subsidiary liability is exacted, however, there must

be adequate evidence establishing that (1) they are indeed the employers of
the convicted employees; (2) that the former are engaged in some kind of
industry; (3) that the crime was committed by the employees in the discharge

of their duties; and (4) that the execution against the latter has not been
satisfied due to insolvency.
[50]

The resolution of these issues need not be done in a separate civil

action. But the determination must be based on the evidence that the
offended party and the employer may fully and freely present. Such
determination may be done in the same criminal action in which the
employees liability, criminal and civil, has been pronounced; and in a hearing
set for that precise purpose, with due notice to the employer, as part of the
proceedings for the execution of the judgment.
[51]

Just because the present petitioner participated in the defense of its

accused-employee does not mean that its liability has transformed its nature;
its liability remains subsidiary. Neither will its participation erase its subsidiary
liability. The fact remains that since the accused-employees conviction has
attained finality, then the subsidiary liability of the employer ipso
facto attaches.
According to the argument of petitioner, fairness dictates that while the
finality of conviction could be the proper sanction to be imposed upon the
accused for jumping bail, the same sanction should not affect it. In effect,
petitioner-employer splits this case into two: first, for itself; and second, for its
accused-employee.
The untenability of this argument is clearly evident. There is only one
criminal case against the accused-employee. A finding of guilt has both
criminal and civil aspects. It is the height of absurdity for this single case to be
final as to the accused who jumped bail, but not as to an entity whose liability
is dependent upon the conviction of the former.
The subsidiary liability of petitioner is incidental to and dependent on the
pecuniary civil liability of the accused-employee. Since the civil liability of the
latter has become final and enforceable by reason of his flight, then the
formers subsidiary civil liability has also become immediately
enforceable. Respondent is correct in arguing that the concept of subsidiary
liability is highly contingent on the imposition of the primary civil liability.

No Deprivation
of Due Process
As to the argument that petitioner was deprived of due process, we
reiterate that what is sought to be enforced is the subsidiary civil liability
incident to and dependent upon the employees criminal negligence. In other
words, the employer becomes ipso facto subsidiarily liable upon the conviction
of the employee and upon proof of the latters insolvency, in the same way
that acquittal wipes out not only his primary civil liability, but also his
employers subsidiary liability for his criminal negligence.
[52]

It should be stressed that the right to appeal is neither a natural right nor a
part of due process. It is merely a procedural remedy of statutory origin, a
remedy that may be exercised only in the manner prescribed by the provisions
of law authorizing such exercise. Hence, the legal requirements must be
strictly complied with.
[53]

[54]

[55]

It would be incorrect to consider the requirements of the rules on appeal

as merely harmless and trivial technicalities that can be discarded. Indeed,
deviations from the rules cannot be tolerated. In these times when court
dockets are clogged with numerous litigations, such rules have to be followed
by parties with greater fidelity, so as to facilitate the orderly disposition of
those cases.
[56]

[57]

[58]

After a judgment has become final, vested rights are acquired by the
winning party. If the proper losing party has the right to file an appeal within
the prescribed period, then the former has the correlative right to enjoy the
finality of the resolution of the case.
[59]

In fact, petitioner admits that by helping the accused-employee, it

participated in the proceedings before the RTC; thus, it cannot be said that the
employer was deprived of due process. It might have lost its right to appeal,
but it was not denied its day in court. In fact, it can be said that by jumping
bail, the accused-employee, not the court, deprived petitioner of the right to
appeal.
[60]

All told, what is left to be done is to execute the RTC Decision against the
accused. It should be clear that only after proof of his insolvency may the
subsidiary liability of petitioner be enforced. It has been sufficiently proven
that there exists an employer-employee relationship; that the employer is
engaged in some kind of industry; and that the employee has been adjudged
guilty of the wrongful act and found to have committed the offense in the
discharge of his duties. The proof is clear from the admissions of petitioner
that [o]n 26 August 1990, while on its regular trip from Laoag to Manila,
a passenger bus owned by petitioner, being then operated by petitioners
driver, Napoleon Roman, figured in an accident in San Juan, La Union x x
x. Neither does petitioner dispute that there was already a finding of guilt
against the accused while he was in the discharge of his duties.
[61]

WHEREFORE, the Petition is hereby DENIED, and

Resolutions AFFIRMED. Costs against petitioner.

the

assailed

2. Cruz vs. Mina GR. No. 154207 April 27, 2007

G.R. No. 154207

April 27, 2007

FERDINAND A. CRUZ, Petitioner,

vs.
ALBERTO MINA, HON. ELEUTERIO F. GUERRERO and HON. ZENAIDA
LAGUILLES, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court, grounded on pure
questions of law, with Prayer for Preliminary Injunction assailing the Resolution dated May 3, 2002
promulgated by the Regional Trial Court (RTC), Branch 116, Pasay City, in Civil Case No. 02-0137,
which denied the issuance of a writ of preliminary injunction against the Metropolitan Trial Court
(MeTC), Branch 45, Pasay City, in Criminal Case No. 00-1705; 1 and the RTCs Order dated June 5,
2002 denying the Motion for Reconsideration. No writ of preliminary injunction was issued by this
Court.
The antecedents:

On September 25, 2000, Ferdinand A. Cruz (petitioner) filed before the MeTC a formal Entry of
Appearance, as private prosecutor, in Criminal Case No. 00-1705 for Grave Threats, where his
father, Mariano Cruz, is the complaining witness.
The petitioner, describing himself as a third year law student, justifies his appearance as private
prosecutor on the bases of Section 34 of Rule 138 of the Rules of Court and the ruling of the Court
En Banc in Cantimbuhan v. Judge Cruz, Jr.2 that a non-lawyer may appear before the inferior courts
as an agent or friend of a party litigant. The petitioner furthermore avers that his appearance was
with the prior conformity of the public prosecutor and a written authority of Mariano Cruz appointing
him to be his agent in the prosecution of the said criminal case.
However, in an Order dated February 1, 2002, the MeTC denied permission for petitioner to appear
as private prosecutor on the ground that Circular No. 19 governing limited law student practice in
conjunction with Rule 138-A of the Rules of Court (Law Student Practice Rule) should take
precedence over the ruling of the Court laid down inCantimbuhan; and set the case for continuation
of trial.3
On February 13, 2002, petitioner filed before the MeTC a Motion for Reconsideration seeking to
reverse the February 1, 2002 Order alleging that Rule 138-A, or the Law Student Practice Rule,
does not have the effect of superseding Section 34 of Rule 138, for the authority to interpret the rule
is the source itself of the rule, which is the Supreme Court alone.
In an Order dated March 4, 2002, the MeTC denied the Motion for Reconsideration.
On April 2, 2002, the petitioner filed before the RTC a Petition for Certiorari and Mandamus with
Prayer for Preliminary Injunction and Temporary Restraining Order against the private respondent
and the public respondent MeTC.
After hearing the prayer for preliminary injunction to restrain public respondent MeTC Judge from
proceeding with Criminal Case No. 00-1705 pending the Certiorari proceedings, the RTC, in a
Resolution dated May 3, 2002, resolved to deny the issuance of an injunctive writ on the ground that
the crime of Grave Threats, the subject of Criminal Case No. 00-1705, is one that can be prosecuted
de oficio, there being no claim for civil indemnity, and that therefore, the intervention of a private
prosecutor is not legally tenable.
On May 9, 2002, the petitioner filed before the RTC a Motion for Reconsideration. The petitioner
argues that nowhere does the law provide that the crime of Grave Threats has no civil aspect. And
last, petitioner cites Bar Matter No. 730 dated June 10, 1997 which expressly provides for the
appearance of a non-lawyer before the inferior courts, as an agent or friend of a party litigant, even
without the supervision of a member of the bar.
Pending the resolution of the foregoing Motion for Reconsideration before the RTC, the petitioner
filed a Second Motion for Reconsideration dated June 7, 2002 with the MeTC seeking the reversal of
the March 4, 2002 Denial Order of the said court, on the strength of Bar Matter No. 730, and a
Motion to Hold In Abeyance the Trial dated June 10, 2002 of Criminal Case No. 00-1705 pending the
outcome of the certiorari proceedings before the RTC.

On June 5, 2002, the RTC issued its Order denying the petitioners Motion for Reconsideration.
Likewise, in an Order dated June 13, 2002, the MeTC denied the petitioners Second Motion for
Reconsideration and his Motion to Hold in Abeyance the Trial on the ground that the RTC had
already denied the Entry of Appearance of petitioner before the MeTC.
On July 30, 2002, the petitioner directly filed with this Court, the instant Petition and assigns the
following errors:
I.
the respondent regional trial court abused its discretion when it resolved to deny the prayer for the
writ of injunction of the herein petitioner despite petitioner having established the necessity of
granting the writ;
II.
THE RESPONDENT TRIAL COURT ABUSED ITS DISCRETION, TANTAMOUNT TO IGNORANCE
OF THE LAW, WHEN IT RESOLVED TO DENY THE PRAYER FOR THE WRIT OF PRELIMINARY
INJUNCTION AND THE SUBSEQUENT MOTION FOR RECONSIDERATION OF THE HEREIN
PETITIONER ON THE BASIS THAT [GRAVE] THREATS HAS NO CIVIL ASPECT, FOR THE SAID
BASIS OF DENIAL IS NOT IN ACCORD WITH THE LAW;
III.
THE RESPONDENT METROPOLITAN TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED THE MOTION TO HOLD IN ABEYANCE TRIAL, WHEN WHAT WAS DENIED BY THE
RESPONDENT REGIONAL TRIAL COURT IS THE ISSUANCE OF THE WRIT OF PRELIMINARY
INJUNCTION and WHEN THE RESPONDENT REGIONAL TRIAL COURT IS YET TO DECIDE ON
THE MERITS OF THE PETITION FOR CERTIORARI;
IV.
THE RESPONDENT COURT[s] ARE CLEARLY IGNORING THE LAW WHEN THEY PATENTLY
REFUSED TO HEED TO [sic] THE CLEAR MANDATE OF THE LAPUT, CANTIMBUHAN AND
BULACAN CASES, AS WELL AS BAR MATTER NO. 730, PROVIDING FOR THE APPEARANCE
OF NON-LAWYERS BEFORE THE LOWER COURTS (MTCS).4
This Court, in exceptional cases, and for compelling reasons, or if warranted by the nature of the
issues reviewed, may take cognizance of petitions filed directly before it. 5
Considering that this case involves the interpretation, clarification, and implementation of Section 34,
Rule 138 of the Rules of Court, Bar Matter No. 730, Circular No. 19 governing law student practice
and Rule 138-A of the Rules of Court, and the ruling of the Court in Cantimbuhan, the Court takes
cognizance of herein petition.

The basic question is whether the petitioner, a law student, may appear before an inferior court as
an agent or friend of a party litigant.
The courts a quo held that the Law Student Practice Rule as encapsulated in Rule 138-A of the
Rules of Court, prohibits the petitioner, as a law student, from entering his appearance in behalf of
his father, the private complainant in the criminal case without the supervision of an attorney duly
accredited by the law school.
Rule 138-A or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. A law student who has successfully completed his 3rd
year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's
clinical legal education program approved by the Supreme Court, may appear without compensation
in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to
represent indigent clients accepted by the legal clinic of the law school.
Sec. 2. Appearance. The appearance of the law student authorized by this rule, shall be under the
direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by
the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must
be signed by the supervising attorney for and in behalf of the legal clinic.
However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the Court En Banc clarified:
The rule, however, is different if the law student appears before an inferior court, where the issues
and procedure are relatively simple. In inferior courts, a law student may appear in his personal
capacity without the supervision of a lawyer. Section 34, Rule 138 provides:
Sec. 34. By whom litigation is conducted. - In the court of a justice of the peace, a party may
conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose,
or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by
aid of an attorney, and his appearance must be either personal or by a duly authorized member of
the bar.
Thus, a law student may appear before an inferior court as an agent or friend of a party without the
supervision of a member of the bar.7 (Emphasis supplied)
The phrase "In the court of a justice of the peace" in Bar Matter No. 730 is subsequently changed to
"In the court of a municipality" as it now appears in Section 34 of Rule 138, thus: 8
SEC. 34. By whom litigation is conducted. In the Court of a municipality a party may conduct his
litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the
aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an

attorney and his appearance must be either personal or by a duly authorized member of the bar.
(Emphasis supplied)
which is the prevailing rule at the time the petitioner filed his Entry of Appearance with the MeTC on
September 25, 2000. No real distinction exists for under Section 6, Rule 5 of the Rules of Court, the
term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts.
There is really no problem as to the application of Section 34 of Rule 138 and Rule 138-A. In the
former, the appearance of a non-lawyer, as an agent or friend of a party litigant, is expressly allowed,
while the latter rule provides for conditions when a law student, not as an agent or a friend of a party
litigant, may appear before the courts.
Petitioner expressly anchored his appearance on Section 34 of Rule 138. The court a quo must have
been confused by the fact that petitioner referred to himself as a law student in his entry of
appearance. Rule 138-A should not have been used by the courts a quo in denying permission to act
as private prosecutor against petitioner for the simple reason that Rule 138-A is not the basis for the
petitioners appearance.
Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed,
irrespective of whether or not he is a law student. As succinctly clarified in Bar Matter No. 730, by
virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant,
without the supervision of a lawyer before inferior courts.
Petitioner further argues that the RTC erroneously held that, by its very nature, no civil liability may
flow from the crime of Grave Threats, and, for this reason, the intervention of a private prosecutor is
not possible.
It is clear from the RTC Decision that no such conclusion had been intended by the RTC. In denying
the issuance of the injunctive court, the RTC stated in its Decision that there was no claim for civil
liability by the private complainant for damages, and that the records of the case do not provide for a
claim for indemnity; and that therefore, petitioners appearance as private prosecutor appears to be
legally untenable.
Under Article 100 of the Revised Penal Code, every person criminally liable for a felony is also civilly
liable except in instances when no actual damage results from an offense, such as espionage,
violation of neutrality, flight to an enemy country, and crime against popular representation. 9 The
basic rule applies in the instant case, such that when a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense charged shall be deemed instituted with criminal
action, unless the offended party waives the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action.10
The petitioner is correct in stating that there being no reservation, waiver, nor prior institution of the
civil aspect in Criminal Case No. 00-1705, it follows that the civil aspect arising from Grave Threats
is deemed instituted with the criminal action, and, hence, the private prosecutor may rightfully
intervene to prosecute the civil aspect.

WHEREFORE, the Petition is GRANTED. The assailed Resolution and Order of the Regional Trial
Court, Branch 116, Pasay City are REVERSED and SET ASIDE. The Metropolitan Trial Court,
Branch 45, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Criminal
Case No. 00-1705 as a private prosecutor under the direct control and supervision of the public
prosecutor.
No pronouncement as to costs.
SO ORDERED.

3. Lo Bun Tiong vs. Balboa GR No. 158177, January 28, 2008

SPOUSES BENITO LO BUN

TIONG and CAROLINE
SIOK CHING TENG,
Petitioners,

- versus -

G.R. No. 158177

Present:
YNARES-SANTIAGO, J.
Chairperson
AUSTRIA-MARTINEZ,
CORONA,
NACHURA, and
REYES, JJ.

VICENTE BALBOA,
Promulgated:
Respondent.
January 28, 2008
x -------------------------------------------------------------------------------- x

DECISION
AUSTRIA-MARTINEZ, J.:

The
spouses
Benito
Lo
Bun Tiong and
Caroline Siok Ching Teng (petitioners) charge Vicente Balboa (respondent) with
forum shopping.

On February 24, 1997, respondent filed with the Regional Trial Court (RTC)
of Manila (Branch 34), Civil Case No. 97-82225 for Collection of Sum of Money
against petitioners. The amount sought covers three post-dated checks issued by
petitioner Caroline Siok Ching Teng (Caroline), as follows: Asia Trust Check No.
BNDO57546 dated December 30, 1996 for P2,000,000.00; Asia Trust Check No.
BNDO57547 dated January 15, 1997 for P1,200,000.00; and Asia Trust Check No.
BNDO57548 dated January 31, 1997 for P1,975,250.00 or a total
of P5,175,250.00.[1]
On July 21, 1997, separate criminal complaints for violation
of Batas Pambansa Blg. 22 (B.P. No. 22) were filed against Caroline before the
Municipal Trial Court (MTC) of Manila (Branch 10), covering the said three
checks. These cases were docketed as Criminal Case Nos. 277576 to 78.[2]
On August 11, 1998, the RTC rendered its Decision in Civil Case No. 9782225 finding petitioners liable, as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants ordering the latter:
1. To play the plaintiff the sum of P5,175,250.00 plus 6% interest
per annum until full payment;
2. To pay the plaintiff the sum of P100,000.00 as and for
attorney's fees.
3. To pay the cost of suit.
The counterclaim is hereby dismissed for lack of merit.
SO ORDERED.[3]

Thereafter, in a Decision dated December 5, 2001 rendered in Criminal Case

Nos. 277576 to 78, the MTC acquitted Caroline of the offenses charged for failure

of the prosecution to prove her guilt beyond reasonable doubt. The MTC,
however, found Caroline civilly liable in favor of respondent for the amounts
covered by these checks, to wit:
WHEREFORE, accused Caroline Siok Ching Teng is acquitted
of the charge for violation of BP Blg. 22 for failure of the prosecution to
prove her guilt beyond reasonable doubt. The accused is ordered civilly
liable to the offended party for the amounts of the checks subject of the
three informations herein,
i.e., P1,200,000.00, P1,975,250.00
andP2,000,000.00.
SO ORDERED.[4]

Petitioner sought partial reconsideration of the MTC Decision praying for

the deletion of the award of civil indemnity, but it was denied by the MTC per
Order dated April 12, 2002. Thus, Caroline appealed to the RTC, which docketed
the case as Criminal Case Nos. 02-204544-46.
In the meantime, petitioners brought to the Court of Appeals (CA) on appeal
the RTC Decision in Civil Case No. 97-82225, docketed as CA-G.R. CV No.
61457. In the assailed Decision dated November 20, 2002, the CA[5] dismissed the
appeal
for
lack
of
merit
and
affirmed
the
RTC
Decision in toto. The dispositiveportion of the assailed CA Decision reads:
WHEREFORE, in view of the foregoing and finding no
reversible error in the appealed Decision dated August 11, 1998 of
Branch 34 of the Regional Trial Court of Manila in Civil Case No. 9782225, the instant appeal is DISMISSED for lack of merit, and said
Decision is affirmed in toto.
SO ORDERED.[6]

Petitioners moved for reconsideration of the CA Decision, but this was

denied per Resolution dated April 21, 2003.[7]

On May 8, 2003, the RTC as an appellate court, rendered its Decision in

Criminal Case No. 02-204544-46, modifying the MTC Decision by deleting the
award of civil damages.[8]
Now before the Court for resolution is the Amended Petition filed under
Rule 45 of the Rules of Court, questioning the CA Decision dated November 20,
2002 and Resolution dated April 21, 2003, on the lone ground that:
PUBLIC RESPONDENT COURT OF APPEALS ACTED WITHOUT
JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION IN
ALLOWING PRIVATE RESPONDENT TO RECOVER TWICE FOR
THE SAME OBLIGATION ON ACCOUNT OF THE SAID PRIVATE
RESPONDENT'S DELIBERATE FAILURE AND REFUSAL TO
INFORM THE REGIONAL TRIAL COURT THAT THE CIVIL
OBLIGATION BEING SUED UPON IS THE SUBJECT OF
CRIMINAL COMPLAINTS WITH THE METROPOLITAN TRIAL
COURT, AND FOR WHICH THE CIVIL OBLIGATION WAS
SUBSEQUENTLY ADJUDGED.[9]

Petitioners contend that the assailed CA Decision and Resolution should be

reconsidered and the RTC Decision dated August 11, 1998 dismissed as
respondent's act of filing Civil Case No. 97-82225 and Criminal Cases Nos.
277576 to 78 constitutes forum shopping.
Forum shopping is the institution of two or more actions or proceedings
grounded on the same cause, on the supposition that one or the other court would
render a favorable disposition. It is usually resorted to by a party against whom an
adverse judgment or order has been issued in one forum, in an attempt to seek and
possibly to get a favorable opinion in another forum, other than by an appeal or a
special civil action for certiorari.[10]
There is forum shopping when the following elements concur: (1) identity of
the parties or, at least, of the parties who represent the same interest in both
actions; (2) identity of the rights asserted and relief prayed for, as the latter is

founded on the same set of facts; and (3) identity of the two preceding particulars,
such that any judgment rendered in the other action will amount to res judicata in
the action under consideration or will constitute litis pendentia.[11]
In Hyatt Industrial Manufacturing Corp. v. Asia Dynamic Electrix Corp.,
[12]
the Court ruled that there is identity of parties and causes of action between a
civil case for the recovery of sum of money as a result of the issuance of bouncing
checks, and a criminal case for the prosecution of a B.P. No. 22 violation. Thus, it
ordered the dismissal of the civil action so as to prevent double payment of the
claim. The Court stated:
x x x The prime purpose of the criminal action is to punish the
offender to deter him and others from committing the same or similar
offense, to isolate him from society, reform or rehabilitate him or, in
general, to maintain social order. The purpose, meanwhile, of the civil
action is for the restitution, reparation or indemnification of the private
offended party for the damage or injury he sustained by reason of
the delictual or felonious act of the accused. Hence, the relief sought in
the civil aspect of I.S. No. 00-01-00304 and I.S. No. 00-01-00300 is the
same as that sought in Civil Case No. MC 01-1493, that is, the recovery
of the amount of the checks, which, according to petitioner, represents
the amount to be paid by respondent for its purchases. x x x

This was reiterated in Silangan Textile Manufacturing Corp. v. Demetria,

[13]
where the civil case for the recovery of the amount covered by the bouncing
checks was also ordered dismissed.
In Hyatt and Silangan, the Court applied Supreme Court Circular No. 57-97
effective September 16, 1997, which provides:
1. The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to necessarily include the corresponding civil action,
and no reservation to file such action separately shall be allowed or
recognized.

This was later adopted as Rule 111(b) of the 2000 Revised Rules of Criminal
Procedure, to wit:
(b) The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to include the corresponding civil action. No reservation
to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount of the
check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary damages, the
offended party shall pay the filing fees based on the amounts alleged
therein. If the amounts are not so alleged but any of these damages are
subsequently awarded by the court, the filing fees based on the amount
awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not
yet commenced, it may be consolidated with the criminal action upon application
with the court trying the latter case. If the application is granted, the trial of both
actions shall proceed in accordance with section 2 of this Rule governing
consolidation of the civil and criminal actions.

The foregoing, however, are not applicable to the present case. It is worth
noting that Civil Case No. 97-82225 was filed on February 24, 1997, and Criminal
Cases Nos. 277576 to 78 on July 21, 1997, prior to the adoption of Supreme Court
Circular No. 57-97 on September 16, 1997. Thus, at the time of filing of Civil
Case No. 97-82225 and Criminal Cases Nos. 277576 to 78, the governing rule
is Section 1, Rule 111 of the 1985 Rules of Court, to wit:
SEC. 1. Institution of criminal and civil actions. When
a criminal action is instituted, the civil action for the recovery
of civil liability is impliedly instituted with thecriminal action, unless the
offended party waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the criminal action.
Such civil action includes the recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of

the Civil Code of the Philippinesarising from the same act or omission of
the accused.
x x x x (Emphasis supplied)

Under the foregoing rule, an action for the recovery of civil liability arising
from an offense charged is necessarily included in the criminal proceedings, unless
(1) there is an express waiver of the civil action, or (2) there is a reservation to
institute a separate one, or (3) the civil action was filed prior to the criminal
complaint.[14] Since respondent instituted the civil action prior to the criminal
action, then Civil Case No. 97-82225 may proceed independently of Criminal
Cases Nos. 277576 to 78, and there is no forum shopping to speak of.
Even under the amended rules, a separate proceeding for the recovery of
civil liability in cases of violations of B.P. No. 22 is allowed when the civil case is
filed ahead of the criminal case. Thus, in the Hyatt case, the Court noted, viz.:
x x x This rule [Rule 111(b) of the 2000 Revised Rules of
Criminal Procedure ] was enacted to help declog court dockets which are
filled with B.P. 22 cases as creditors actually use the courts as collectors.
Because ordinarily no filing fee is charged in criminal cases for actual
damages, the payee uses the intimidating effect of a criminal charge to
collect his credit gratis and sometimes, upon being paid, the trial court is
not even informed thereof. The inclusion of the civil action in the
criminal case is expected to significantly lower the number of cases filed
before the courts for collection based on dishonored checks. It is also
expected to expedite the disposition of these cases. Instead of instituting
two separate cases, one for criminal and another for civil, only a single
suit shall be filed and tried. It should be stressed that the policy laid
down by the Rules is to discourage the separate filing of the civil action.
The Rules even prohibit the reservation of a separate civil action, which
means that one can no longer file a separate civil case after the criminal
complaint is filed in court. The only instance when separate
proceedings are allowed is when the civil action is filed ahead of the
criminal case. Even then, the Rules encourage the consolidation of the
civil and criminal cases. We have previously observed that a separate
civil action for the purpose of recovering the amount of the dishonored

checks would only prove to be costly, burdensome and time-consuming

for both parties and would further delay the final disposition of the case.
This multiplicity of suits must be avoided. Where petitioners rights may
be fully adjudicated in the proceedings before the trial court, resort to a
separate action to recover civil liability is clearly unwarranted.
(Emphasis supplied)

Moreover, the RTC, in its Decision in Criminal Case Nos. 02-204544-46,

already deleted the award of civil damages. Records do not disclose that appeal
had been taken therefrom. There is, therefore, no double recovery of the amounts
covered by the checks or unjust enrichment on the part of respondent.
WHEREFORE, the petition is DENIED for lack of merit. The Decision
dated November 20, 2002 and Resolution dated April 21, 2003 of the Court of
Appeals are AFFIRMED.
Costs against petitioners.
SO ORDERED.
4. ABS-CBN Broadcasting Corp. vs. Ombudsman, GR No. 133347, October 15, 2008

ABS-CBN BROADCASTING
CORPORATION, EUGENIO LOPEZ,
JR., AUGUSTO ALMEDA-LOPEZ, and
OSCAR M. LOPEZ,
Petitioners,

G.R. No. 133347

Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus CHICO-NAZARIO,
NACHURA, and
OFFICE OF THE OMBUDSMAN,
ROBERTO S. BENEDICTO,*EXEQUIEL REYES, JJ.
B. GARCIA, MIGUEL V. GONZALES,
Promulgated:
and SALVADOR (BUDDY) TAN,*
Respondents.
October 15, 2008

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

At bar is a petition for certiorari under Rule 65 of the Rules of Court

challenging the Joint Resolution[1] dated May 2, 1997 of then Ombudsman Aniano
Desierto in OMB-0-94-1109, dismissing the complaint filed by petitioners against
private respondents, and the Order[2] denying their motion for reconsideration.

This case stems from an all too familiar chapter in Philippine history, i.e., the
declaration of martial law by then President Ferdinand Marcos and the
simultaneous sequestration of not a few private corporations, including one of the
petitioners herein, ABS-CBN Broadcasting Corporation (ABS-CBN).
On April 18 and 26, 1994, petitioners Eugenio, Jr., Oscar and Augusto
Almeda, all surnamed Lopez, as officers and on behalf of ABS-CBN, executed
separate complaint-affidavits charging private respondents Roberto S. Benedicto,
Exequiel B. Garcia, Miguel V. Gonzalez, and Salvador (Buddy) Tan with the
following crimes penalized under the Revised Penal Code (RPC): (a) Article 298 Execution of Deeds by Means of Violence or Intimidation; (b) Article 315
paragraphs 1[b], 2[a], 3[a] - Estafa; (c) Article 308 - Theft; (d) Article 302 Robbery; (e) Article 312 - Occupation of Real Property or Usurpation of Real
Rights in Property; and (f) Article 318 - Other Deceits.
Individual
following facts:

petitioners

complaint-affidavits[3] uniformly

narrated

the

1.
The day after the declaration of martial law, or on September 22, 1972,
just before midnight, military troops arrived at the ABS-CBN Broadcast Center in
Bohol Avenue, Quezon City, and informed the officers and personnel thereat of the
seizure and closure of the premises by virtue of Letter of Instruction (LOI) No. 1
issued by President Marcos ordering the closure of all radio and television stations
in the country.
2.
LOI No. 1 authorized the Secretary of National Defense to take over
or control, or cause the taking over and control of all x x x newspapers, magazines,
radio and television facilities and all other media of communications throughout
the country. Consequently, a total of seven (7) television stations owned and
operated by ABS-CBN were closed down by the government.[4]
3.
When it became apparent that petitioners would not be granted a
permit to re-open, ABS-CBN on October 31, 1972, terminated the services of all
its employees, giving each employee his/her retirement benefits. Corollary thereto,
sometime in November 1972, Eugenio Lopez, Jr., then president of ABS-CBN,
wrote then Secretary of National Defense, Juan Ponce Enrile,[5] of their desire to

sell ABS-CBN to the government. In that same month, however, Eugenio Lopez,
Jr. was arrested by the military, and detained at Fort Bonifacio for almost five (5)
years until his escape therefrom on September 30, 1977.
4.
Subsequently, after the proposal to sell ABS-CBN to the Marcos
government did not materialize, ABS-CBN started negotiations with then
Governor of Leyte, Benjamin Kokoy Romualdez, who expressed his desire and
intention to acquire the former. However, the negotiations with Kokoy Romualdez
in 1973 likewise did not result in the sale and re-opening of ABS-CBN.
5.
On June 6, 1973, the television and radio stations of Kanlaon
Broadcasting System (KBS) on Roxas Boulevard, Pasay City were consumed by
fire. KBS was the umbrella corporation of the Benedicto Group of broadcasting
companies, including Radio Philippines Network (RPN), [6] which operated TV
Channel 9, the only television station allowed to continue operating during the
early years of the martial law regime. Respondent Benedicto, then Philippine
Ambassador to Japan, managed, controlled, and was one of the principal
stockholders of RPN.
6.
On even date, both Benedicto and Alfredo Montelibano, who at that
time was Chairperson of the Board of Directors (BOD) of ABS-CBN, were
inBacolod. Benedicto constituted Montelibano as his emissary to the Lopezes,
relaying his plan to temporarily use ABS-CBNs broadcast studios in Quezon City,
from which to operate TV Channel 9, for such period of time as may be necessary
to
rebuild
KBS
burned
studios.

7.
On June 8, 1973, Montelibano met with other officers and executives
of ABS-CBN, including herein petitioners Oscar and Augusto Lopez, informing
them of Benedictos request. Oscar and Augusto, and the rest of the ABS-CBN
management team, strongly opposed the request. Eventually, however, when
Montelibano mentioned that Malacaang and Romualdez had cleared said request,
the possibility of a government-ordered confiscation of ABS-CBN, and not least of
all, the possible release of Eugenio Lopez, Jr., petitioners Oscar and Augusto, as
with the rest of ABS-CBNs executives, acquiesced to Benedictos request.

8.
Thus, at noontime on the same day, representatives of KBS headed by
Jose Montalvo arrived at the Meralco Building to finalize the proposed
arrangement with ABS-CBN. The transaction between ABS-CBN and KBS is
evidenced by a letter-agreement dated June 8, 1973, which reads in relevant part:
This is to confirm the agreement arrived at between RPN and
ABS-CBN to the following effect:
1.
Commencing on the date hereof, ABS-CBN hereby
conveys to RPN by way of lease its TV and radio equipment (excluding
TV channels and radio frequencies) and its premises at the ABS-CBN
Broadcast Center, Bohol Avenue, Quezon City (collectively called the
leased facilities) listed in the schedule attached hereto and marked as
Annex A.
2.
RPN shall pay ABS-CBN monthly rental as is reasonable
compensation for the use of the leased facilities. The amount of the
rental shall be determined after a discussion with Ambassador Roberto
Benedicto.
3.
The term of this lease shall commence on the date hereof
and continue for such reasonable time as may be normally necessary for
the rehabilitation of RPNs facilities unless an earlier period may be
fixed by RPN and ABS-CBN after discussion with Ambassador
Benedicto.
4.
RPN hereby assumes full and complete responsibility for
the leased facilities and shall be answerable for any and all losses and
damages to such facilities.
xxxx
6.
Upon termination of this lease, RPN shall return the
possession of the leased facilities to ABS-CBN and vacate the same
without the need of notice or demand.
7.
ABS-CBN, through its Chairman, Mr. Alfredo
Montelibano, shall have the right to select and designate the personnel
(not to exceed 20 at any one time) to maintain and operate all specialized
TV and radio equipment.

xxxx
10.
ABS-CBN shall have the right to enter the Broadcast
Center at any reasonable time during the term of this lease for the
purpose of determining compliance by RPN of the terms hereof.
xxxx
12.
RPN shall not, without the prior written consent of ABSCBN, sub-lease the leased facilities or any part thereof nor shall any part
be removed from the premises except the equipment, which are intended
for operation the Broadcast Center in due course of operations.

9.
Meanwhile, it appears that the parties were hard pressed to negotiate
and fix the monthly rental rate. Several attempts by Oscar to set up a meeting with
Benedicto for the fixing of the monthly rentals proved unsuccessful.
10. After more than four months of trying, a meeting between Oscar and
Benedicto finally materialized on October 31, 1973. At that meeting, the discussion
not only covered fixing of reasonable rentals for the lease of the ABS-CBN
studios, but likewise included the possibility of an outright sale.
11. Thereafter, the discussions and negotiations stopped as none of the
petitioners were able to meet anew with Benedicto who had supposedly referred
the matter to people above and the man on top.
12. Frustrated, then Senator Lorenzo Taada, as counsel for ABS-CBN, in
May
1976,
wrote
Benedicto
demanding
vacation
of
the ABSCBN BroadcastCenter and payment of back rentals for the use of the ABS-CBN
studios and facilities.
13. In response, Senator Estanislao Fernandez, on behalf of Benedicto,
met with Senator Taada in June 1976. Another meeting took place between the
parties respective counsels which included respondent Gonzales, another counsel
for Benedicto. Despite these meetings, no agreement was reached between
Benedicto and ABS-CBN. On the whole, from June 8, 1973, the time KBS

occupied the ABS-CBN studios in Quezon City, no rental was paid by the former
to the latter.
14. In the years following until the Marcos government was toppled in
1986, the ABS-CBN stations were transferred to the National Media Production
Center (NMPC) headed by Gregorio Cendaa of the Ministry of
Information. Starting in January 1980, KBS, on a staggered basis, transferred
possession, control and management of ABS-CBNs provincial television stations
to NMPC. Some of the radio stations of ABS-CBN were turned over to the
governments Bureau of Broadcast, while some were retained by KBS thru the
Banahaw Broadcasting Corporation (BBC) and Radio Philippines Network (RPN).
15. Parenthetically, during a military inventory in 1979-1980, and a visit
by ABS-CBN executives at ABS-CBNs radio transmitting stations in
Meycauayan, Bulacan, headed by petitioner Augusto, on August 13, 1984, ABSCBN properties and massive equipment were found to be missing. In addition, the
musical records and radio dramas accumulated by ABS-CBN in a span of twentyfive (25) years and stored in its library were now gone.
16. In June 1986, President Corazon Aquino, acting on the request of
ABS-CBN through Senator Taada, returned to ABS-CBN these radio and TV
stations on a gradual and scheduled basis.
As required by the Ombudsman, the respondents, except for Garcia, filed
their respective counter-affidavits,[7] with Benedicto adopting that of Gonzales,
denying petitioners charges, and averring that:
1.
The execution of the June 8, 1973 letter-agreement was a free and
voluntary act of ABS-CBN which agreed thereto fully expecting remuneration in
the form of rentals, thus:
2. RPN shall pay ABS-CBN monthly rental as is reasonable
compensation for the use of the lease facilities. The amount of the rental
shall be determined after a discussion with Ambassador Roberto
Benedicto.

2.
In that regard, respondent Gonzales, counsel for KBS, RPN and
Benedicto, participated in the negotiations and was present at three (3) meetings
for the fixing of rentals. Also in attendance were former Senator Estanislao
Fernandez, specially engaged to represent RPN and Benedicto, and Senator Taada
and petitioner Augusto for ABS-CBN.
3.
Initially, the discussions centered on the possible formulas for the
fixing of rentals. Later on, however, before an agreement on the rental rate could
be reached, the discussions shifted to the possibility of an outright sale. The
discussions on the sale were expanded as various creditors of ABS-CBN had made
and presented claims before respondent Garcia, then Comptroller of KBS-RPN.
4.
However, the discussions were discontinued when then Secretary of
National Defense Juan Ponce Enrile reminded KBS of the sequestered status of
ABS-CBN facilities such that arrangements undertaken for the use and lease
thereof should be taken up with the government.[8]
5.
Meanwhile, in July 1974, Secretary Ponce Enrile authorized KBS,
acting on behalf of BBC, to make use of the ABS-CBN provincial stations which
were not covered by the June 8, 1973 letter-agreement. The authorization was
granted in connection with the increased undertakings assigned by the Department
of National Defense (DND) to KBS, specifically, for the governments mass-media
developmental peace and order nationwide campaign.
7.
Thereafter, in October 1977, RPN vacated the ABS-CBN studios and
turned over the properties to George Viduya, the general manager of the
government station GTV-4. Viduya continued operations of GTV-4 at the ABSCBN properties, after which, the properties were all delivered in 1979 to the
NMPC headed by Cendaa. The provincial stations were delivered and turned over
on a staggered basis, with the DZRI station in Dagupan handed over in 1979. The
successive transfer of all ABS-CBN studios and stations, in Quezon City and the
provinces, were covered by receipts which were collated by the law firm of
respondent Gonzales retained by KBS for that purpose.

8.
The use of the ABS-CBN studios involved only three (3) juridical
entities, RPN, ABS-CBN and the government. The charges leveled by petitioners
in their complaint-affidavits merely point to civil liability as specified in the letteragreement itself:
4. RPN hereby assumes full and complete responsibility for the
leased facilities and shall be answerable for any and all losses and
damages to such facilities.

On the whole, the allegations of petitioners do not support the elements of the
crimes charged.
9.
Lastly, respondents invoke the grant of absolute immunity to
Benedicto as part of the Compromise Agreement in Sandiganbayan Civil Case No.
34 which states:
The Government hereby extends absolute immunity, as
authorized under the pertinent provisions of Executive Orders Nos. 1, 2,
14 and 14-A, to Benedicto, the members of his family, officers and
employees of the corporations above mentioned, who are included in
past, present and future cases and investigations of the Philippine
Government, such that there shall be no criminal investigation or
prosecution against said persons for acts, omissions committed prior to
February 25, 1986 that may be alleged to have violated any penal law,
including but not limited to Republic Act No. 3019, in relation to the
acquisition of any asset treated, mentioned or included in this
Agreement.

Expectedly, the petitioners in their joint reply-affidavit refuted respondents

counter-affidavits. Contrary to respondents allegations, petitioners reiterated
Benedictos over-all ploy, in conspiracy with the other respondents who were
officers of KBS and/or RPN, to use and occupy ABS-CBN properties without
paying compensation therefor. Petitioners maintain that respondents grand scheme
was to take-over ABS-CBN, albeit ostensibly covered by the letter-lease
agreement, giving the take over a semblance of legality.

Thereafter, with the issues having been joined, the Ombudsman issued the
herein assailed Joint Resolution dismissing petitioners complaints. To the
Ombudsman, the following circumstances did not give rise to probable cause
necessary to indict respondents for the various felonies charged:
1.
The Letter-Agreement of June 8, 1973 belie any illegal take-over
of the ABS-CBN complex.
While the Lopezes are now complaining that the letter-agreement
was virtually forced unto them thru intimidation, hence, the vitiated
consent of Mr. Montelibano, there is nothing however which the
complainants adduced to prove this allegation except their threadbare
allegations of threats. On the contrary, it appears that the Lopezes
blessed the letter-agreement hoping that their financial difficulties with
respect to the affairs of the ABS-CBN and their problem concerning the
continued detention of Eugenio Lopez, Jr. by the military, would at least
be mitigated. x x x
It is thus clear that the ABS-CBN complex was freely leased by
Montelibano upon consultation with the Lopezes who entertained some
ulterior motives of their own which they expect would result from the
agreement, either directly or indirectly. Of course, the Lopezes may not
have realized some of these expectations (i.e., the rentals, the release of
Eugenio, Jr. from detention) but this does not change the fact that the
parties consent to the contract appears to have been freely given.
Perforce, the complaint under Article 298 of the Revised Penal Code of
the Philippines must fail.
2.
Other TV and radio stations were taken over pursuant to LOI 1A, hence no violations of Art. 312, 302 and 308 of RPC.
To the alleged violation of Art. 312 of the Revised Penal Code,
the respondents contended that their use of ABS-CBNs facilities other
than those included in the lease-agreement, was in fact with the authority
of the then Department of National Defense (DND). There is no denying
that all of the ABS-CBN properties including the provincial ones are
under sequestration pursuant to Presidential Letter of Instruction No. 1A, issued on September 28, 1972. It was under the strength of this
Presidential Letter of Instruction that KBS-RPN was authorized to enter,
occupy and operate the facilities of ABS-CBN. This was also confirmed
by DND Secretary Juan Ponce Enrile in his letter to RPN datedJune 26,

1976. Unmistakably, KBS-RPNs possession of the ABS-CBNs

property other than those in the ABS-CBN complex is primarily
anchored on the authority pursuant to LOI 1-A. With this apparent
authority, this investigation can not see in any which way how the
respondents could have illegally taken over the properties of the
[petitioners], particularly those in the province; there is therefore no
convincing proof to support a charge under Article 312 of the Revised
Penal Code. It may come to mind that occupation of real property or
usurpation of real rights in property under Article 312 requires as one of
its elements the presence of violence against or intimidation of persons
as a means in securing real property or rights belonging to another.
Plainly, this element is not shown. The complainants may have felt
intimidated by the sequestration order, but it is in the nature of such
Order to be coercive. It was an act flowing from the martial law powers
of then President Marcos.
3.

No unlawful taking as to justify charges for Robbery or Theft.

Robbery and Theft under Articles 302 and 308 of the Revised
Penal Code were also attributed by the [petitioners] against the
respondents. From the records, it is clear that KBS-RPN has juridical
possession of the ABS-CBN properties subject of this complaint; a right
which can be validly set-up even against ABS-CBN itself. It can be
recalled that KBS-RPN was authorized to enter, occupy and operate
ABS-CBN facilities by virtue of the authority granted by the President,
pursuant to LOI No. 1-A. Aside, the BroadcastCenter itself was covered
by the lease-agreement. Under these situations, there is obviously no
basis to charge the respondents for robbery and theft; for these penal
offense require as an element the act of unlawful taking or asportation.
Asportation is simply poles apart from the juridical possession which
KBS-RPN enjoyed over the properties.
4.
No deceit was employed to gain possession
the Broadcast Center and the provincial TV and radio stations.

of

In the prosecution for estafa under [Articles 315, paragraphs 2(a),

3(a) and 318] of the Revised Penal Code, it is indispensable that the
element of deceit, consisting in the false statement of fraudulent
representation of the accused, be made prior to, or, at least
simultaneously with, the delivery of the thing by the complainants, it
being essential that such false statement or fraudulent representation

constitutes the very cause or the only motive which induces the
complainants to part with the thing. If there be no such prior or
simultaneous false statement or fraudulent representation, any
subsequent act of the respondent, however fraudulent or suspicious it
may appear, can not serve as basis for the prosecution of these crimes.
[From petitioners complaint-affidavits], it is very clear that the
late Alfredo Montelibano was the one who talked with Roberto
Benedicto, preparatory to the signing of the lease-agreement. As the
complainants did not identify exactly which constitute the deceitful act
(or the intimidation) which could have induced the Lopezes into
accepting the lease agreement, in most probability, the occurrences
which vitiated their consent happened during this preliminary discussion.
Noticeably however, it is not Alfredo Montelibano, the one who
supposedly talked with Benedicto, who is testifying on the alleged
veiled threat or deceits, if there are. Precisely, because he is already
dead.
x x x [I]t is submitted that the Lopezes can not now testify on
something which are not derived from their own personal perception.
The bottomline is that what they are now trying to adduce, pertaining to
the alleged deceits [or intimidation] attending the negotiation of the lease
agreement are purely hearsay. This is a matter which only Alfredo
Montelibano could testify competently.[9]

The Ombudsman saw no need to discuss the defenses of prescription and

immunity from suit raised by the respondents given his dismissal of the complaintaffidavits on the merits. However, in a subsequent Order denying petitioners
Motion for Reconsideration of the Joint Resolution, the Ombudsman lifted the
Office of the Chief Legal Counsels ratiocination for dismissing the complaintaffidavits, thus:
Incidentally, RPN has been identified as among the corporation in which
respondent Benedicto has substantial interests. In fact, it was one of the
subject matters of the Compromise Agreement reached by the
government and respondent Benedicto in Sandiganbayan Civil Case no.
34.

In that Compromise Agreement, for and in consideration of

respondent Benedictos cession of equities, and assignment of his rights
and interest in corporations therein listed, among them RPN, the
government extended absolute immunity to Benedicto, including
officers of his corporations as therein mentioned, such that there shall
be no criminal investigation or prosecution against said persons for acts
or omissions committed prior to February 25, 1986 that may be alleged
to have violated any penal law, including but not limited to Republic Act
No. 3019, in relation to the acquisition of any asset treated or included in
this Agreement.
In effect, the People of the Philippines as the offended party in
criminal cases has waived its right to proceed criminally against
Benedicto, et. al., for whatever crime they may have committed relative
to, among others, the alleged plunder of ABS-CBN properties. Again,
whatever liability that remains thereabout on respondents part is
perforce only civil in nature.[10]

Hence, this recourse by the petitioners alleging grave abuse of discretion in

the Ombudsmans Joint Resolution and Order.
Before anything else, we note that on April 5, 1999 and June 13, 2000, the
respective counsel for respondents Tan and Benedicto, in compliance with Section
16,[11] Rule 3 of the Rules of Court, filed pleadings informing the Court of their
clients demise. Benedictos counsel filed a Notice of Death (With Prayer for
Dismissal)[12] moving that Benedicto be dropped as respondent in the instant case
for the reason that the pending criminal cases subject of this appeal are actions
which do not survive the death of the party accused.
Petitioners opposed the move to drop Benedicto as respondent,
citing Torrijos v. Court of Appeals[13] which held that civil liability of the accused
survives his death; because death is not a valid cause for the extinguishment of
civil obligations.
Our ruling on this issue need not be arduous. The rules on whether the civil
liability of an accused, upon death, is extinguished together with his criminal
liability, has long been clarified and settled in the case of People v. Bayotas:[14]

1.
Death of an accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil liability based
solely thereon. As opined by Justice Regalado, in this regard, the death
of the accused prior to final judgment terminates his criminal liability
and only the civil liability directly arising from and based solely on the
offense committed, i.e., civil liability ex delicto in senso strictiore.
2.
Corollarily, the claim for civil liability survives notwithstanding
the death of accused, if the same may also be predicated on a source of
obligation other than delict. Article 1157 of the Civil Code enumerates
these other sources of obligation from which the civil liability may arise
as a result of the same act or omission:
a)
b)
c)
d)
e)

Law
Contracts
Quasi-contracts
xxx
Quasi-delicts

3.
Where the civil liability survives, as explained in Number 2
above, an action for recovery therefor may be pursued but only by way
of filing a separate civil action and subject to Section 1, Rule 111 of the
1985 Rules on Criminal Procedure[15] as amended. The separate civil
action may be enforced either against the executor/administrator or the
estate of the accused, depending on the source of obligation upon which
the same is based as explained above.
4.
Finally, the private offended party need not fear a forfeiture of his
right to file this separate civil action by prescription, in cases where
during the prosecution of the criminal action and prior to its extinction,
the private-offended party instituted together therewith the civil action.
In such case, the statute of limitations on the civil liability is deemed
interrupted during the pendency of the criminal case, conformably with
provisions of Article 1155 of the Civil Code, that should thereby avoid
any apprehension on a possible [de]privation of right by prescription.

Applying the foregoing rules, ABS-CBNs insistence that the case at bench
survives because the civil liability of the respondents subsists is stripped of merit.

To begin with, there is no criminal case as yet against the respondents. The
Ombudsman did not find probable cause to prosecute respondents for various
felonies in the RPC. As such, the rule that a civil action is deemed instituted along
with the criminal action unless the offended party: (a) waives the civil action, (b)
reserves the right to institute it separately, or (c) institutes the civil action prior to
the criminal action,[16] is not applicable.
In any event, consistent with People v. Bayotas,[17] the death of the accused
necessarily calls for the dismissal of the criminal case against him, regardless of
the institution of the civil case with it. The civil action which survives the death of
the accused must hinge on other sources of obligation provided in Article 1157 of
the Civil Code. In such a case, a surviving civil action against the accused founded
on other sources of obligation must be prosecuted in a separate civil action. In
other words, civil liability based solely on the criminal action is extinguished, and
a different civil action cannot be continued and prosecuted in the same criminal
action.
Significantly, this Court in Benedicto v. Court of Appeals,[18] taking
cognizance of respondent Benedictos death on May 15, 2000, has ordered that the
latter be dropped as a party, and declared extinguished any criminal as well as civil
liability ex delicto that might be attributable to him in Criminal Cases Nos. 91101879 to 91-101883, 91-101884 to 101892, and 92-101959 to 92-101969 pending
before the Regional Trial Court of Manila.
Lastly, we note that petitioners appear to have already followed our ruling
in People v. Bayotas[19] by filing a separate civil action to enforce a claim against
the estate of respondent Benedicto.[20] The claim against the estate of Benedicto is
based on contractthe June 8, 1973 letter- agreementin consonance with
Section 5,[21] Rule 86 of the Rules of Court. Plainly, the dropping of respondents
Benedicto and Tan as parties herein is in order.
We now come to the core issue of whether the Ombudsman committed grave
abuse of discretion in dismissing petitioners complaint against the respondents.
We rule in the negative and, accordingly, dismiss the petition.

We cannot overemphasize the fact that the Ombudsman is a constitutional

officer duty bound 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. [22] The raison d
etrefor its creation and endowment of broad investigative authority is to insulate it
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 execution of official pressure and influence, quash, delay, or dismiss
investigations into malfeasances and misfeasances committed by public officers.[23]

[24]

In Presidential Commission on Good Government (PCGG) v. Desierto,

we dwelt on the powers, functions and duties of the Ombudsman, to wit:
The prosecution of offenses committed by public officers is
vested primarily in the Office of the Ombudsman. It bears emphasis that
the Office has been given a wide latitude of investigatory and
prosecutory powers under the Constitution and Republic Act No. 6770
(The Ombudsman Act of 1989). This discretion is all but free from
legislative, executive or judicial intervention to ensure that the Office is
insulated from any outside pressure and improper influence.
Indeed, the Ombudsman is empowered to determine whether
there exist reasonable grounds to believe that a crime has been
committed and that the accused is probably guilty thereof and, thereafter,
to file the corresponding information with the appropriate courts. The
Ombudsman may thus conduct an investigation if the complaint filed is
found to be in the proper form and substance. Conversely, the
Ombudsman may also dismiss the complaint should it be found
insufficient in form or substance.
Unless there are good and compelling reasons to do so, the Court
will refrain from interfering with the exercise of the Ombudsmans
powers, and respect the initiative and independence inherent in the latter
who, beholden to no one, acts as the champion of the people and the
preserver of the integrity of public service.
The pragmatic basis for the general rule was explained
in Ocampo v. Ombudsman:

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 would 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 private complainants.[25]

From the foregoing, it is crystal clear that we do not interfere with the
Ombudsmans exercise of his investigatory and prosecutory powers vested by the
Constitution. In short, we do not review the Ombudsmans exercise of discretion in
prosecuting or dismissing a complaint except when the exercise thereof is tainted
with grave abuse of discretion.
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment tantamount to lack of jurisdiction. The abuse of discretion
must be so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation
of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.[26] In this regard, petitioners utterly failed to
demonstrate the Ombudsmans abuse, much less grave abuse, of discretion.
Apart from a blanket and general charge that remaining respondents herein,
Gonzales and Garcia, are officers of KBS/RPN and/or alter egos of Benedicto,
petitioners complaint-affidavits are bereft of sufficient ground to engender a wellfounded belief that crimes have been committed and the respondents, namely,
Gonzales and Garcia, are probably guilty thereof and should be held for trial.
[27]
Certainly, the Ombudsman did not commit grave abuse of discretion in
dismissing petitioners complaint-affidavits.

From the entirety of the records, it is beyond cavil that petitioners seek to
attach criminal liability to an unequivocally civil undertaking gone awry. As
pointed out by the Ombudsman, although the petitioners may not have realized
their expectations in entering into the June 8, 1973 letter-agreement, such does not
render their consent thereto defective.
The execution and validity of this letter-agreement is connected with
respondents culpability for the felonies charged as these include the element of
whether they had juridical possession of the ABS-CBN properties. Essentially,
petitioners claim they did not freely give their consent to the letter-agreement.
However, on more than one occasion, petitioners have invoked the letteragreements provisions, and made claims thereunder.
First, petitioners met and discussed with respondents the fixing of the rental
rate for the ABS-CBN studios in Quezon City as provided in paragraph 2 of the
letter-lease agreement. Next, petitioners counsel wrote a demand letter to
respondents for the payment of rentals for the latters occupation and use of ABSCBN properties pursuant to the letter-agreement. Last and most importantly,
petitioners have made a claim against the estate of Benedicto based on the
same June 8, 1973letter-agreement.
This action of petitioners clearly evinces their ratification of the letteragreement. As previously discussed, the civil liability of respondents Benedicto
and Tan hinging on the charged criminal acts herein was extinguished upon their
death. But other civil liabilities founded on other sources of obligations under
Article 1157 of the Civil Code may still be prosecuted either against the estate of
the deceased if based on contract,[28] or against the executors and administrators of
the deceaseds estate if based on quasi-delict.[29]
As petitioners have ratified the letter-agreement, even after the lifting of
martial law and the toppling of the Marcos government, and advanced the validity
of the letter-agreement in their claim against the estate of Benedicto, they cannot,
in the same breath, aver that respondents actuations in the execution of the letteragreement were criminal in nature, or that the letter-agreement was more ostensible
than real and to insist on the prosecution of respondents for felonies supposedly
committed in connection with this ubiquitous letter-agreement.[30]

In fine, the Ombudsman did not abuse his discretion in determining that the
allegations of petitioners against respondents are civil in nature, bereft of criminal
character. Perforce, he was correct in dismissing petitioners complaint-affidavits.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
Roberto S. Benedicto and Salvador Tan are dropped as private respondents without
prejudice to the filing of separate civil actions against their respective estates. The
assailed Joint Resolution and Order of the Ombudsman in OMB-0-94-1109
areAFFIRMED.
SO ORDERED.
5. Hun Hyung Park vs. Eung Wong Choi GR No. 165496, February12, 2007

HUN HYUNG PARK,

Petitioner,

G.R. No. 165496

Present:
QUISUMBING, J., Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

- versus -

EUNG WON CHOI,

Respondent.

Promulgated:

February 12, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Petitioner, Hun Hyung Park, assails the Court of Appeals (CA) Resolutions
dated May 20, 2004[1] and September 28, 2004[2] in CA G.R. CR No. 28344
dismissing his petition and denying reconsideration thereof, respectively.

In an Information[3] dated August 31, 2000, respondent, Eung Won Choi,

was charged for violation of Batas Pambansa Blg. 22, otherwise known as the
Bouncing Checks Law, for issuing on June 28, 1999 Philippine National Bank
Check No. 0077133 postdated August 28, 1999 in the amount of P1,875,000 which
was dishonored for having been drawn against insufficient funds.
Upon arraignment, respondent, with the assistance of counsel, pleaded not
guilty to the offense charged. Following the pre-trial conference, the prosecution
presented its evidence-in-chief.
After the prosecution rested its case, respondent filed a Motion for Leave of
Court to File Demurrer to Evidence to which he attached his Demurrer, asserting
that the prosecution failed to prove that he received the notice of dishonor, hence,
the presumption of the element of knowledge of insufficiency of funds did not
arise.[4]
By Order[5] of February 27, 2003, the Metropolitan Trial Court (MeTC)
of Makati, Branch 65 granted the Demurrer and dismissed the case. The
prosecutions Motion for Reconsideration was denied.[6]
Petitioner appealed the civil aspect[7] of the case to the Regional Trial Court
(RTC) of Makati, contending that the dismissal of the criminal case should not
include its civil aspect.
By Decision of September 11, 2003, Branch 60 of the RTC held that while
the evidence presented was insufficient to prove respondents criminal liability, it
did not altogether extinguish his civil liability. It accordingly granted the appeal of
petitioner and ordered respondent to pay him the amount of P1,875,000 with legal
interest.[8]
Upon respondents motion for reconsideration, however, the RTC set aside
its decision and ordered the remand of the case to the MeTC for further
proceedings, so that the defendant [-respondent herein] may adduce evidence on
the civil aspect of the case.[9] Petitioners motion for reconsideration of the

remand of the case having been denied, he elevated the case to the CA which, by
the assailed resolutions, dismissed his petition for the following reasons:
1. The verification and certification of non-forum shopping attached to
the petition does not fully comply with Section 4, as amended by
A.M. No. 00-2-10-SC, Rule 7, 1997 Rules of Court, because it does
not give the assurance that the allegations of the petition are true and
correct based on authentic records.
2. The petition is not accompanied by copies of certain pleadings and
other material portions of the record, (i.e., motion for leave to file
demurrer to evidence, demurrer to evidence and the opposition
thereto, and the Municipal [sic] Trial Courts Order dismissing
Criminal Case No. 294690) as would support the allegations of the
petition (Sec. 2, Rule 42, ibid.).
3. The Decision dated September 11, 2003 of the Regional Trial Court
attached to the petition is an uncertified and illegible mere machine
copy of the original (Sec. 2, Rule 42,ibid.).
4. Petitioners failed to implead the People of the Philippines as partyrespondent in the petition.[10]

In his present petition, petitioner assails the above-stated reasons of the

appellate court in dismissing his petition.
The manner of verification for pleadings which are required to be verified,
such as a petition for review before the CA of an appellate judgment of the RTC,
[11]
is prescribed by Section 4 of Rule 7 of the Rules of Court:
Sec. 4. Verification. Except when otherwise specifically
required by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his
personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification

based on information and belief, or upon knowledge, information and
belief, or lacks a proper verification shall be treated as an unsigned
pleading.[12] (Emphasis and underscoring supplied)

Petitioner argues that the word or is a disjunctive term signifying

disassociation and independence, hence, he chose to affirm in his petition he filed
before the court a quo that its contents are true and correct of my own personal
knowledge,[13] and not on the basis of authentic documents.
On the other hand, respondent counters that the word or may be
interpreted in a conjunctive sense and construed to mean as and, or vice versa,
when the context of the law so warrants.
A reading of the above-quoted Section 4 of Rule 7 indicates that a pleading
may be verified under either of the two given modes or under both. The veracity
of the allegations in a pleading may be affirmed based on either ones own personal
knowledge or on authentic records, or both, as warranted. The use of the
preposition or connotes that either source qualifies as a sufficient basis for
verification and, needless to state, the concurrence of both sources is more than
sufficient.[14] Bearing both a disjunctive and conjunctive sense, this parallel legal
signification avoids a construction that will exclude the combination of the
alternatives or bar the efficacy of any one of the alternatives standing alone.[15]
Contrary to petitioners position, the range of permutation is not left to the
pleaders liking, but is dependent on the surrounding nature of the
allegations which may warrant that a verification be based either purely on
personal knowledge, or entirely on authentic records, or on both sources.
As pointed out by respondent, authentic records as a basis for verification
bear significance in petitions wherein the greater portions of the allegations are
based on the records of the proceedings in the court of origin and/or the court a
quo, and not solely on the personal knowledge of the petitioner. To illustrate,
petitioner himself could not have affirmed, based on his personal knowledge, the
truthfulness of the statement in his petition [16] before the CA that at the pre-trial

conference respondent admitted having received the letter of demand, because he

(petitioner) was not present during the conference.[17] Hence, petitioner needed to
rely on the records to confirm its veracity.
Verification is not an empty ritual or a meaningless formality. Its import
must never be sacrificed in the name of mere expedience or sheer caprice. For
what is at stake is the matter of verity attested by the sanctity of an oath [18] to
secure an assurance that the allegations in the pleading have been made in good
faith, or are true and correct and not merely speculative.[19]
This Court has strictly been enforcing the requirement of verification and
certification and enunciating that obedience to the requirements of procedural rules
is needed if fair results are to be expected therefrom. Utter disregard of the rules
cannot just be rationalized by harking on the policy of liberal construction.
[20]
While the requirement is not jurisdictional in nature, it does not make it less a
rule. A relaxed application of the rule can only be justified by the attending
circumstances of the case.[21]
To sustain petitioners explanation that the basis of verification is a matter of
simple preference would trivialize the rationale and diminish the resoluteness of
the rule. It would play on predilection and pay no heed in providing enough
assurance of the correctness of the allegations.
On the second reason of the CA in dismissing the petition that the petition
was not accompanied by copies of certain pleadings and other material portions of
the record as would support the allegations of the petition (i.e., Motion for Leave to
File Demurrer to Evidence, Demurrer to Evidence and the Opposition thereto, and
the MeTC February 27, 2003 Order dismissing the case) petitioner contends that
these documents are immaterial to his appeal.
Contrary to petitioners contention, however, the materiality of those
documents is very apparent since the civil aspect of the case, from which he is
appealing, was likewise dismissed by the trial court on account of the same
Demurrer.

Petitioner, nonetheless, posits that he subsequently submitted to the CA

copies of the enumerated documents, save for the MeTC February 27, 2003 Order,
as attachments to his Motion for Reconsideration.
The Rules, however, require that the petition must be accompanied by
clearly legible duplicate original or true copies of the judgments or final orders
of both lower courts, certified correct by the clerk of court.[22]
A perusal of the petition filed before the CA shows that the only duplicate
original or certified true copies attached as annexes thereto are the January 14,
2004RTC Order granting respondents Motion for Reconsideration and the March
29, 2004 RTC Order denying petitioners Motion for Reconsideration. The copy of
the September 11, 2003 RTC Decision, which petitioner prayed to be reinstated, is
not a certified true copy and is not even legible. Petitioner later recompensed
though by appending to his Motion for Reconsideration a duplicate original copy.
While petitioner averred before the CA in his Motion for Reconsideration
that the February 27, 2003 MeTC Order was already attached to his petition as
Annex G, Annex G bares a replicate copy of a different order, however. It was
to this Court that petitioner belatedly submitted an uncertified true copy of the
said MeTCOrder as an annex to his Reply to respondents Comment.
This Court in fact observes that the copy of the other MeTC Order,
that dated May 5, 2003, which petitioner attached to his petition before the CA is
similarly uncertified as true.
Since both Orders of the MeTC were adverse to him even with respect to the
civil aspect of the case, petitioner was mandated to submit them in the required
form.[23]
In fine, petitioner fell short in his compliance with Section 2 (d) of Rule 42,
the mandatory tenor of which is discernible thereunder and is well settled.[24] He
has not, however, advanced any strong compelling reasons to warrant a relaxation
of the Rules, hence, his petition before the CA was correctly dismissed.

Procedural rules are tools designed to facilitate the adjudication

of cases. Courts and litigants alike are thus enjoined to abide strictly by
the rules. And while the Court, in some instances, allows a relaxation in
the application of the rules, this we stress, was never intended to forge a
bastion for erring litigants to violate the rules with impunity. The
liberality in the interpretation and application of the rules applies only in
proper cases and under justifiable causes and circumstances. While it is
true that litigation is not a game of technicalities, it is equally true that
every case must be prosecuted in accordance with the prescribed
procedure to insure an orderly and speedy administration of justice. [25]
(Emphasis supplied)

As to the third reason for the appellate courts dismissal of his petition
failure to implead the People of the Philippines as a party in the petition indeed,
as petitioner contends, the same is of no moment, he having appealed only the civil
aspect of the case. Passing on the dual purpose of a criminal action, this Court
ruled:
Unless the offended party waives the civil action or reserves the
right to institute it separately or institutes the civil action prior to the
criminal action, there are two actions involved in a criminal case. The
first is the criminal action for the punishment of the offender. The
parties are the People of the Philippines as the plaintiff and the
accused. In a criminal action, the private complainant is merely a
witness for the State on the criminal aspect of the action. The second is
the civil action arising from the delict. The private complainant is the
plaintiff and the accused is the defendant. There is a merger of the trial
of the two cases to avoid multiplicity of suits.[26] (Underscoring
supplied)

It bears recalling that the MeTC acquitted respondent.[27] As a rule, a

judgment of acquittal is immediately final and executory and the prosecution
cannot appeal the acquittal because of the constitutional prohibition against double
jeopardy.
Either the offended party or the accused may, however, appeal the civil
aspect of the judgment despite the acquittal of the accused. The public prosecutor

has generally no interest in appealing the civil aspect of a decision acquitting the
accused. The acquittal ends his work. The case is terminated as far as he is
concerned. The real parties in interest in the civil aspect of a decision are the
offended party and the accused.[28]
Technicality aside, the petition is devoid of merit.
When a demurrer to evidence is filed without leave of court, the whole case
is submitted for judgment on the basis of the evidence for the prosecution as the
accused is deemed to have waived the right to present evidence. [29] At that
juncture, the court is called upon to decide the case including its civil aspect,
unless the enforcement of the civil liability by a separate civil action has been
waived or reserved.[30]
If the filing of a separate civil action has not been reserved
or priorly instituted or the enforcement of civil liability is not waived, the trial
court should, in case of conviction, state the civil liability or damages caused by
the wrongful act or omission to be recovered from the accused by the offended
party, if there is any.[31]
For, in case of acquittal, the accused may still be adjudged civilly
liable. The extinction of the penal action does not carry with it the extinction of
the civil action where (a) the acquittal is based on reasonable doubt as only
preponderance of evidence is required; (b) the court declares that the liability of the
accused is only civil; and (c) the civil liability of the accused does not arise from or
is not based upon the crime of which the accused was acquitted.[32]
The civil action based on delict may, however, be deemed extinguished if
there is a finding on the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist.[33]
In case of a demurrer to evidence filed with leave of court, the accused may
adduce countervailing evidence if the court denies the demurrer.[34] Such denial
bears no distinction as to the two aspects of the case because there is a disparity of
evidentiary value between the quanta of evidence in such aspects of the case. In
other words, a court may not deny the demurrer as to the criminal aspect and at the

same time grant the demurrer as to the civil aspect, for if the evidence so far
presented is not insufficient to prove the crime beyond reasonable doubt, then the
same evidence is likewise not insufficient to establish civil liability by mere
preponderance of evidence.
On the other hand, if the evidence so far presented is insufficient as proof
beyond reasonable doubt, it does not follow that the same evidence is insufficient
to establish a preponderance of evidence. For if the court grants the
demurrer, proceedings on the civil aspect of the case generally proceeds. The only
recognized instance when an acquittal on demurrer carries with it the dismissal of
the civil aspect is when there is a finding that the act or omission from which the
civil liability may arise did not exist. Absent such determination, trial as to the
civil aspect of the case must perforce continue. Thus this Court, in Salazar
v. People,[35] held:
If demurrer is granted and the accused is acquitted by the court,
the accused has the right to adduce evidence on the civil aspect of the
case unless the court also declares that the act or omission from which
the civil liability may arise did not exist.[36]

In the instant case, the MeTC granted the demurrer and dismissed the case
without any finding that the act or omission from which the civil liability may arise
did not exist.
Respondent did not assail the RTC order of remand. He thereby recognized
that there is basis for a remand.
Indicatively, respondent stands by his defense that he merely
borrowed P1,500,000 with the remainder representing the interest, and that he
already made a partial payment of P1,590,000. Petitioner counters, however, that
the payments made by respondent pertained to other transactions. [37] Given these
conflicting claims which are factual, a remand of the case would afford the fullest
opportunity for the parties to ventilate, and for the trial court to resolve the same.

Petitioner finally posits that respondent waived his right to present evidence
on the civil aspect of the case (1) when the grant of the demurrer was reversed on
appeal, citing Section 1 of Rule 33,[38] and (2) when respondent orally opposed
petitioners motion for reconsideration pleading that proceedings with respect to
the civil aspect of the case continue.
Petitioners position is tenuous.
Petitioners citation of Section 1 of Rule 33 is incorrect. Where a court has
jurisdiction over the subject matter and over the person of the accused, and the
crime was committed within its territorial jurisdiction, the court necessarily
exercises jurisdiction over all issues that the law requires it to resolve.
One of the issues in a criminal case being the civil liability of the accused
arising from the crime, the governing law is the Rules of Criminal Procedure, not
the Rules of Civil Procedure which pertains to a civil action arising from the
initiatory pleading that gives rise to the suit.[39]
As for petitioners attribution of waiver to respondent, it cannot be
determined with certainty from the records the nature of the alleged oral objections
of respondent to petitioners motion for reconsideration of the grant of the
demurrer to evidence. Any waiver of the right to present evidence must be
positively demonstrated. Any ambiguity in the voluntariness of the waiver is
frowned upon,[40] hence, courts must indulge every reasonable presumption against
it.[41]
This Court therefore upholds respondents right to present evidence as
reserved by his filing of leave of court to file the demurrer.
WHEREFORE,
discussions, DENIED.

the

petition

is,

in

light

of

the

foregoing

The
case
is
REMANDED
to
the
court
of
origin, Metropolitan Trial Court of Makati City, Branch 65 which is DIRECTED to
forthwith set Criminal Case No. 294690 for further proceedings only for the
purpose of receiving evidence on the civil aspect of the case.

6. Rolito Calang and Philtranco Service Enterprises vs. People GR No. 190696, August 3,
2010

ROLITO CALANG and

PHILTRANCO SERVICE
ENTERPRISES, INC.,
Petitio
ners,

G.R. No.

190696

Present:

CARPIO MORALES, J., Chairperson,

BRION,
-

versus

BERSAMIN,

ABAD, and
VILLARAMA, JR., JJ.

PEOPLE OF
THE PHILIPPINES,

Promulgated:
Respondent.
August 3, 2010

x----------------------------------------------------------------------------------------x
RESOLUTION
BRION, J.:

We resolve the motion for reconsideration filed by the

petitioners, Philtranco Service Enterprises, Inc. (Philtranco) and
Rolito Calang, to challenge our Resolution of February 17,
2010. Our assailed Resolution denied the petition for review
on certiorari for failure to show any reversible error sufficient to

warrant the exercise of this Courts discretionary appellate

jurisdiction.

Antecedent Facts

At around 2:00 p.m. of April 22, 1989, Rolito Calang was

driving Philtranco Bus No. 7001, owned by Philtranco along Daang
Maharlika Highway in BarangayLambao, Sta. Margarita, Samar
when its rear left side hit the front left portion of a Sarao jeep
coming from the opposite direction. As a result of the collision,
Cresencio Pinohermoso, the jeeps driver, lost control of the
vehicle, and bumped and killed Jose Mabansag, a bystander who
was standing along the highways shoulder. The jeep turned turtle
three (3) times before finally stopping at about 25 meters from
the point of impact. Two of the jeeps passengers, Armando Nablo
and an unidentified woman, were instantly killed, while the other
passengers sustained serious physical injuries.

The prosecution charged Calang with multiple homicide,

multiple serious physical injuries and damage to property thru
reckless imprudence before the Regional Trial Court (RTC), Branch
31, Calbayog City. The RTC, in its decision dated May 21, 2001,
found Calang guilty beyond reasonable doubt of reckless
imprudence resulting to multiple homicide, multiple physical
injuries and damage to property, and sentenced him to suffer an
indeterminate penalty of thirty days ofarresto menor, as
minimum, to four years and two months of prision correccional, as
maximum. The RTC ordered Calang and Philtranco, jointly and
severally, to pay P50,000.00 as death indemnity to the heirs of
Armando; P50,000.00 as death indemnity to the heirs of
Mabansag; and P90,083.93 as actual damages to the private
complainants.

The petitioners appealed the RTC decision to the Court of

Appeals (CA), docketed as CA-G.R. CR No. 25522. The CA, in its
decision dated November 20, 2009, affirmed the RTC
decision in toto. The CA ruled that petitioner Calang failed to
exercise due care and precaution in driving the Philtranco
bus. According to the CA, various eyewitnesses testified that the
bus was traveling fast and encroached into the opposite lane
when it evaded a pushcart that was on the side of the road. In
addition, he failed to slacken his speed, despite admitting that he
had already seen the jeep coming from the opposite direction
when it was still half a kilometer away. The CA further ruled that
Calang demonstrated a reckless attitude when he drove the bus,
despite knowing that it was suffering from loose compression,
hence, not roadworthy.

The CA added that the RTC correctly held Philtranco jointly

and severally liable with petitioner Calang, for failing to prove that
it had exercised the diligence of a good father of the family to
prevent the accident.

The petitioners filed with this Court a petition for review

on certiorari. In our Resolution dated February 17, 2010, we
denied the petition for failure to sufficiently show any reversible
error in the assailed decision to warrant the exercise of this
Courts discretionary appellate jurisdiction.

The Motion for Reconsideration

In the present motion for reconsideration, the petitioners

claim that there was no basis to hold Philtranco jointly and

severally liable with Calang because the former was not a party in
the criminal case (for multiple homicide with multiple serious
physical injuries and damage to property thru reckless
imprudence) before the RTC.

The petitioners likewise maintain that the courts below

overlooked several relevant facts, supported by documentary
exhibits, which, if considered, would have shown that Calang was
not negligent, such as the affidavit and testimony of witness
Celestina Cabriga; the testimony of witness Rodrigo Bocaycay; the
traffic accident sketch and report; and the jeepneys registration
receipt. The petitioners also insist that the jeeps driver had the
last clear chance to avoid the collision.

We partly grant the motion.

Liability of Calang

We see no reason to overturn the lower courts finding on

Calangs culpability. The finding of negligence on his part by the
trial court, affirmed by the CA, is a question of fact that we cannot
pass upon without going into factual matters touching on the
finding
of
negligence. In
petitions
for
review
on certiorari under Rule 45 of the Revised Rules of Court, this
Court is limited to reviewing only errors of law, not of fact, unless
the factual findings complained of are devoid of support by the

evidence on record, or the assailed judgment is based on a

misapprehension of facts.

Liability of Philtranco

We, however, hold that the RTC and the CA both erred in
holding Philtranco jointly and severally liable with Calang. We
emphasize that Calang was charged criminally before the RTC.
Undisputedly, Philtranco was not a direct party in this case. Since
the cause of action against Calang was based on delict, both the
RTC and the CA erred in holding Philtranco jointly and severally
liable with Calang, based on quasi-delict under Articles 2176 [1] and
2180[2] of the Civil Code. Articles 2176 and 2180 of the Civil Code
pertain to the vicarious liability of an employer for quasi-delicts
that an employee has committed. Such provision of law does not
apply to civil liability arising from delict.

If at all, Philtrancos liability may only be subsidiary. Article 102 of the

Revised Penal Code states the subsidiary civil liabilities of innkeepers,
tavernkeepers and proprietors of establishments, as follows:

In default of the persons criminally liable, innkeepers, tavernkeepers, and

any other persons or corporations shall be civilly liable for crimes committed in
their establishments, in all cases where a violation of municipal ordinances or
some general or special police regulations shall have been committed by them or
their employees.

Innkeepers are also subsidiary liable for the restitution of goods taken by
robbery or theft within their houses from guests lodging therein, or for the
payment of the value thereof, provided that such guests shall have notified in

advance the innkeeper himself, or the person representing him, of the deposit of
such goods within the inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have given them with respect to
the care of and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation of persons unless committed by the
innkeepers employees.

The foregoing subsidiary liability applies to employers, according to Article

103 of the Revised Penal Code, which reads:

The subsidiary liability established in the next preceding article shall also
apply to employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen, apprentices,
or employees in the discharge of their duties.

The
provisions
of
the
Revised
Penal
Code
on
subsidiary liability Articles 102 and 103 are deemed written
into the judgments in cases to which they are applicable. Thus, in
the dispositive portion of its decision, the trial court need not
expressly pronounce the subsidiary liability of the employer.
[3]
Nonetheless, before the employers subsidiary liability is
enforced, adequate evidence must exist establishing that (1) they
are indeed the employers of the convicted employees; (2) they
are engaged in some kind of industry; (3) the crime was
committed by the employees in the discharge of their duties; and
(4) the execution against the latter has not been satisfied due to
insolvency. The determination of these conditions may be done in
the same criminal action in which the employees liability,
criminal and civil, has been pronounced, in a hearing set for that
precise purpose, with due notice to the employer, as part of the
proceedings for the execution of the judgment. [4]

WHEREFORE, we PARTLY GRANT the present motion. The

Court of Appeals decision that affirmed in toto the RTC decision,
finding Rolito Calang guilty beyond reasonable doubt of reckless
imprudence resulting in multiple homicide, multiple serious
physical injuries and damage to property, is AFFIRMED, with
the MODIFICATION that Philtrancos liability should only be
subsidiary. No costs.

SO ORDERED.
7. Dupasquier vs. CA GR No. 112089, January 24, 2001

[G.R. No. 112089. January 24, 2001]

REMEDIOS A. DUPASQUIER, ENRIQUE M. ZALAMEA, JR., RAMON

HENARES, RODRIGO GATMAITAN, JR., JESUS CORDERO,
BENJAMIN ELIZAGA AND EDUARDO TACOLOD, petitioners,
vs. THE HONORABLE COURT OF APPEALS, THE SECRETARY
OF JUSTICE, THE PROVINCIAL PROSECUTOR OF RIZAL,
JUDGE JULIO R. LOGARTA of Branch 63, Regional Trial Court of
Makati, BANCO FILIPINO SAVINGS & MORTGAGE BANK and
THE PEOPLE OF THE PHILIPPINES, respondents.
[G.R. No. 112737. January 24, 2001]

HON. EDUARDO G. MONTENEGRO, in his capacity as Secretary of

Justice; HON. MAURO C. CASTRO, in his capacity as PROVINCIAL
Prosecutor for Rizal; HON. TEOFILO L. GUADIZ, JR., in his capacity
as Presiding Judge of Branch 147, Makati; HON. CANDIDO P.
VILLANUEVA, in his capacity as Presiding Judge, RTC, Branch 144,
Makati,
and
HON.
JULIO
R.
LOGARTA,
in
his
capacity as Presiding Judge, RTC,
Branch
53,
Makati, petitioners, vs. COURT OF APPEALS and FORTUNATO M.
DIZON, JR., respondents.

DECISION
PARDO, J.:

These are two (2) consolidated cases assailing two (2) decisions [1] of the Court of Appeals
involving the prosecution of officials of Banco Filipino Savings and Mortgage Bank, for estafa.
In the first decision, the Court of Appeals[2] dismissed the petition of Remedios A.
Dupasquier, Enrique M. Zalamea, Jr., Ramon Henares, Rodrigo Gatmaitan, Jr., Jesus Cordero,
Benjamin Elizaga and Eduardo Tacolod, for the dismissal of the charges against them.
In the second decision, the Court of Appeals[3] ordered petitioners Secretary of Justice,
Provincial Prosecutor for Rizal, and the trial courts to dismiss the charges against respondent
Fortunato M. Dizon, Jr.
In 1987, Carlota P. Valenzuela, deputy governor of the Central Bank of the Philippines and
receiver/liquidator of Banco Filipino Savings and Mortgage Bank, filed with the Department of
Justice a complaint for estafa against the following Banco Filipino officials in connection with
irregular grants of commercial loans to corporate subsidiaries of Banco Filipino, namely:
Anthony C. Aguirre, Tomas B. Aguirre, Teodoro C. Arcenas, Fortunato M. Dizon, Jr., Alberto C.
Aguirre, Delfin M. Dimagiba, Napoleon L. Buencamino, Enrique M. Zalamea, Jr., Eugenio A.
Osias, Ramon Henares, Benjamin E. Elizaga, Martin L. Calicutan, Eduardo V. Tacolod, Eduardo
F. Quirino, Cynthia Subijano, Solita M. Manalaysay, Hautila D. Jose, Remedios Dupasquier,
Nancy L. Ty and Elena Pallasique.[4]
After conducting preliminary investigation, Rizal 2nd Assistant Provincial Prosecutor
Herminio T. Ubana, Sr. issued two (2) resolutions [5] recommending the filing of information for
estafa against the above-named officials, except for Nancy L. Ty and Elena Pallasique. With the
approval of the Provincial Prosecutor of Rizal, on August 8, 1988, informations [6] were thus filed
against said officials with the Regional Trial Court, Makati, Branch 63.
From the resolutions of the prosecutor, some of the accused-officials moved for a
reconsideration or reinvestigation alleging serious irregularities during the preliminary
investigation, to wit: (a) parties not originally charged were found indictable in said resolutions
and (b) of many who were not included in the resolutions were charged in the informations filed
in court.
On April 10, 1989, Rizal Provincial Prosecutor Mauro M. Castro issued a
resolution[7] granting a reinvestigation.
On March 21, 1991, a panel of investigators composed of 2nd Assistant Prosecutor Edwin
Condaya, 3rd Assistant Prosecutor Domingo Allena and 4th Assistant Prosecutor Eduardo Bautista

prepared a memorandum[8] for Provincial Prosecutor Mauro M. Castro recommending the

dismissal of the charges against the accused for lack of probable cause.
On July 11, 1991, respondent Provincial Prosecutor Castro issued a
resolution[9] reversing the investigating panels recommendation and ordered the prosecution of
petitioners[10] and respondent Fortunato Dizon, Jr.[11]
On or about July 29, 1991, petitioners [12] filed a motion for reconsideration [13] of the July 11,
1991 resolution of Provincial Prosecutor Castro. On the other hand, on July 24, 1991,
respondent Fortunato M. Dizon, Jr. with others filed with the Office of the Secretary of Justice a
petition for review.[14]
On October 2, 1991, Acting Secretary of Justice Silvestre H. Bello dismissed respondent
Dizons petition for review.[15] On March 25, 1992, Secretary of Justice Eduardo G. Montenegro
denied respondent Dizons motion for reconsideration.[16]
On May 18, 1992, respondent Dizon[17] filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus[18] to annul the resolution[19] of Acting Secretary of Justice
Eduardo G. Montenegro, and to order the dismissal of all the criminal cases against him before
the Makati Regional Trial Courts.
On May 28, 1992, Provincial Prosecutor Mauro M. Castro denied the motion for
reconsideration of the petitioners.[20]
On June 19, 1992, petitioners appealed to the Secretary of Justice from the resolution of
respondent Provincial Prosecutor Castro.[21]
On July 13, 1992, Secretary of Justice Franklin M. Drilon dismissed the appeal of
petitioners.[22] On August 24, 1992, Undersecretary Ramon S. Esguerra denied the motion for
reconsideration.[23]
On September 8, 1992, petitioners[24] filed with the Court of Appeals a petition for certiorari,
prohibition and mandamus.[25] They alleged that:

1. The respondents are acting with an uneven hand and, in fact, are acting
oppressively against Remedios Dupasquier when they allow her prosecution while
excluding another similarly situated.
2. the respondent Secretary of Justice committed an act in grave abuse of his
discretion and in excess of his jurisdiction when he sustained the grave abuse of
discretion of the respondent Provincial Prosecutor in substituting his judgment in

place of that of the panel formed by him without first informing the petitioners of the
result of the investigation.
3. the respondents Secretary and Provincial Prosecutor acted in grave abuse of
discretion amounting to an excess of jurisdiction when they continued prosecution of
the petitioners despite lack of basis therefore and despite lack of damage on the part of
Banco Filipino Savings & Mortgage Bank.
On June 18, 1993, the Court of Appeals promulgated a decision [26] dismissing the petition for
lack of merit. On July 5, 1993, petitioners filed a motion for reconsideration.[27]
During the pendency of the motion for reconsideration, [28] on September 03, 1993, the Court
of Appeals promulgated a decision[29] setting aside the resolution[30] of respondent Secretary of
Justice and ordering the dismissal of the criminal cases against respondent Dizon.
Upon learning of the triumph of their co-accused respondent Dizon, Jr.,[31] on September 14,
1993,[32]petitioners filed with the Court of Appeals a supplemental motion for reconsideration and
an urgent motion for the consolidation of CA-G. R. SP No. 28867 and CA-G. R. SP No.
27922. On October 1, 1993, the Court of Appeals denied the motion for reconsideration.[33]
Hence, on November 9, 1993, they filed with the Supreme Court a petition for review on
certiorari[34] praying that the criminal cases against them be dismissed.
On January 10, 1994, the prosecution [35] interposed an appeal via certiorari to the Supreme
Court from the decision of the Court of Appeals.[36]
On motion of petitioners,[37] on August 22, 1994, the Court resolved to consolidate the two
cases.[38]
Petitioners[39] raised several interrelated issues. However, the crucial issue
raised is whether the court may review findings of the prosecutor on the existence of probable
cause sufficient to file the proper information in court and substitute its judgment to that of the
prosecutor in determining the sufficiency of evidence to establish the guilt of petitioners for
estafa.
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.[40]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.
[41]
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.[42] 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.[43]
Consequently, the fact that the investigating prosecutor exonerated some of the co-accused
in the preliminary investigation does not necessarily entitle petitioners to a similar exoneration
where the investigating prosecutor found probable cause to prosecute them for the crime
charged.
The Court finds erroneous the assailed decision of the Court of Appeals reversing the
investigating prosecutors recommendation for the prosecution of respondent Fortunato M.
Dizon, Jr. Courts should give credence, in the absence of a clear showing of arbitrariness, to the
findings and determination of probable cause by prosecutors in a preliminary investigation. [44] We
have repeated this dictum in People v. Cerbo,[45] where we said that:

In our criminal justice system, the public prosecutor has the quasi-judicial discretion
to determine whether or not a criminal case should be filed in court. Courts must
respect the exercise of such discretion when the information filed against the accused
is valid on its face, and no manifest error, grave abuse of discretion or prejudice can
be imputed to the public prosecutor.
Finally, we note that the parties[46] are ventilating before us the merits of their respective
causes or defenses. This is not the occasion for the full and exhaustive display of the parties
evidence. The presence or absence of the elements of the crime is evidentiary in nature that may
be passed upon after a full-blown trial on the merits.[47]
WHEREFORE, the Court:

(1) In G. R. No. 112089, DENIES the petition and AFFIRMS the decision of the
Court of Appeals in CA-G. R. SP No. 28867; and
(2) In G. R. No. 112737, GRANTS the petition and REVERSES the decision of the
Court of Appeals in CA-G. R. SP No. 27922.
Let the two cases be REMANDED to the court of origin for further proceedings.
No costs.
SO ORDERED.

8. AAA vs. Carbonell GR No.171465, June 8, 2007

AAA,*

G.R. No. 171465

Petitioner,
Present:

versus
Santiago, J. (Chairperson),

Ynares-

Austria-Martinez,
Chico-Nazario, and
Nachura, JJ.
HON. ANTONIO A. CARBONELL,
in his capacity as Presiding Judge,
Branch 27, Regional Trial Court,

Promulgated:

San Fernando City, La Union and

ENGR. JAIME O. ARZADON,
Respondents.

June 8, 2007

x ---------------------------------------------------------------------------------------x

DECISION
YNARES-SANTIAGO, J.:

This petition for certiorari[1] assails the December 16,

2005[2] Order of the Regional Trial Court, Branch 27, San Fernando,
La Union in Criminal Case No. 6983, dismissing the rape case filed
against private respondent Jaime O. Arzadon for lack of probable
cause; and its February 3, 2006[3] Order denying petitioners
motion for reconsideration.

Petitioner worked as a secretary at the Arzadon Automotive

and Car Service Center from February 28, 2001 to August 16,
2001. On May 27, 2001 at about6:30 p.m., Arzadon asked her to
deliver a book to an office located at another building but when
she returned to their office, the lights had been turned off and the
gate was closed. Nevertheless, she went inside to get her
handbag.

On her way out, she saw Arzadon standing beside a parked

van holding a pipe. He told her to go near him and upon reaching
his side, he threatened her with the pipe and forced her to lie on
the pavement. He removed her pants and underwear, and
inserted his penis into her vagina. She wept and cried out for
help but to no avail because there was nobody else in the
premises.

Petitioner did not report the incident because Arzadon

threatened to kill her and her family. But when she discovered
that she was pregnant as a consequence of the rape, she
narrated the incident to her parents. On July 24, 2002, petitioner
filed a complaint for rape against Arzadon.

On September 16, 2002, Assistant City Prosecutor Imelda

Cosalan issued a Resolution[4] finding probable cause and
recommending the filing of an information for rape. Arzadon
moved for reconsideration and during the clarificatory hearing
held on October 11, 2002, petitioner testified before the
investigating prosecutor. However, she failed to attend the next
hearing hence, the case was provisionally dismissed.

On March 5, 2003, petitioner filed another AffidavitComplaint[5] with a comprehensive account of the alleged rape
incident. The case was assigned to 2 ndAssistant Provincial
Prosecutor
Georgina Hidalgo. During
the
preliminary
investigation,
petitioner
appeared
for
clarificatory
questioning. On June 11, 2003, the investigating prosecutor
issued a Resolution[6] finding that a prima facie case of rape exists
and recommending the filing of the information.

Arzadon moved for reconsideration and requested that a

panel of prosecutors be constituted to review the case. Thus, a
panel of prosecutors was created and after the clarificatory
questioning,
the panel issued on October
13,
2003 a
[7]
Resolution finding probable cause and denying Arzadons motion
for reconsideration.

An Information[8] for rape was filed before the Regional Trial

Court, Branch 27, San Fernando, La Union on February 6, 2004,
docketed as Criminal Case No. 6415. Thereafter, Arzadon filed a
Motion to Hold in Abeyance All Court Proceedings Including the
Issuance of a Warrant of Arrest and to Determine Probable Cause
for the Purpose of Issuing a Warrant of Arrest. [9] On March 18,
2004, respondent Judge Antonio A. Carbonell granted the motion
and directed petitioner and her witnesses to take the witness
stand for determination of probable cause.

Arzadon also appealed the Resolution of the panel of

prosecutors finding probable cause before the Department of
Justice. On July 9, 2004, then Acting Secretary of Justice
Merceditas Gutierrez found no probable cause and directed the
withdrawal of the Information in Criminal Case No. 6415. [10]

Upon motion for reconsideration by petitioner, however,

Secretary of Justice Raul Gonzales reversed the July 9,
2004 Resolution and issued another Resolution [11] finding that
probable cause exists. Thus, a new Information[12] for rape was
filed against Arzadon docketed as Criminal Case No. 6983.

Consequently, Arzadon filed an Urgent Motion for Judicial

Determination of Probable Cause for the Purpose of Issuing a
Warrant of Arrest.[13] In an Order dated August 11, 2005,
respondent Judge Carbonell granted the motion and directed
petitioner and her witnesses to take the witness stand.

Instead of taking the witness stand, petitioner filed a motion

for reconsideration claiming that the documentary evidence
sufficiently established the existence of probable cause. Pending

resolution thereof, she likewise filed a petition [14] with this Court
for the transfer of venue of Criminal Case No. 6983. The case was
docketed as Administrative Matter No. 05-12-756-RTC and
entitled Re: Transfer of Venue of Criminal Case No. 6983, formerly
Criminal Case No. 6415, from the Regional Trial Court, Branch
27, San Fernando City, La Union, to any Court in Metro Manila.

In a Resolution[15] dated January 18, 2006, the Court granted

petitioners request for transfer of venue. The case was raffled to
the Regional Trial Court of Manila, Branch 25, and docketed as
Criminal Case No. 06-242289. However, the proceedings have
been suspended pending the resolution of this petition.

Meanwhile, on December 16, 2005, respondent Judge

Carbonell issued the assailed Order dismissing Criminal Case No.
6983 for lack of probable cause. Petitioners motion for
reconsideration was denied hence, this petition.

Petitioner raises the following issues:[16]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION WHEN IT GRANTED THE MOTION FOR
DETERMINATION OF PROBABLE CAUSE FILED BY THE
PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF
THE MOTION FOR RECONSIDERATION

II

RESPONDENT JUDGE COMMITTED FURTHER ACTS

CONSTITUTING
GRAVE
ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION
WHEN IT ORDERED THE COMPLAINANT AND WITNESSES
TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING
PROBABLE CAUSE

III

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF

DISCRETION WHEN HE REFUSED TO INHIBIT FROM
FURTHER HANDLING THE CASE DESPITE WHISPERS OF
DOUBT ON HIS BIAS AND PARTIALITY

IV

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF

DISCRETION WHEN IT ISSUED THE ORDER OF FEBRUARY
3, 2006, DENYING THE MOTION FOR RECONSIDERATION,
DESPITE THE SUPREME COURT RESOLUTION OF JANUARY
18, 2006, GRANTING THE TRANSFER OF VENUE

Petitioner contends
personally examine the
satisfying himself of the
issuance of a warrant of
Judge Carbonell should

that the judge is not required to

complainant and her witnesses in
existence of probable cause for the
arrest. She argues that respondent
have taken into consideration the

documentary evidence as well as the transcript of stenographic

notes which sufficiently established the existence of probable
cause.

Arzadon claims that the petition should be dismissed

outright for being the wrong mode of appeal, it appearing that the
issues raised by petitioner properly fall under an action
for certiorari under Rule 65, and not Rule 45, of the Rules of Court.

Respondent Judge Carbonell argues in his Comment [17] that

the finding of probable cause by the investigating prosecutor is
not binding or obligatory, and that he was justified in requiring
petitioner and her witnesses to take the witness stand in order to
determine probable cause.

The issues for resolution are 1) whether the petition should

be dismissed for being the wrong mode of appeal; and 2) whether
respondent Judge Carbonell acted with grave abuse of discretion
in dismissing Criminal Case No. 6983 for lack of probable cause.

The petition has merit.

A petition for review on certiorari under Rule 45 is distinct

from a petition for certiorari under Rule 65 in that the former
brings up for review errors of judgment while the latter concerns
errors of jurisdiction or grave abuse of discretion amounting to
lack or excess of jurisdiction. Grave abuse of discretion is not an
allowable ground under Rule 45. However, a petition for review
on certiorari under Rule 45 may be considered a petition
for certiorari under Rule 65 where it is alleged that the

respondents abused their discretion in their questioned actions,

as in the instant case.[18] While petitioner claims to have brought
the instant action under Rule 45, the grounds raised herein
involve an alleged grave abuse of discretion on the part of
respondent Judge Carbonell. Accordingly, the Court shall treat the
same as a petition for certiorari under Rule 65.

However, we must point out the procedural error committed

by petitioner in directly filing the instant petition before this Court
instead of the Court of Appeals, thereby violating the principle of
judicial hierarchy of courts. It is well-settled that although the
Supreme Court, Court of Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue writs of certiorari,
prohibition,
mandamus, quo
warranto, habeas
corpus and
injunction, such concurrence does not give the petitioner
unrestricted freedom of choice of court forum. [19] In this case,
however, the gravity of the offense charged and the length of
time that has passed since the filing of the complaint for rape,
compel us to resolve the present controversy in order to avoid
further delay.[20]

We thus proceed to the issue of whether respondent Judge

Carbonell acted with grave abuse of discretion in dismissing
Criminal Case No. 6983 for lack of probable cause.

We rule in the affirmative.

Respondent Judge Carbonell dismissed Criminal Case No.

6983 for lack of probable cause on the ground that petitioner and
her witnesses failed to comply with his orders to take the witness
stand. Thus

In RESUME therefore, as indubitably borne out by

the case record and considering that the Private
Prosecutor, despite several admonitions contumaciously
nay contemptuously refused to comply/obey this Courts
Orders of March 18, 2004, August 11, 2005 and eight (8)
other similar Orders issued in open Court that directed
the complainant/witnesses to take the witness stand to be
asked probing/clarificatory questions consonant with cited
jurisprudential rulings of the Supreme Court, this Court in
the exercise of its discretion and sound judgment finds
and so holds that NO probable cause was established to
warrant the issuance of an arrest order and the further
prosecution of the instant case.

Record also shows in no unclear terms that in all the

scheduled hearings of the case, the accused had always
been present. A contrario, the private complainant failed
to appear during the last four (4) consecutive settings
despite due notice without giving any explanation, which
to the mind of the Court may indicate an apparent lack of
interest in the further prosecution of this case. That
failure may even be construed as a confirmation of the
Defenses contention reflected in the case record, that
the only party interested in this case is the Private
prosecutor, prodded by the accuseds alleged hostile
siblings to continue with the case.

WHEREFORE, premises considered, for utter lack of

probable cause, the instant case is hereby ordered
DISMISSED.[21]

He claims that under Section 2, Article III of the 1987 Constitution,

no 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.

However, in the leading case of Soliven v. Makasiar,[22] the

Court explained that this constitutional provision does not
mandatorily require the judge to personally examine the
complainant and her witnesses. Instead, he may opt to
personally evaluate the report and supporting documents
submitted by the prosecutor or he may disregard the prosecutors
report and require the submission of supporting affidavits of
witnesses. Thus:

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

supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscals
report and require the submission of supporting affidavits
of witnesses to aid him in arriving at a conclusion as to
the existence of probable cause.

Sound policy dictates this procedure, otherwise

judges would by unduly laden with the preliminary
examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases
filed before their courts.[23]

We reiterated the above ruling in the case of Webb v. De

Leon,[24] where we held that before issuing warrants of arrest,
judges merely determine 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.[25]

It is well to remember that there is a distinction between the

preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest and the preliminary investigation
proper which ascertains whether the offender should be held for
trial or be released. 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 is the function of the investigating

prosecutor.[26]

True, there are cases where the circumstances may call for
the judges personal examination of the complainant and his
witnesses. But it must be emphasized that such personal
examination is not mandatory and indispensable in the
determination of probable cause for the issuance of a warrant of
arrest. The necessity arises only when there is an utter failure of
the evidence to show the existence of probable cause.
[27]
Otherwise, the judge may rely on the report of the
investigating prosecutor, provided that he likewise evaluates the
documentary evidence in support thereof.

Indeed, what the law requires as personal determination on

the part of the judge is that he should not rely solely on the report
of the investigating prosecutor. InOkabe v. Gutierrez,[28] we
stressed that the judge should consider not only the report of the
investigating prosecutor but also the affidavit and the
documentary evidence of the parties, the counter-affidavit of the
accused and his witnesses, as well as the transcript of
stenographic notes taken during the preliminary investigation, if
any, submitted to the court by the investigating prosecutor upon
the filing of the Information. [29] If the report, taken together with
the supporting evidence, is sufficient to sustain a finding of
probable cause, it is not compulsory that a personal examination
of the complainant and his witnesses be conducted.

In this case, respondent Judge Carbonell dismissed Criminal

Case No. 6983 without taking into consideration the June 11, 2003
Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo,
the October 13, 2003 Resolution of the panel of prosecutors, and

the July 1, 2005 Resolution of the Department of Justice, all of

which
sustain
a
finding
of
probable
cause
against
Arzadon. Moreover, he failed to evaluate the evidence in support
thereof. Respondent judges finding of lack of probable cause was
premised only on the complainants and her witnesses absence
during the hearing scheduled by the respondent judge for the
judicial determination of probable cause.

Petitioner narrated in detail the alleged rape incident both in

her Sinumpaang Salaysay[30] dated July 24, 2002 and ComplaintAffidavit[31] dated March
5,
2003. She
attended
several
clarificatory hearings that were conducted in the instant
case. The transcript of stenographic notes [32] of the hearing held
on October 11, 2002 shows that she positively identified Arzadon
as her assailant, and the specific time and place of the
incident. She also claimed that she bore a child as a result of the
rape and, in support of her contentions, presented the child and
her birth certificate as evidence. In contrast, Arzadon merely
relied on the defense of alibi which is the weakest of all defenses.

After a careful examination of the records, we find that there

is sufficient evidence to establish probable cause. The gravamen
of rape is the carnal knowledge by the accused of the private
complainant under any of the circumstances provided in Article
335 of the Revised Penal Code, as amended. [33] Petitioner has
categorically stated that Arzadon raped her, recounting her ordeal
in detail during the preliminary investigations. Taken with the
other evidence presented before the investigating prosecutors,
such is sufficient for purposes of establishing probable cause. It is
well-settled that a finding of probable cause need not be based on
clear
and
convincing
evidence
beyond
reasonable
doubt. Probable cause is that which engenders 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 does not
require that the evidence would justify conviction. [34]

It is clear therefore that respondent Judge Carbonell gravely

abused his discretion in dismissing Criminal Case No. 6983 for
lack of probable cause on the ground that petitioner and her
witnesses failed to take the witness stand. Considering there is
ample evidence and sufficient basis on record to support a finding
of probable cause, it was unnecessary for him to take the further
step of examining the petitioner and her witnesses. Moreover, he
erred in holding that petitioners absences in the scheduled
hearings were indicative of a lack of interest in prosecuting the
case. In fact, the records show that she has relentlessly pursued
the same.

Needless to say, a full-blown trial is to be preferred to ferret

out the truth.[35] As it were, the incidents of this case have been
pending for almost five years without having even passed the
preliminary investigation stage. Suffice to say that the credibility
of petitioner may be tested during the trial where the respective
allegations and defenses of the complainant and the accused are
properly ventilated. It is only then that the truth as to Arzadons
innocence or guilt can be determined.

WHEREFORE, the petition is GRANTED. The Orders of the

Regional Trial Court, Branch 27, San Fernando, La Union dated
December 16, 2005, and February 3, 2006 dismissing Criminal
Case No. 6983 for lack of probable cause are REVERSED and SET
ASIDE, and the
Information
in
the
said
case
is
herebyREINSTATED. The
Regional
Trial
Court,
Branch
25, Manila is DIRECTED to take cognizance of the case and let

the records thereof be REMANDED to the said court for further

proceedings.

SO ORDERED.

9. Crespo vs. Mogul 151 SCRA 462

G.R. No. L-53373 June 30, 1987
MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA
CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR
GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case
filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the
merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed
an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which
was docketed as Criminal Case No. CCCIX-52 (Quezon) '77. 1 When the case was set for arraigment the accused
filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the
resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor,

A motion for reconsideration of the order was denied in the order of

August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to
elevate the matter to the appellate court. 3
Leodegario L. Mogul, denied the motion.

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the
accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August
17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the
accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he
recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the
Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to
compel the arraignment of the accused in the case until the Department of Justice shall have finally
resolved the petition for review. 7

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition
for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move
for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for
insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial
court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978
the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the
motion and set the arraigniment stating:

ORDER
For resolution is a motion to dismiss this rase filed by the procuting fiscal premised
on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident
from Annex "A" of the motion wherein, among other things, the Fiscal is urged to
move for dismissal for the reason that the check involved having been issued for the
payment of a pre-existing obligation the Hability of the drawer can only be civil and
not criminal.
The motion's thrust being to induce this Court to resolve the innocence of the
accused on evidence not before it but on that adduced before the Undersecretary of
Justice, a matter that not only disregards the requirements of due process but also
erodes the Court's independence and integrity, the motion is considered as without
merit and therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at
9:00 o'clock in the moming.
SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus with petition for the
issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals
that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of
Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979
the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said
decision filed by the accused was denied in a resolution of February 19, 1980. 15

Hence this petition for review of said decision was filed by accused whereby petitioner prays that
said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing
his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the
information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the
said case, and declaring the obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the
petition required the respondents to comment to the petition, not to file a motiod to dismiss, within
ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the
petition be given due course, it being meritorious. Private respondent through counsel filed his reply
to the comment and a separate conunent to the petition asking that the petition be dismissed. In the
resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the

Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due
course to the petition.
Petitioner and private respondent filed their respective briefs while the Solicitor General filed a
Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be
reversed and that respondent Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by complaint or by information
shall be prosecuted under the direction and control of the fiscal. 17 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 fonow 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. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded

Prosecuting officers under the power vested

in them by 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. 21 They have equally the legal duty not to prosecute when after an investigation
they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22
prosecution by private persons. 19 It cannot be controlled by the complainant.

20

It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a
puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the
fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court
to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that
the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order
the fiscal to prosecute or file an information within a certain period of time, since this would interfere with
the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of
the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no
error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the reinvestigation show either that the defendant is innocent or that his guilt may not be established beyond
reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did,
or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally
prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be
issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary
for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of
the law in an op pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any limitation or control. The same is
subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe
and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or
reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a
motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the
filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and
the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused. 33

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists 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. 34 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 rase thereafter should be addressed for
the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the
substantial rights of the accused. 36 or the right of the People to due process of law. 36a
Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the fiscal be expected to handle the
prosecution of the case thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is
done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in
spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its own independent
judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk
from the responsibility of appearing for the People of the Philippines even under such circumstances
much less should he abandon the prosecution of the case leaving it to the hands of a private
prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is
to continue to appear for the prosecution although he may turn over the presentation of the evidence to
the private prosecutor but still under his direction and control. 38
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case 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. The determination
of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of
the investigation.
In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who
reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice

should, as far as practicable, refrain from entertaining a petition for review or appeal from the action
of the fiscal, when the complaint or information has already been filed in Court. The matter should be
left entirely for the determination of the Court.
WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs.
SO ORDERED.

10. Jose Antonio Leviste vs. Hon. Elmo Alameda, et. al. GR No. 182677, August 3, 2010

JOSE ANTONIO C. LEVISTE,

Petitioner,

G.R. No. 182677

Present:

- versus -

HON. ELMO M. ALAMEDA, HON.

RAUL M. GONZALEZ, HON.
EMMANUEL Y. VELASCO,
HEIRS OF THE LATE RAFAEL
DE LAS ALAS,
Respondents.

CARPIO MORALES, Chairperson,

NACHURA,*
BERSAMIN,
ABAD,** and
VILLARAMA, JR., JJ.
Promulgated:
August 3, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CARPIO MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present petition for
review filed on May 30, 2008 the August 30, 2007 Decision[1] and the April 18,
2008 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed
the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the
motion for reconsideration, respectively.

Petitioner was, by Information[3] of January 16, 2007, charged

with homicide for the death of Rafael de las Alas on January 12, 2007 before the
Regional Trial Court (RTC) of Makati City. Branch 150 to which the case was
raffled, presided by Judge Elmo Alameda, forthwith issued a commitment
order[4] against petitioner who was placed under police custody while confined at
the Makati Medical Center.[5]
After petitioner posted a P40,000 cash bond which the trial court approved,
he was released from detention, and his arraignment was set on January 24,
2007.
[6]

The private complainants-heirs of De las Alas filed, with the conformity of

the public prosecutor, an Urgent Omnibus Motion [7] praying, inter alia, for the
deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper offense.
The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring
petitioners arraignment and allowing the prosecution to conduct a reinvestigation
to determine the proper offense and submit a recommendation within 30 days from
its inception, inter alia; and (2) Order of January 31, 2007[9] denying
reconsideration of the first order. Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion

before the trial court to defer acting on the public prosecutors recommendation on
the proper offense until after the appellate court resolves his application for
injunctive reliefs, or alternatively, to grant him time to comment on the
prosecutors recommendation and thereafter set a hearing for the judicial
determination of probable cause.[10] Petitioner also separately moved for the
inhibition of Judge Alameda with prayer to defer action on the admission of the
Amended Information.[11]

The trial court nonetheless issued the other assailed orders, viz: (1) Order
of February 7, 2007[12] that admitted the Amended Information[13] for murder and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
2007[14] which set the arraignment on February 13, 2007. Petitioner questioned
these two orders via supplemental petition before the appellate court.
The appellate court dismissed petitioners petition, hence, his present
petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE

THE REINVESTIGATION OF THE CRIMINAL CASE BELOW
WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF
APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE
HAVING NO BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOS
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT,
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS
HONORABLE COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN
HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY
BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE
BEING
ADDUCED
DURING
THE
REINVESTIGATION,
RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.[15] (emphasis in the
original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court to enter a
plea of not guilty for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application
for Admission to Bail Ex Abundanti Cautela[16] which the trial court, after hearings
thereon, granted by Order of May 21, 2007,[17] it finding that the evidence of guilt
for the crime of murder is not strong. It accordingly allowed petitioner to post bail
in the amount of P300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate
court, went on to try petitioner under the Amended Information. By Decision of
January 14, 2009, the trial court found petitioner guilty of homicide, sentencing him
to suffer an indeterminate penalty of six years and one day of prision mayor as
minimum to 12 years and one day of reclusion temporal as maximum. From the
Decision, petitioner filed an appeal to the appellate court, docketed as CA-G.R. CR
No. 32159, during the pendency of which he filed an urgent application for
admission to bail pending appeal. The appellate court denied petitioners
application which this Court, in G.R. No. 189122, affirmed by Decision of March
17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded.[18]
Waiver on the part of the accused must be distinguished from mootness
of the petition, for in the present case, petitioner did not, by his active participation
in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from challenging
the validity of his arrest or the legality of the warrant issued therefor, or from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve the matter as early as
practicable but not later than the start of the trial of the case.

By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior to his arraignment.
During the arraignmenton March 21, 2007, petitioner refused to enter his plea since
the issues he raised were still pending resolution by the appellate court, thus
prompting the trial court to enter a plea of not guilty for him.
The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary investigation applies only if
he voluntarily enters his plea and participates during trial, without previously
invoking his objections thereto.[19] There must be clear and convincing proofthat
petitioner had an actual intention to relinquish his right to question the existence of
probable cause. When the only proof of intention rests on what a party does, his
act should be so manifestly consistent with, and indicative of, an intent to
voluntarily and unequivocally relinquish the particular right that no other
explanation of his conduct is possible.[20]
From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite resolution
of the objections he so timely invoked. Other than its allegation of active
participation, the OSG offered no clear and convincing proof that petitioners
participation in the trial was unconditional with the intent to voluntarily and
unequivocally abandon his petition. In fact, on January 26, 2010, petitioner still
moved for the early resolution of the present petition.[21]
Whatever delay arising from petitioners availment of remedies against the
trial courts Orders cannot be imputed to petitioner to operate as a valid waiver on
his part. Neither can the non-issuance of a writ of preliminary injunction be
deemed as a voluntary relinquishment of petitioners principal prayer. The nonissuance of such injunctive relief only means that the appellate court did not
preliminarily find any exception[22] to the long-standing doctrine that injunction
will not lie to enjoin a criminal prosecution.[23] Consequently, the trial of the case
took its course.

The petition is now moot, however, in view of the trial courts rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would be
of no practical use or value.[24]
The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the present
petition. Assuming that there is ground[25] to annul the finding of probable cause for
murder, there is no practical use or value in abrogating the concluded proceedings
and retrying the case under the original Information for homicide just to arrive,
more likely or even definitely, at the same conviction of homicide. Mootness
would have also set in had petitioner been convicted of murder, for proof beyond
reasonable doubt, which is much higher than probable cause, would have been
established in that instance.
Instead, however, of denying the petition outright on the ground of
mootness, the Court proceeds to resolve the legal issues in order to formulate
controlling principles to guide the bench, bar and public. [26] In the present case,
there is compelling reason to clarify the remedies available before and after the
filing of an information in cases subject of inquest.
After going over into the substance of the petition and the assailed issuances,
the Court finds no reversible error on the part of the appellate court in finding no
grave abuse of discretion in the issuance of the four trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has no
right under the Rules to seek from the trial court an investigation or reevaluation of
the case except through a petition for review before the Department of Justice
(DOJ). In cases when an accused is arrested without a warrant, petitioner contends
that the remedy of preliminary investigation belongs only to the accused.
The contention lacks merit.

Section 6,[27] Rule 112 of the Rules of Court reads:

When a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint or
information may be filed by a prosecutor without need of such
investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor,
the complaint may be filed by the offended party or a peace officer
directly with the proper court on the basis of the affidavit of the offended
party or arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this Rule, but
he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, in the presence of his counsel. Notwithstanding
the waiver, he may apply for bail and the investigation must be
terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)

A preliminary investigation is required before the filing of a complaint or

information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine. [28] As an exception, the rules
provide that there is no need for a preliminary investigation in cases of a lawful
arrest without a warrant[29] involving such type of offense, so long as an inquest,
where available, has been conducted.[30]
Inquest is defined as an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained without
the benefit of a warrant of arrest issued by the court for the purpose of determining
whether said persons should remain under custody and correspondingly be charged
in court.[31]

It is imperative to first take a closer look at the predicament of both the

arrested person and the private complainant during the brief period of inquest, to
grasp the respective remedies available to them before and after the filing of a
complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN
COURT, the private complainant may proceed in coordinating with the arresting
officer and the inquest officer during the latters conduct of inquest. Meanwhile,
the arrested person has the option to avail of a 15-day preliminary investigation,
provided he duly signs a waiver of any objection against delay in his delivery to
the proper judicial authorities under Article 125 of the Revised Penal Code. For
obvious reasons, this remedy is not available to the private complainant since he
cannot waive what he does not have. The benefit of the provisions of Article 125,
which requires the filing of a complaint or information with the proper judicial
authorities within the applicable period,[32] belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of
an information in court or the immediate release of the arrested person. [33] Notably,
the rules on inquest do not provide for a motion for reconsideration.[34]
Contrary to petitioners position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available in cases
subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by
petition by a proper party under such rules as the Department of Justice may
prescribe.[35] The rule referred to is the 2000 National Prosecution Service Rule
on Appeal,[36] Section 1 of which provides that the Rule shall apply to appeals
from resolutions x x x in cases subject of preliminary investigation/
reinvestigation. In cases subject of inquest, therefore, the private party should
first avail of a preliminary investigation or reinvestigation, if any, before elevating
the matter to the DOJ Secretary.

In case the inquest proceedings yield no probable cause, the private

complainant may pursue the case through the regular course of a preliminary
investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the
rules yet provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present case,
a similar right to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor.[37] The private
complainant in a criminal case is merely a witness and not a party to the case and
cannot, by himself, ask for the reinvestigation of the case after the information had
been filed in court, the proper party for that being the public prosecutor who has
the control of the prosecution of the case.[38] Thus, in cases where the private
complainant is allowed to intervene by counsel in the criminal action, [39] and is
granted the authority to prosecute,[40] the private complainant, by counsel and with
the conformity of the public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions and
to ensure that the information is sufficient in form and substance.[41]

x x x Since no evidence has been presented at that stage, the error

would appear or be discoverable from a review of the records of the
preliminary investigation. Of course, that fact may be perceived by the
trial judge himself but, again, realistically it will be the prosecutor who
can initially determine the same. That is why such error need not be

manifest or evident, nor is it required that such nuances as offenses

includible in the offense charged be taken into account. It necessarily
follows, therefore, that the prosecutor can and should institute
remedial measures[.][42] (emphasis and underscoring supplied)

The prosecution of crimes appertains to the executive department of the

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 what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best appreciated
by prosecutors.[43]
The prosecutions discretion is not boundless or infinite, however.[44] The
standing principle is that once an information is filed in court, any remedial
measure such as a reinvestigation must be addressed to the sound discretion of the
court. Interestingly, petitioner supports this view.[45] Indeed, the Court ruled in one
case that:
The rule is now well settled that once a complaint or information is
filed in court, any disposition of the case, whether as to its dismissal or
the conviction or the acquittal of the accused, rests in the sound discretion
of the court. Although the prosecutor retains the direction and control of
the prosecution of criminal cases even when the case is already in court,
he cannot impose his opinion upon the tribunal. For while it is true that
the prosecutor has the quasi-judicial discretion to determine whether or
not a criminal case should be filed in court, once the case had already
been brought therein any disposition the prosecutor may deem proper
thereafter

should be addressed to the court for its consideration and approval. 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.
xxxx
In such an instance, before a re-investigation of the case may be
conducted by the public prosecutor, the permission or consent of the
court must be secured. If after such re-investigation the prosecution finds
a cogent basis to withdraw the information or otherwise cause the
dismissal of the case, such proposed course of action may be taken but
shall likewise be addressed to the sound discretion of the court.
[46]
(underscoring supplied)

While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to
be preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for reinvestigation of
a criminal case pending before it.
Once the trial court grants the prosecutions motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm of the
Government. Having brought the case back to the drawing board, the prosecution
is thus equipped with discretion wide and far reaching regarding the disposition
thereof,[48] subject to the trial courts approval of the resulting proposed course of
action.
Since a reinvestigation may entail a modification of the criminal information
as what happened in the present case, the Courts holding is bolstered by the rule
on amendment of an information under Section 14, Rule 110 of the Rules of Court:
A complaint or information may be amended, in form or in
substance, without leave of court, at any time before the accused
enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the

nature of the offense charged in or excludes any accused from the
complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The
court shall state its reasons in resolving the motion and copies of its order
shall be furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the
proper offense in accordance with section 11, Rule 119, provided the
accused would not be placed in double jeopardy. The court may require
the witnesses to give bail for their appearance at the trial. (emphasis
supplied)

In fine, before the accused enters a plea, a formal or substantial amendment

of the complaint or information may be made without leave of court. [49] After the
entry of a plea, only a formal amendment may be made but with leave of court and
only if it does not prejudice the rights of the accused. After arraignment, a
substantial amendment is proscribed except if the same is beneficial to the accused.
[50]

It must be clarified though that not all defects in an information are curable
by amendment prior to entry of plea. An information which is void ab
initio cannot be amended to obviate a ground for quashal.[51] An amendment which
operates to vest jurisdiction upon the trial court is likewise impermissible.[52]

Considering the general rule that an information may be amended even in

substance and even without leave of court at any time before entry of plea, does it
mean that the conduct of a reinvestigation at that stage is a mere superfluity?
It is not.

Any remedial measure springing from the reinvestigation be it a complete

disposition or an intermediate modification [53] of the charge is eventually
addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial
court would ultimately make the determination on the proposed course of action, it
is for the prosecution to consider whether a reinvestigation is necessary to adduce
and review the evidence for purposes of buttressing the appropriate motion to be
filed in court.
More importantly, reinvestigation is required in cases involving a substantial
amendment of the information. Due process of law demands that no substantial
amendment of an information may be admitted without conducting another or a
new preliminary investigation. In Matalam v. The 2nd Division of the
Sandiganbayan,[54] the Court ruled that a substantial amendment in an information
entitles an accused to another preliminary investigation, unless the amended
information contains a charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information
from homicide to murder is considered a substantial amendment, which would
make it not just a right but a duty of the prosecution to ask for a preliminary
investigation.
The Court answers in the affirmative.
A substantial amendment consists of the recital of facts
constituting the offense charged and determinative of the jurisdiction
of the court. All other matters are merely of form. The following have
been held to be mere formal amendments: (1) new allegations
which relate only to the range of the penalty that the court might impose
in the event of conviction; (2) an amendment which does not charge
another offense different or distinct from that charged in the original one;
(3) additional allegations which do not alter the prosecutions theory of
the case so as to cause surprise to the accused and affect the form of
defense he has or will assume; (4) an amendment which does not
adversely affect any substantial right of the accused; and (5) an
amendment that merely adds specifications to eliminate vagueness in the
information and not to introduce new and material facts, and merely
states with additional precision something which is already contained in

the original information and which adds nothing essential for conviction
for the crime charged.
The test as to whether a defendant is prejudiced by the
amendment is whether a defense under the information as it originally
stood would be available after the amendment is made, and whether any
evidence defendant might have would be equally applicable to the
information in the one form as in the other. An amendment to an
information which does not change the nature of the crime alleged therein
does not affect the essence of the offense or cause surprise or deprive the
accused of an opportunity to meet the new averment had each been held
to be one of form and not of substance. [55] (emphasis and underscoring
supplied)

Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another preliminary
investigation. Notatu dignum is the fact that both the original Information and the
amended Information in Matalam were similarly charging the accused with
violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
In one case,[56] it was squarely held that the amendment of the Information
from homicide to murder is one of substance with very serious
consequences.[57] The amendment involved in the present case consists of
additional averments of the circumstances of treachery, evident premeditation, and
cruelty, which qualify the offense charged from homicide to murder. It being a
new and material element of the offense, petitioner should be given the chance to
adduce evidence on the matter. Not being merely clarificatory, the amendment
essentially varies the prosecutions original theory of the case and certainly affects
not just the form but the weight of defense to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v.
Cajigal,[59] wherein the amendment of the caption of the Information from
homicide to murder was not considered substantial because there was no real
change in the recital of facts constituting the offense charged as alleged in the body
of the Information, as the allegations of qualifying circumstances were already
clearly embedded in the original Information. Buhat pointed out that the original
Information for homicide already alleged the use of superior strength,

while Pacoy states that the averments in the amended Information for murder are
exactly the same as those already alleged in the original Information for
homicide. None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the
fact that what was conducted in the present case was a reinvestigation does not
invalidate the substantial amendment of the Information. There is no substantial
distinction between a preliminary investigation and a reinvestigation since both are
conducted in the same manner and for the same objective of determining whether
there exists 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.[60] What is essential is that petitioner was placed on guard to defend
himself from the charge of murder[61] after the claimed circumstances were made
known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v.
Court of Appeals states that the rules do not even require, as a condition sine qua
non to the validity of a preliminary investigation, the presence of the respondent as
long as efforts to reach him were made and an opportunity to controvert the
complainants evidence was accorded him.[62]
In his second assignment of error, petitioner basically assails the hurried
issuance of the last two assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the first two trial court
Orders allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the course
of the principal case unless a temporary retraining order or a writ of preliminary
injunction has been issued.[63] The appellate court, by Resolutionof February 15,
2007,[64] denied petitioners application for a temporary restraining order and writ
of preliminary injunction. Supplementary efforts to seek injunctive reliefs proved
futile.[65] The appellate court thus did not err in finding no grave abuse of
discretion on the part of the trial court when it proceeded with the case and
eventually arraigned the accused on March 21, 2007, there being no injunction
order from the appellate court. Moreover, petitioner opted to forego appealing to
the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment.[66]
Regarding petitioners protestations of haste, suffice to state that the pace in
resolving incidents of the case is not per se an indication of bias. In Santos-Concio
v. Department of Justice,[67] the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious performance
of functions. For ones prompt dispatch may be anothers undue
haste. The orderly administration of justice remains as the paramount
and constant consideration, with particular regard of the circumstances
peculiar to each case.
The presumption of regularity includes the public officers official
actuations in all phases of work. Consistent with such presumption, it
was incumbent upon petitioners to present contradictory evidence other
than a mere tallying of days or numerical calculation. This, petitioners
failed to discharge. The swift completion of the Investigating Panels
initial task cannot be relegated as shoddy or shady without discounting
the presumably regular performance of not just one but five state
prosecutors.[68]

There is no ground for petitioners protestations against the DOJ Secretarys

sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting City
Prosecutor of Makati City for the present case[69] and the latters conformity to the
motion for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the public

prosecutor who will conduct the reinvestigation or preliminary investigation.
[70]
There is a hierarchy of officials in the prosecutory arm of the executive branch
headed by the Secretary of Justice[71] who is vested with the prerogative to appoint
a special prosecutor or designate an acting prosecutor to handle a particular case,
which broad power of control has been recognized by jurisprudence.[72]
As for the trial courts ignoring the DOJ Secretarys uncontested statements
to the media which aired his opinion that if the assailant merely intended to maim
and not to kill the victim, one bullet would have sufficed the DOJ Secretary
reportedly uttered that the filing of the case of homicide against ano against
Levistelintek naman eh I told you to watch over that case there should be a
report about the ballistics, about the paraffin, etc., then thats not a complete
investigation, thats why you should use that as a ground no abuse of
discretion, much less a grave one, can be imputed to it.
The statements of the DOJ Secretary do not evince a determination to file
the Information even in the absence of probable cause.[73] On the contrary, the
remarks merely underscored the importance of securing basic investigative reports
to support a finding of probable cause. The original Resolution even recognized
that probable cause for the crime of murder cannot be determined based on the
evidence obtained [u]nless and until a more thorough investigation is
conducted and eyewitness/es [is/]are presented in evidence[.][74]
The trial court concluded that the wound sustained by the victim at the back
of his head, the absence of paraffin test and ballistic examination, and the handling
of physical evidence,[75] as rationalized by the prosecution in its motion, are
sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail
hearings does not affect the prior determination of probable cause because, as the
appellate court correctly stated, the standard of strong evidence of guilt which is
sufficient to deny bail to an accused is markedly higher than the standard of
judicial probable cause which is sufficient to initiate a criminal case.[76]

In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced during
the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause
exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has
the quasi-judicial authority to determine whether or not a criminal case must be
filed in court. Whether that function has been correctly discharged by the public
prosecutor, i.e., whether 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.[77]
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted, there is necessity
for placing the accused under custody in order not to frustrate the ends of
justice. If the judge finds no probable cause, the judge cannot be forced to issue
the arrest warrant.[78] Paragraph (a), Section 5,[79] Rule 112 of the Rules of Court
outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a
mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed with
the court is first and foremost to determine the existence or non-existence of
probable cause for the arrest of the accused.[80]

What the Constitution underscores is the exclusive and personal

responsibility of the issuing judge to satisfy himself of the existence of
probable cause. But 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 supporting
documents submitted by the prosecutor regarding the existence of
probable cause, and on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if he is not
satisfied that probable cause exists, he may disregard the prosecutors
report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause.
[81]
(emphasis and underscoring supplied)

The rules do not require cases to be set for hearing to determine probable
cause for the issuance of a warrant of arrest of the accused before any warrant may
be issued.[82] Petitioner thus cannot, as a matter of right, insist on a hearing for
judicial determination of probable cause. Certainly, petitioner cannot determine
beforehand how cursory or exhaustive the [judge's] examination of the records
should be [since t]he extent of the judges examination depends on the exercise of
his sound discretion as the circumstances of the case require. [83] In one case, the
Court emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure
are mandatory, and as such, the judge must determine the presence or
absence of probable cause within such periods. The Sandiganbayans
determination of probable cause is made ex parte and is summary in
nature, not adversarial. The Judge should not be stymied and
distracted from his determination of probable cause by needless
motions for determination of probable cause filed by the accused.
[84]
(emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no

circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid conduct

of
reinvestigation. It
is
not
material
that
no
new
matter
or evidence was presented during the reinvestigation of the case. It should

be stressed that reinvestigation, as the word itself implies, is merely a repeat

investigation of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and reevaluate its findings and the evidence already submitted.[85]
Moreover, under Rule 45 of the Rules of Court, only questions of law may
be raised in, and be subject of, a petition for review on certiorari since this Court is
not a trier of facts. The Court cannot thus review the evidence adduced by the
parties on the issue of the absence or presence of probable cause, as there exists no
exceptional circumstances to warrant a factual review.[86]
In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to resolving only
errors of jurisdiction. It is not to stray at will and resolve questions and issues
beyond its competence, such as an error of judgment. [87] The courts duty in the
pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion. Although it is possible that error may be
committed in the discharge of lawful functions, this does not render the act
amenable to correction and annulment by the extraordinary remedy of certiorari,
absent any showing of grave abuse of discretion amounting to excess of
jurisdiction.[88]

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution

of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.
11. Magestrado vs. People GR. No. 148072, July 10, 2009

FRANCISCO

G.R. No. 148072

MAGESTRADO,
Petitioner
,

Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and

PEOPLE
THE PHILIPPINESand
ELENA M. LIBROJO

OF

NACHURA, JJ.

Promulgated:

Respond
ents.
July 10, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

This Petition for Review on Certiorari seeks to reverse the

(1) Resolution[1] dated 5 March 2001 of the Court of Appeals in CAG.R. SP No. 63293 entitled, Francisco Magestrado v. Hon. Estrella
T. Estrada, in her capacity as the Presiding Judge of Regional Trial
Court, Branch 83 of Quezon City, People of the Philippines and
Elena M. Librojo, which dismissed petitioner Francisco
Magestrados Petition for Certiorari for being the wrong remedy;
and (2) Resolution[2]dated 3 May 2001 of the same Court denying
petitioners motion for reconsideration.

Private respondent Elena M. Librojo filed a criminal complaint[3] for

perjury against petitioner with the Office of the City Prosecutor of Quezon City,
which was docketed as I.S. No. 98-3900.

After the filing of petitioners counter-affidavit and the appended pleadings,

the Office of the City Prosecutor recommended the filing of an information for
perjury against petitioner. Thus, Assistant City Prosecutor Josephine Z.
Fernandez filed an information for perjury against petitioner with the
Metropolitan Trial Court (MeTC) of Quezon City. Pertinent portions of the
information are hereby quoted as follows:

That on or about the 27th day of December, 1997,

in Quezon City, Philippines, the said accused, did then
and there willfully, unlawfully and feloniously and
knowingly make an untruthful statement under oath upon
a material matter before a competent officer authorized
to receive and administer oath and which the law so
require, to wit: the said accused subscribe and swore to
an Affidavit of Loss before Notary Public Erlinda B. Espejo

of Quezon City, per Doc. No. 168, Page No. 35, Book
No. CLXXIV of her notarial registry, falsely alleging that he
lost Owners Duplicate Certificate of TCT No. N-173163,
which document was used in support of a Petition For
Issuance of New Owners Duplicate Copy of Certificate of
Title and filed with the Regional Trial Court of Quezon City,
docketed as LRC# Q-10052 (98) on January 28, 1998 and
assigned to Branch 99 of the said court, to which said
Francisco M. Mag[e]strado signed and swore on its
verification, per Doc. 413 Page 84 Book No. CLXXV Series
of 1998 of Notary Public Erlinda B. Espejo of Quezon City;
the said accused knowing fully well that the allegations in
the said affidavit and petition are false, the truth of the
matter being that the property subject of Transfer
Certificate of Title No. N-173163 was mortgaged to
complainant Elena M. Librojo as collateral for a loan in the
amount of P 758,134.42 and as a consequence of which
said title to the property was surrendered by him to the
said complainant by virtue of said loan, thus, making
untruthful and deliberate assertions of falsehoods, to the
damage and prejudice of the said Elena M. Librojo. [4]

The case was raffled to the MeTC of Quezon City, Branch

43, where it was docketed as Criminal Case No. 90721
entitled, People of the Philippines v. Francisco Magestrado.

On 30 June 1999, petitioner filed a motion [5] for suspension

of proceedings based on a prejudicial question. Petitioner alleged
that Civil Case No. Q-98-34349, a case for recovery of a sum of
money pending before the Regional Trial Court (RTC) of Quezon
City, Branch 84, and Civil Case No. Q-98- 34308, a case for
Cancellation of Mortgage, Delivery of Title and Damages, pending
before the RTC of Quezon City, Branch 77, must be resolved first

before Criminal Case No. 90721 may proceed since the issues in
the said civil cases are similar or intimately related to the issues
raised in the criminal action.

On 14 July 1999, MeTC-Branch 43 issued an Order [6] denying petitioners

motion for suspension of proceedings, thus:

Acting on the Motion for Suspension of Proceedings filed by the [herein

petitioner Magestrado], thru counsel, and the Comment and Opposition thereto,
the Court after an evaluation of the same, finds the aforesaid motion without
merit, hence, is hereby DENIED, it appearing that the resolution of the issues
raised in the civil actions is not determinative of the guilt or innocence of the
accused.
Hence, the trial of this case shall proceed as previously scheduled on July
19 and August 2, 1993 at 8:30 in the morning.

On 17 August 1999, a motion[7] for reconsideration was filed by petitioner

but was denied by the MeTC in an Order[8] dated 19 October 1999.

Aggrieved, petitioner filed a Petition for Certiorari[9] under Rule 65 of the

Revised Rules of Court, with a prayer for Issuance of a Writ of Preliminary
Injunction before the RTC of Quezon City, Branch 83, docketed as Civil Case No.
Q-99-39358, on the ground that MeTC Judge Billy J. Apalit committed grave
abuse of discretion amounting to lack or excess of jurisdiction in denying his
motion to suspend the proceedings in Criminal Case No. 90721.

On 14 March 2000, RTC-Branch 83 dismissed the petition and denied the

prayer for the issuance of a writ of preliminary injunction, reasoning thus:

Scrutinizing the complaints and answers in the civil cases

abovementioned, in relation to the criminal action for PERJURY, this Court
opines and so holds that there is no prejudicial question involved as to warrant the
suspension of the criminal action to await the outcome of the civil cases. The
civil cases are principally for determination whether or not a loan was obtained by
petitioner and whether or not he executed the deed of real estate mortgage
involving the property covered by TCT No. N-173163, whereas the criminal case
is for perjury which imputes upon petitioner the wrongful execution of an
affidavit of loss to support his petition for issuance of a new owners duplicate
copy of TCT No. 173163. Whether or not he committed perjury is the issue in the
criminal case which may be resolved independently of the civil cases. Note that
the affidavit of loss was executed in support of the petition for issuance of a new
owners duplicate copy of TCT No. N-173163 which petition was raffled to
Branch 99 of the RTC. x x x.[10]

Again, petitioner filed a motion for reconsideration[11] but this was denied by
RTC- Branch 83 in an Order[12] dated 21 December 2000.

Dissatisfied, petitioner filed with the Court of Appeals a Petition

for Certiorari[13] under Rule 65 of the Revised Rules of Court, which was docketed
as CA-G.R. SP No. 63293. Petitioner alleged that RTC Judge Estrella T. Estrada
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
denying the Petition for Certiorari in Civil Case No. Q-99-39358, and in effect
sustaining the denial by MeTC-Branch 43 of petitioners motion to suspend the
proceedings in Criminal Case No. 90721, as well as his subsequent motion for
reconsideration thereof.

On 5 March 2001, the Court of Appeals dismissed[14] the Petition in CA-G.R.

SP No. 63293 on the ground that petitioners remedy should have been an appeal
from the dismissal by RTC-Branch 83 of his Petition for Certiorari in Q-9939358. The Court of Appeals ruled that:

Is this instant Petition for Certiorari under Rule 65 the correct and
appropriate remedy?
We rule negatively.
The resolution or dismissal in special civil actions, as in the instant
petition, may be appealed x x x under Section 10, Rule 44 of the 1997 Rules of
Civil Procedure and not by petition for certiorari under Rule 65 of the same rules.
Thus, the said rule provides:
Section 10. Time for filing memoranda on special cases. In certiorari,
prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall
file in lieu of briefs, their respective memoranda within a non-extendible period of
thirty (30) days from receipt of the notice issued by the clerk that all the evidence,
oral and documentary, is already attached to the record x x x.
WHEREFORE, in consideration of the foregoing premises, the instant
Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure is
hereby DISMISSED.[15]

The Court of Appeals denied petitioners Motion for Reconsideration [16] in a

Resolution[17] dated 3 May 2001.

Hence, petitioner comes before us via a Petition for Review

on Certiorari under Rule 45 of the Revised Rules of Court raising
the following issues:

1.

Whether or not the Orders of Judge Estrella T. Estrada

dated March 14, 2000 denying petitioners Petition
for Certiorari under Rule 65 of the Rules of Court, and
her subsequent Order dated December 21, 2000,

denying the Motion for Reconsideration thereafter filed

can only be reviewed by the Court of Appeals thru
appeal under Section 10, Rule 44 of the 1997 Rules of
Civil Procedure.

2.

Whether or not Judge Estrella T. Estrada of the

Regional Trial Court, Branch 83, Quezon City, had
committed grave abuse of discretion amounting to lack
or in excess of her jurisdiction in denying the Petition
for Certiorari and petitioners subsequent motion for
reconsideration on the ground of a prejudicial question
pursuant to the Rules on Criminal Procedure and the
prevailing jurisprudence.

After consideration of the procedural and substantive issues

raised by petitioner, we find the instant petition to be without
merit.

The procedural issue herein basically hinges on the proper remedy which
petitioner should have availed himself of before the Court of Appeals: an ordinary
appeal or a petition for certiorari. Petitioner claims that he correctly questioned
RTC-Branch 83s Order of dismissal of his Petition for Certiorari in Civil Case
No. Q-99-39358 through a Petition for Certiorari before the Court of Appeals.
Private respondent and public respondent People of the Philippines insist that an
ordinary appeal was the proper remedy.

We agree with respondents. We hold that the appellate court did not err in
dismissing petitioners Petition for Certiorari, pursuant to Rule 41, Section 2 of the

Revised Rules of Court (and not under Rule 44, Section 10, invoked by the Court
of Appeals in its Resolution dated 5 March 2001).

The correct procedural recourse for petitioner was appeal,

not only because RTC-Branch 83 did not commit any grave abuse
of discretion in dismissing petitioners Petition for Certiorari in
Civil Case No. Q-99-39358 but also because RTC-Branch 83s
Order of dismissal was a final order from which petitioners should
have appealed in accordance with Section 2, Rule 41 of the
Revised Rules of Court.

An order or a judgment is deemed final when it finally

disposes of a pending action, so that nothing more can be done
with it in the trial court. In other words, the order or judgment
ends the litigation in the lower court. Au contraire, an
interlocutory order does not dispose of the case completely, but
leaves something to be done as regards the merits of the latter.
[18]
RTC-Branch 83s Order dated 14 March 2001 dismissing
petitioners Petition for Certiorari in Civil Case No. Q-99-39358
finally disposes of the said case and RTC-Branch 83 can do
nothing more with the case.

Under Rule 41 of the Rules of Court, an appeal may be taken

from a judgment or final order that completely disposes of the
case, or of a particular matter therein when declared by the
Revised Rules of Court to be appealable. The manner of
appealing an RTC judgment or final order is also provided in Rule
41 as follows:

Section 2. Modes of appeal.

(a)
Ordinary appeal. The appeal to the Court of
Appeals in cases decided by the Regional Trial Court in
the exercise of its original jurisdiction shall be taken by
filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall
be required except in special proceedings and other cases
of multiple or separate appeals where the law or these
Rules so require. In such cases, the record on appeal
shall be filed and served in like manner.

Certiorari generally lies only when there is no appeal nor any

other plain, speedy or adequate remedy available to
petitioners. Here, appeal was available. It was adequate to deal
with any question whether of fact or of law, whether of error of
jurisdiction or grave abuse of discretion or error of judgment
which the trial court might have committed. But petitioners
instead filed a special civil action for certiorari.

We have time and again reminded members of the bench

and bar that a special civil action for certiorari under Rule 65 of
the Revised Rules of Court lies only when there is no appeal nor
plain, speedy and adequate remedy in the ordinary course of
law.[19] Certiorari cannot be allowed when a party to a case fails
to appeal a judgment despite the availability of that remedy,
[20]
certiorari not being a substitute for lost appeal. [21]

As certiorari is not a substitute for lost appeal, we have

repeatedly emphasized that the perfection of appeals in the

manner and within the period permitted by law is not only

mandatory but jurisdictional, and that the failure to perfect an
appeal renders the decision of the trial court final and
executory. This rule is founded upon the principle that the right to
appeal is not part of due process of law but is a mere statutory
privilege to be exercised only in the manner and in accordance
with the provisions of the law. Neither can petitioner invoke the
doctrine that rules of technicality must yield to the broader
interest of substantial justice. While every litigant must be given
the amplest opportunity for the proper and just determination of
his cause, free from constraints of technicalities, the failure to
perfect an appeal within the reglementary period is not a mere
technicality. It raises a jurisdictional problem as it deprives the
appellate court of jurisdiction over the appeal. [22]

The remedies of appeal and certiorari are mutually exclusive

and not alternative or successive. [23] A party cannot substitute
the special civil action ofcertiorari under Rule 65 of the Rules of
Court for the remedy of appeal. The existence and availability of
the right of appeal are antithetical to the availability of the special
civil action for certiorari.[24] As this Court held in Fajardo v.
Bautista[25]:

Generally, an order of dismissal, whether right or wrong,

is a final order, and hence a proper subject of appeal, not
certiorari. The remedies of appeal and certiorari are
mutually
exclusive
and
not
alternative
or
successive. Accordingly, although the special civil action
of certiorari is not proper when an ordinary appeal is
available, it may be granted where it is shown that the
appeal would be inadequate, slow, insufficient, and will
not promptly relieve a party from the injurious effects of
the order complained of, or where appeal is inadequate

and ineffectual. Nevertheless, certiorari cannot be a

substitute for the lost or lapsed remedy of appeal, where
such loss is occasioned by the petitioners own neglect or
error in the choice of remedies.

On 21 December 2000, petitioner received a copy of the

Order of the RTC-Branch 83 denying his motion for reconsideration
of the dismissal of his Petition forCertiorari in Civil Case No. Q-9939358; hence, he had until 18 January 2001 within which to file an
appeal with the Court of Appeals. The Petition for Certiorarifiled
by petitioner on 19 February 2001 with the Court of Appeals
cannot be a substitute for the lost remedy of appeal. As petitioner
failed to file a timely appeal, RTC-Branch 83s dismissal of his
Petition for Certiorari had long become final and executory.

For this procedural lapse, the Court of Appeals correctly

denied outright the Petition for Certiorari filed by petitioner before
it.

Moreover, there are even more cogent reasons for denying

the instant Petition on the merits.

In the Petition at bar, petitioner raises several substantive issues. Petitioner

harps on the need for the suspension of the proceedings in Criminal Case No.
90721 for perjury pending before MeTC-Branch 43 based on a prejudicial question
still to be resolved in Civil Case No. Q-98-34308 (for cancellation of mortgage)
and Civil Case No. Q-98-34349 (for collection of a sum of money) which are
pending before other trial courts.

For clarity, we shall first discuss the allegations of petitioner

in his complaint in Civil Case No. Q-98-34308 (for cancellation of
mortgage) and that of private respondent in her complaint in Civil
Case No. Q-98-34349 (for collection of a sum of money).

Civil Case No. Q-98-34308 is a complaint for Cancellation of Mortgage,

Delivery of Title and Damages filed on 8 May 1988 by petitioner against private
respondent with RTC-Branch 77. Petitioner alleges that he purchased a parcel of
land covered by Transfer Certificate of Title No. N-173163 thru private respondent,
a real estate broker. In the process of negotiation, petitioner was pressured to sign
a Deed of Sale prepared by private respondent. Upon signing the Deed of Sale, he
noticed that the Deed was already signed by a certain Cristina Gonzales as
attorney-in-fact of vendor Spouses Guillermo and Amparo Galvez. Petitioner
demanded from private respondent a special power of attorney and authority to
sell, but the latter failed to present one. Petitioner averred that private respondent
refused to deliver the certificate of title of the land despite execution and signing of
the Deed of Sale and payment of the consideration. Petitioner was thus compelled
to engage the services of one Modesto Gazmin, Jr. who agreed, for P100,000.00 to
facilitate the filing of cases against private respondent; to deliver to petitioner the
certificate of title of the land; and/or to cancel the certificate of title in possession
of private respondent. However, Mr. Gazmin, Jr., did nothing upon receipt of the
amount ofP100,000.00 from petitioner. In fact, petitioner was even charged with
perjury before the Office of the City Prosecutor, all because of Mr. Gazmin, Jr.s
wrongdoing. Petitioner further alleged that he discovered the existence of a
spurious Real Estate Mortgage which he allegedly signed in favor of private
respondent. Petitioner categorically denied signing the mortgage document and it
was private respondent who falsified the same in order to justify her unlawful
withholding of TCT No. N-173163 from petitioner. Thus, petitioner prayed for:

1. The cancellation of Real Estate Mortgage dated August 2,

1997 as null and void;

2. As well as to order [herein private respondent] to DELIVER

the Owners Duplicate Copy of Transfer Certificate of Title No. N173163 to [herein petitioner];

3. Condemning [private respondent] to pay [petitioner] the sums

of

a) P100,000.00 as MORAL DAMAGES;

b) P50,000.00 as EXEMPLARY DAMAGES;

c) P50,000.00 as Attorneys fees and

d) Cost of suit.

4. A general relief is likewise prayed for (sic) just and equitable

under the premises.

Civil Case No. Q-98-34349,[26] on the other hand, is a complaint for a sum
of money with a motion for issuance of a writ of attachment filed by private
respondent against petitioner on 14 May 1988 before RTC-Branch 84. Private

respondent alleges that petitioner obtained a loan from her in the amount
of P758,134.42 with a promise to pay on or before 30 August 1997. As security
for payment of the loan, petitioner executed a Deed of Real Estate Mortgage
covering a parcel of land registered under TCT No. N-173163. Petitioner pleaded
for additional time to pay the said obligation, to which respondent agreed. But
private respondent discovered sometime in February 1998 that petitioner executed
an affidavit of loss alleging that he lost the owners duplicate copy of TCT No. N173163, and succeeded in annotating said affidavit on the original copy of TCT
No. N-173163 on file with the Registry of Deeds of Quezon City. Private
respondent further alleges that she also discovered that petitioner filed a petition
for issuance of a new owners duplicate copy of TCT No. N-173163 with the RTC
of Quezon City, Branch 98, docketed as LRC Case No. Q-10052. Private
respondent demanded that petitioner pay his obligation, but the latter refused to do
so. Resultantly, private respondent prayed for the following:

A.

That upon filing of this Complaint as well as the

Affidavit of attachment and a preliminary hearing
thereon, as well as bond filed, a writ of preliminary
attachment is (sic) by the Honorable Court ordering
the Sheriff to levy [herein petitioner] property
sufficient to answer [herein private respondents]
claim in this action;

B.

That after due notice and hearing, judgment be

rendered in [private respondents] favor as against
[petitioner], ordering the latter to pay the former the
sum of P758,134.42 plus interest thereon at 5% per
month from September 1997 up to the date of
actual payment; actual damages in the sums
of P70,000.00 each under paragraphs 11 and 12 of
the
complaint; P200,000.00
as
moral
damages; P100,000.00 as exemplary damages;
twenty (20%) of the principal claim as attorneys

fees plus P2,500.00 per appearance honorarium;

and P60,000.00 as litigation expense before this
Honorable Court.

[Petitioner] prays for such further relief in law,

justice and equity.

As to whether it is proper to suspend Criminal Case No.

90721 for perjury pending final outcome of Civil Case No. Q-9834349 and Civil Case No. Q-98-34308, we take into
consideration Sections 6 and 7, Rule 111 of the Revised Rules of
Court, which read:

Sec. 6. Suspension by reason of prejudicial

question. A petition for suspension of the criminal action
based upon the pendency of a prejudicial question in a
civil action may be filed in the office of the prosecutor or
the court conducting the preliminary investigation. When
the criminal action has been filed in court for trial, the
petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests.

Sec. 7. Elements of prejudicial question. The

elements of a prejudicial question are: (a) the previously
instituted civil action involves an issue similar or
intimately related to the issue raised in the subsequent
criminal action; and (b) the resolution of such issue
determines whether or not the criminal action may
proceed.

The rationale behind the principle of suspending a criminal

case in view of a prejudicial question is to avoid two conflicting
decisions.[27]

A prejudial question is defined as that which arises in a case

the resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to another
tribunal. The prejudicial question must be determinative of the
case before the court but the jurisdiction to try and resolve
the question must be lodged in another court or tribunal. It is
a question based on a fact distinct and separate from the crime
but so intimately connected with it that it determines the guilt or
innocence of the accused.[28]

For a prejudicial question in a civil case to suspend criminal

action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution
would be based but also that in the resolution of the issue or
issues raised in the civil case, the guilt or innocence of the
accused would necessarily be determined.

Thus, for a civil action to be considered prejudicial to a

criminal case as to cause the suspension of the criminal
proceedings until the final resolution of the civil case, the
following requisites must be present: (1) the civil case involves
facts intimately related to those upon which the criminal
prosecution would be based; (2) in the resolution of the issue or
issues raised in the civil action, the guilt or innocence of the

accused would necessarily be determined; and (3) jurisdiction to

try saidquestion must be lodged in another tribunal. [29]

If the resolution of the issue in the civil action will not

determine the criminal responsibility of the accused in the
criminal action based on the same facts, or there is no necessity
that the civil case be determined first before taking up the
criminal case, therefore, the civil case does not involve
a prejudicial question.[30] Neither is there a prejudicial question if
the civil and the criminal action can, according to law, proceed
independently of each other.[31]

However, the court in which an action is pending may, in the exercise of

sound discretion, and upon proper application for a stay of that action, hold the
action in abeyance to abide by the outcome of another case pending in another
court, especially where the parties and the issues are the same, for there is power
inherent in every court to control the disposition of cases on its dockets with
economy of time and effort for itself, for counsel, and for litigants. Where the
rights of parties to the second action cannot be properly determined until the
questions raised in the first action are settled, the second action should be stayed.[32]

The power to stay proceedings is incidental to the power inherent in every

court to control the disposition of the cases on its dockets, considering its time and
effort, those of counsel and the litigants. But if proceedings must be stayed, it must
be done in order to avoid multiplicity of suits and prevent vexatious litigations,
conflicting judgments, confusion between litigants and courts. It bears stressing
that whether or not the trial court would suspend the proceedings in the criminal
case before it is submitted to its sound discretion.[33]

Indeed, a judicial order issued pursuant to the courts discretionary authority

is not subject to reversal on review unless it constitutes an abuse of discretion. As
the United States Supreme Court aptly declared in Landis v. North American Co.,
the burden of making out the justice and wisdom from the departure from the
beaten truck lay heavily on the petitioner, less an unwilling litigant is compelled to
wait upon the outcome of a controversy to which he is a stranger. It is, thus, stated
that only in rare circumstances will a litigant in one case is compelled to stand
aside, while a litigant in another, settling the rule of law that will define the rights
of both is, after all, the parties before the court are entitled to a just, speedy and
plain determination of their case undetermined by the pendency of the proceedings
in another case. After all, procedure was created not to hinder and delay but to
facilitate and promote the administration of justice.[34]

As stated, the determination of whether the proceedings may be suspended

on the basis of a prejudicial question rests on whether the facts and issues raised in
the pleadings in the civil cases are so related with the issues raised in the criminal
case such that the resolution of the issues in the civil cases would also determine
the judgment in the criminal case.

A perusal of the allegations in the complaints show that Civil Case No. Q98-34308 pending before RTC-Branch 77, and Civil Case No. Q-98-34349,
pending before RTC-Branch 84, are principally for the determination of whether a
loan was obtained by petitioner from private respondent and whether petitioner
executed a real estate mortgage involving the property covered by TCT No. N173163. On the other hand, Criminal Case No. 90721 before MeTC-Branch 43,
involves the determination of whether petitioner committed perjury in executing an
affidavit of loss to support his request for issuance of a new owners duplicate copy
of TCT No. N-173163.

It is evident that the civil cases and the criminal case can proceed
independently of each other. Regardless of the outcome of the two civil cases, it

will not establish the innocence or guilt of the petitioner in the criminal case for
perjury. The purchase by petitioner of the land or his execution of a real estate
mortgage will have no bearing whatsoever on whether petitioner knowingly and
fraudulently executed a false affidavit of loss of TCT No. N-173163.

MeTC-Branch 43, therefore, did not err in ruling that the

pendency of Civil Case No. Q-98-34308 for cancellation of
mortgage before the RTC-Branch 77; and Civil Case No. Q-9834349 for collection of a sum of money before RTC-Branch 84, do
not pose a prejudicial question in the determination of whether
petitioner is guilty of perjury in Criminal Case No. 90721. RTCBranch 83, likewise, did not err in ruling that MeTC-Branch 43 did
not commit grave abuse of discretion in denying petitioners
motion for suspension of proceedings in Criminal Case No. 90721.

WHEREFORE, premises considered, the assailed Resolutions

dated 5 March 2001 and 3 May 2001of the Court of Appeals in
CA-G.R. SP No. 63293 are hereby AFFIRMED and the instant
petition is DISMISSED for lack of merit. Accordingly, the
Metropolitan Trial Court of Quezon City, Branch 43, is hereby
directed to proceed with the hearing and trial on the merits of
Criminal Case No. 90721, and to expedite proceedings therein,
without prejudice to the right of the accused to due
process. Costs against petitioner.

SO ORDERED
12. Land Bank of the Philippines vs. Ramon P. Jacinto GR. No. 154622, August 3, 2010

LAND BANK OF THE

PHILIPPINES,

G.R. No. 154622

Petitioner,

Present:

- versus -

CARPIO MORALES, J.,

Chairperson,
BERSAMIN,

RAMON P. JACINTO,
Respondent.

ABAD,
VILLARAMA, JR., and
MENDOZA, JJ.

Promulgated:
August 3, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.:
Petitioner Land Bank of the Philippines (Land Bank) seeks the
reversal of the Decision[1] dated November 28, 2001 and the

Resolution[2] dated August 6, 2002 of the Court of Appeals (CA) in

CA-G.R. SP No. 62773. The CA had set aside the Resolutions dated
October 25, 2000[3] and December 18, 2000[4] of the Department
of Justice (DOJ) and reinstated the Resolution[5] dated March 3,
1999 of the City Prosecution Office of Makati which dismissed the
petitioners complaint against respondent Ramon P. Jacinto in I.S.
Nos. 99-A-1536-44 for violation of Batas Pambansa Blg. (B.P.) 22 or
The Bouncing Checks Law.
The undisputed facts, as gleaned from the records, are as
follows:
The First Womens Credit Corporation (FWCC) obtained a loan
from the petitioner Land Bank in the aggregate amount of P400
million, evidenced by a Credit Line Agreement[6] dated August 22,
1997. As security for the loan, respondent Ramon P. Jacinto,
President of FWCC, issued in favor of Land Bank nine (9) postdated
checks amounting to P465 million and drawn against FWCCs
account at the Philippine National Bank. Later, before the checks
matured, petitioner and respondent executed several letter
agreements which culminated in the execution of a Restructuring
Agreement on June 3, 1998. Under the new agreement, the loan
obligation contracted under the Credit Line Agreement of August
22, 1997 was restructured, its terms of payment, among others,
having been changed or modified. When FWCC defaulted in the
payment of the loan obligation under the terms of their
restructured agreement, petitioner presented for payment to the
drawee bank the postdated checks as they matured. However, all
the checks were dishonored or refused payment for the reason
Payment
Stopped or
Drawn
Against
Insufficient
Funds. Respondent also failed to make good the checks despite
demands.
Hence, on January 13, 1999, Land Bank, through its Assistant
Vice President, Udela C. Salvo, Financial Institutions Department,
filed before the Makati City Prosecutors Office a Complaint-

Affidavit[7] against respondent for violation of B.P. 22. Respondent

filed his Counter-Affidavit[8] denying the charges and averring that
the complaint is baseless and utterly devoid of merit as the said
loan obligation has been extinguished by payment and novation by
virtue
of
the
execution
of
the
Restructuring
Agreement. Respondent also invoked the proscription in the May
28, 1998 Order of the Regional Trial Court (RTC) of Makati City,
Branch 133 in Special Proceedings No. M-4686 for Involuntary
Insolvency which forbade FWCC from paying any of its debts.
In a Resolution[9] dated March 3, 1999, Prosecutor George V.
De Joya dismissed the complaint against respondent, finding that
the letter-agreements between Land Bank and FWCC restructured
and novated the original loan agreement. It was held that there
being novation, the checks issued pursuant to the original loan
obligation had lost their efficacy and validity and cannot be a valid
basis to sustain the charge of violation of B.P. 22.
On June 21, 1999, petitioners motion for reconsideration
was likewise denied.[10]
Aggrieved, petitioner elevated the matter to the DOJ for
review. On
April
10,
2000,
the
DOJ
issued
a
Resolution[11] dismissing the appeal. However, upon motion for
reconsideration filed by petitioner, the DOJ reversed its ruling and
issued a Resolution dated October 25, 2000 holding that novation
is not a mode of extinguishing criminal liability. Thus, the DOJ
held that:
WHEREFORE, there being probable cause to hold
respondent triable for the offense of violation of BP 22
(nine (9) counts), the Department Resolution dated April
10, 2000 is hereby reconsidered and set aside and the
resolution of the Office of the City Prosecutor, Makati City,
dismissing the complaint should be, as it is, hereby
REVERSED. Said office is directed to file the appropriate

informations for violation of BP 22 (nine (9) counts)

against respondent. Report the action taken within ten
(10) days from receipt hereof.
SO ORDERED.[12]

Respondent moved for a reconsideration of the above Order

but it was denied in a Resolution dated December 18, 2000.
Undaunted, respondent filed a petition for certiorari before the
CA.
On November 28, 2001, the CA, in the assailed Decision,
reversed the Resolution of the DOJ and reinstated the Resolution of
Prosecutor De Joya dismissing the complaint. While the CA ruled
that novation is not a mode of extinguishing criminal liability, it
nevertheless held that novation may prevent criminal liability from
arising in certain cases if novation occurs before the criminal
information is filed in court because the novation causes doubt as
to the true nature of the obligation. Also, the CA found merit in
respondents assertion that a prejudicial question exists in the
instant case because the issue of whether the original obligation of
FWCC subject of the dishonored checks has been novated by the
subsequent agreements entered into by FWCC with Land Bank, is
already the subject of the appeal in Civil Case No. 98-2337
(entitled, First Womens Credit Corporation v. Land Bank of the
Philippines for Declaration of Novation) pending before the
CA. The CA also gave consideration to respondents assertion that
the Order dated May 28, 1998 of the RTC proscribing FWCC from
paying its debts constitutes as a justifying circumstance which
prevents criminal liability from attaching.

Petitioners motion for reconsideration from the said decision

having been denied, petitioner filed the instant petition for review
on certiorari, raising the following assignment of errors:

I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED
THAT THE ELEMENT OF A PREJUDICIAL QUESTION EXISTS
IN THE INSTANT CASE AND THAT THE RECOMMENDATION
FOR THE FILING OF INFORMATIONS IN COURT AGAINST
THE RESPONDENT WAS MADE WITH GRAVE ABUSE OF
DISCRETION.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED
THAT THE ORDER DATED MAY 28, 1998 OF THE REGIONAL
TRIAL COURT OF MAKATI, BRANCH 133, CONSTITUTES AS
A JUSTIFYING CIRCUMSTANCE THAT PREVENTS CRIMINAL
LIABILITY FROM ATTACHING.
III
THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED
TO TAKE JUDICIAL NOTICE OF THE PROVISIONS OF THE
LANDBANK CHARTER RELATIVE TO THE COLLECTION OF
ITS FINANCIAL EXPOSURES.[13]

Essentially, the issue to be resolved in this case is whether

the CA erred in reversing the Resolution of the DOJ finding
probable cause to hold respondent liable for violation of B.P. 22.
Petitioner asserts that the June 3, 1998 Restructuring
Agreement did not release FWCC from its obligation with Land
Bank.[14] It merely accommodated FWCCs sister company, RJ
Ventures and Development Corporation.[15] Whether there was
novation or not is also not determinative of respondents
responsibility for violation of B.P. 22, as the said special law
punishes the act of issuing a worthless check and not the purpose
for which the check was issued or the terms and conditions
relating to its issuance. In ruling that the Order dated May 28,
1998 of the RTC in Special Proceedings No. M-4686 constituted a

justifying circumstance, the CA failed to take judicial notice of

Section 86-B (4)[16] of Republic Act No. 7907 which excludes the
proceeds of the checks from the property of the insolvent FWCC.
Respondent counters that there was novation which occurred
prior to the institution of the criminal complaint against him and
that if proven, it would affect his criminal liability. [17] Respondent
averred that if the CA would judicially confirm the existence of
novation in the appeal of Civil Case No. 98-2337 before it, then it
would follow that the value represented by the subject checks has
been extinguished. Respondent argues that the consideration or
value of the subject checks have been modified or novated with
the execution of the Restructuring Agreement. The payment of
the obligation supposedly already depended on the terms and
conditions of the Restructuring Agreement and no longer on the
respective maturity dates of the subject checks as the value or
consideration of the subject checks had been rendered inexistent
by the subsequent execution of the Restructuring Agreement. He
maintains that the subject checks can no longer be the basis of
criminal liability since the obligation for which they were issued
had already been novated or abrogated.
We grant the petition.
A prejudicial question generally exists in a situation where a
civil action and a criminal action are both pending, and there
exists in the former an issue that must be preemptively resolved
before the latter may proceed, because howsoever the issue
raised in the civil action is resolved would be determinative juris
et de jure of the guilt or innocence of the accused in the criminal
case.[18] The elements of a prejudicial question are provided
under Section 7, Rule 111 of the Revised Rules of Criminal
Procedure, as amended, as follows: (i) the previously instituted
civil action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action, and (ii) the

resolution of such issue determines whether or not the criminal

action may proceed.[19]
A prejudicial question is understood in law as that which must
precede the criminal action and which requires a decision before a
final judgment can be rendered in the criminal action with which
said question is closely connected.[20] Not every defense raised in a
civil action will raise a prejudicial question to justify suspension of
the criminal action. The defense must involve an issue similar or
intimately related to the same issue raised in the criminal case and
its resolution should determine whether or not the latter action may
proceed. If the resolution of the issue in the civil action will not
determine the criminal responsibility of the accused in the criminal
action based on the same facts, or if there is no necessity that the
civil case be determined first before taking up the criminal case, the
civil case does not involve a prejudicial question.[21] Neither is there
a prejudicial question if the civil and the criminal action can,
according to law, proceed independently of each other. [22]
In the instant case, we find that the question whether there
was novation of the Credit Line Agreement or not is not
determinative of whether respondent should be prosecuted for
violation of the Bouncing Checks Law.
Respondents contention that if it be proven that the loan of
FWCC had been novated and restructured then his liability under
the dishonored checks would be extinguished, fails to persuade us.
There was no express stipulation in the Restructuring Agreement
that respondent is released from his liability on the issued checks
and in fact the letter-agreements between FWCC and Land Bank
expressly provide that respondents JSS (Joint and Several
Signatures) continue to secure the loan obligation and the
postdated checks issued continue to guaranty the obligation. In
fact, as aptly pointed out by petitioner, out of the nine (9) checks
in question, eight (8) checks were dated June 8 to October 30,
1998 or after the execution of the June 3, 1998 Restructuring

Agreement. If indeed respondents liability on the checks had been

extinguished upon the execution of the Restructuring Agreement,
then respondent should have demanded the return of the checks.
[23]
However, there was no proof that he had been released from
his obligation. On the contrary, the Restructuring Agreement
contains a proviso which states that This Agreement shall not
novate or extinguish all previous security, mortgage, and other
collateral agreements, promissory notes, solidary undertaking
previously executed by and between the parties and shall continue
in full force and effect modified only by the provisions of this
Agreement.[24]
Moreover, it is well settled that the mere act of issuing a
worthless check, even if merely as an accommodation, is covered
by B.P. 22.[25] Thus, this Court has held that the agreement
surrounding the issuance of dishonored checks is irrelevant to the
prosecution for violation of B.P. 22.[26] The gravamen of the
offense punished by B.P. 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its
presentment for payment.[27] Section 1 of B.P. 22 enumerates the
following elements: (1) the making, drawing, and issuance of any
check to apply on account or for value; (2) the knowledge of the
maker, drawer, or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment
of the check in full upon its presentment; and (3) the subsequent
dishonor of the check by the drawee bank for insufficiency of funds
or credit or dishonor for the same reason had not the drawer,
without any valid cause, ordered the bank to stop payment. Thus,
even if it be subsequently declared that novation took place
between the FWCC and petitioner, respondent is not exempt from
prosecution for violation of B.P. 22 for the dishonored checks.
As to the issue of whether the Order dated May 28, 1998 of
the RTC of Makati City in Special Proceedings No. M-4686 for
Involuntary Insolvency constitutes as a justifying circumstance that
prevents criminal liability from attaching, we rule in the

negative. As stated at the outset, the said order forbids FWCC

from paying its debts as well as from delivering any property
belonging to it to any person for its benefit. Respondent, however,
cannot invoke this Order which was directed only upon FWCC and
is not applicable to him. Therefore, respondent, as surety of the
loan is not exempt from complying with his obligation for the
issuance of the checks.
WHEREFORE, the petition for review on certiorari
is GRANTED. The November 28, 2001 Decision and August 6,
2002 Resolution of the Court of Appeals in CA-G.R. SP No. 62773
are hereby REVERSED and SET ASIDE. The Resolution dated
October 25, 2000 of the Department of Justice directing the filing
of appropriate Informations for violation of B.P. 22 against
respondent Ramon P. Jacinto is hereby REINSTATED and
UPHELD.
No costs.
SO ORDERED.
13. Ledesma vs.CA 278 CSRA 656

[G.R. No. 113216. September 5, 1997]

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and

HON. MAXIMIANO C. ASUNCION, in his capacity as Presiding
Judge of RTC, Quezon City, respondents.
DECISION
PANGANIBAN, J.:

When confronted with a motion to withdraw an information on the ground

of lack of probable cause based on a resolution of the secretary of justice, the
bounden duty of the trial court is to make an independent assessment of the

merits of such motion. Having acquired jurisdiction over the case, the trial
court is not bound by such resolution but is required to evaluate it before
proceeding further with the trial. While the secretarys ruling is persuasive, it
is not binding on courts. A trial court, however, commits reversible error or
even grave abuse of discretion if it refuses/neglects to evaluate such
recommendation and simply insists on proceeding with the trial on the mere
pretext of having already acquired jurisdiction over the criminal action.
This principle is explained in this Decision resolving a petition for review
on certiorari of the Decision of the Court of Appeals, promulgated on
September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an
order of the Regional Trial Court of Quezon City denying the prosecutions
withdrawal of a criminal information against petitioner.
[1]

[2]

The Antecedent Facts

From the pleadings submitted in this case, the undisputed facts are as
follows:
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr.
against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City
Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counteraffidavit to the complaint.
Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed
on July 6, 1992 an Information for libel against petitioner with the Regional Trial
Court of Quezon City, Branch 104. The Information filed by Assistant City
Prosecutor Augustine A. Vestil reads:
[3]

[4]

That on or about the 27th day of June 1991, in Quezon City, Metro Manila,
Philippines, the said accused, acting with malice, did, then and there, wilfully,
unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director
of Philippine Heart Center, East Avenue, this city, and furnished the same to other
officers of the said hospital, said letter containing slanderous and defamatory remarks
against DR. JUAN F. TORRES, JR., which states in part, to wit:
27June 1991

Dr. Esperanza I. Cabral

Director
Subject:
Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear
Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to
January 31, 1991.
Respondents:

Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section

Dr. Orestes P. Monzon,

Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a consultant in Nuclear
Medicine, this Center, since January 31, 1989 until my resignation effective January
31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the
Nuclear Medicine Section will show that from January 1989 to January 1991, a total
of 2,308 patients were seen. Of these, I had officially supervised, processed, and
interpreted approximately a total of 1,551 cases as against approximately 684 and 73
cases done by Dr. Monzon and Dr. Torres respectively.
Until my resignation I had received a monthly share of professional fees averaging
P1,116.90/month supposedly representing 20% of the total monthly professional
fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was
never any agreement between us three consultants that this should be the arrangement
and I am certain that this was not with your approval. The burden of unfairness would
have been lesser if there was an equal distribution of labor and the schedule of duties
were strictly followed. As it was, the schedule of duties submitted monthly to the
office of the Asst. Director for Medical Services was simply a dummy to comply with
administrative requirements rather than a guideline for strict compliance. Both
consultants have complete daily time records even if they did not come regularly. Dr.
Torres came for an hour every week, Dr. Monzon came sporadically during the week
while I was left with everything from training the residents and supervising the Techs
to processing and interpreting the results on a regular basis. I had a part time
appointment just like Dr. Monzon and Dr. Torres.

In the interest of fairness and to set a precedent for the protection of future PHC
Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman
conditions I went through as a Consultant in that Section. I trust that your sense of
professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the distribution of
professional fees in this Section. At this point, let me stress that since professional
fees vary according to the type of procedure done and since there was no equity of
labor between us I am not settling for an equal percentage share. I demand that I be
indemnified of all professional fees due me on a case to case basis.
Let me make clear my intention of pursuing this matter legally should there be no
favorable action in my behalf. Let me state at this point6 that the actions of Dr. Torres
and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the
code of ethics of the medical profession and the Philippine Civil Service Rules and
Regulations related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused very well
knew, the same are entirely false and untrue but were publicly made for no other
purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby
casting dishonor, discredit and contempt upon the person of the said offended party, to
his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil
was filed by petitioner before the Department of Justice pursuant to P.D. No.
77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed
the Quezon City prosecutor to move for deferment of further proceedings and
to elevate the entire records of the case. Accordingly, a Motion to Defer
Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M.
Gavero before the court a quo. On September 9, 1992, the trial court granted
the motion and deferred petitioners arraignment until the final termination of
the petition for review.
[5]

[6]

[7]

Without the consent or approval of the trial prosecutor, private

complainant, through counsel, filed a Motion to Lift the Order dated
September 9, 1992 and to Set the Case for Arraignment/Trial.
[8]

On January 8, 1993, the trial court issued an Order setting aside its earlier
Order of September 9, 1992 and scheduling petitioners arraignment on
January 18, 1993 at two oclock in the afternoon.
[9]

In a resolution dated January 27, 1993, then Justice Secretary Franklin M.

Drilon reversed the Quezon City investigating prosecutor. Pertinent portions
of Drilons ruling read:
[10]

From the circumstances obtaining, the subject letter was written to bring to the
attention of the Director of the Philippine Heart Center for Asia and other responsible
authorities the unjust and unfair treatment that Dr. Ledesma was getting from
complainants. Since complainants and respondent are government employees, and the
subject letter is a complaint to higher authorities of the PHCA on a subject matter in
which respondent has an interest and in reference to which she has a duty to question
the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs.
Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922,
ruled that A communication made in good faith upon any subject matter in which the
party making the communication has an interest or concerning which he has a duty is
privileged... although it contains incriminatory or derogatory matter which, without
the privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a direct
evidence of respondents righteous disposition of following the rule of law and is a
clear indication that her purpose was to seek relief from the proper higher authority
who is the Director of PHCA.
The same interpretation should be accorded the civil and administrative complaints
which respondent filed against complainants. They are mere manifestations of her
earnest desire to pursue proper relief for the alleged injustice she got from
complainants. If she was motivated by malice and ill-will in sending the subject
communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.

Moreover, it is unbelievable that it took complainants one year to realize that the
questioned letter subjected them to public and malicious imputation of a vice or
omission. It is beyond the ordinary course of human conduct for complainants to start
feeling the effects of the alleged libelous letter - that of experiencing sleepless nights,
wounded feelings, serious anxiety, moral shock and besmirched reputation - one year
after they read the communication in question.
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the
instant case is unfounded. In the first place, the instant cases are not being
reinvestigated. It is the resolutions of the investigating prosecutor that are under
review. Further, the record shows that the court has issued an order suspending the
proceedings pending the resolutions of the petitions for review by this Office. In the
issuance of its order, the court recognizes that the Secretary of Justice has the
power and authority to review the resolutions of prosecutors who are under his control
and supervision.
In view of the foregoing, the appealed resolutions are hereby reversed. You are
directed to withdraw the Informations which you filed in Court. Inform this Office of
the action taken within ten (10) days from receipt hereof.
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M.
Gavero filed a Motion to Withdraw Information dated February 17,1993,
attaching thereto the resolution of Secretary Drilon. The trial judge denied
this motion in his Order dated February 22, 1993, as follows:
[11]

[12]

The motion of the trial prosecutor to withdraw the information in the above-entitled
case is denied. Instead, the trial prosecutor of this court is hereby directed to
prosecute the case following the guidelines and doctrine laid down by the Supreme
Court in the case of Crespo vs. Mogul, 151 SCRA 462.
Petitioners motion for reconsideration was denied by the trial judge in the
Order dated March 5, 1993, as follows:
[13]

[14]

Finding no cogent reason to justify the reconsideration of the ruling of this Court
dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993 filed
by the accused through counsel is hereby denied.

Aggrieved, petitioner filed a petition for certiorari and prohibition with the
Supreme Court. In a Resolution dated March 31, 1993, this Court referred the
case to the Court of Appeals for proper determination and disposition pursuant
to Section 9, paragraph 1 of B.P. 129.
[15]

Respondent Court dismissed the petition for lack of merit, holding that it
had no jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul
-- once a complaint or information has been filed in court, any disposition of
the case, i.e., dismissal, conviction or acquittal of the accused, rests on the
sound discretion of the trial court.
[16]

Hence, this recourse to this Court.

The Issues
For unexplained reasons, petitioner failed to make an assignment of errors
against the appellate court. Her counsel merely repeated the alleged errors of
the trial court:
[17]

I.
The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge
Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is
respectfully submitted that said case is not applicable because:
1.
It infringes on the constitutional separation of powers between the executive
and judicial branches of the government;
2.
It constitutes or it may lead to misuse or misapplication of judicial power
as defined in the Constitution;
3.
It goes against the constitutional proscription that rules of procedure should
not diminish substantive rights;
4.

It goes against the principle of non-delegation of powers;

5.

It sets aside or disregards substantive and procedural rules;

6.

It deprives a person of his constitutional right to procedural due process;

7.

Its application may constitute or lead to denial of equal protection of laws;

8.
It deprives the secretary of justice or the president of the power to control or
review the acts of a subordinate official;
9.
It will lead to, encourage, abet or promote abuse or even corruption among
the ranks of investigating fiscals;
10.

It does not subserve the purposes of a preliminary investigation because -

(10.a)
It subjects a person to the burdens of an unnecessary trial, specially in
cases where the investigating fiscal recommends no bail for the accused;
(10.b)
It subjects the government, both the executive and the judiciary, to
unnecessary time and expenses attendant to an unnecessary trial;
(10.c)
11.
II.

It contributes to the clogging of judicial dockets; and

It has no statutory or procedural basis or precedent.
On the assumption that Crespo vs. Mogul is applicable, it is submitted that -

1.
Respondent Judge Asuncion committed grave abuse of discretion,
amounting to lack of jurisdiction, when he denied the Motion to Withdraw
Information since he had already deferred to, if not recognized, the authority of the
Secretary of Justice; and
2.
The facts in Crespo vs. Mogul are different from the instant case. Hence,
respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of
jurisdiction, when he relied solely on said case in denying the Motion to Withdraw
Information.
In sum, the main issue in this petition is: Did Respondent Court commit
any reversible error in affirming the trial courts denial of the prosecutions
Motion to Withdraw Information?
The Courts Ruling
The petition is impressed with merit. We answer the above question in the
affirmative.

Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily
address a procedural matter. Prior to the effectivity of the 1997 Rules of Civil
Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals
from the Court of Appeals to the Supreme Court, provided:
SEC. 2.
Contents of petition.The petition shall contain a concise statement of
x x x the assignment of errors made in the court below x x x.
A petition for review on certiorari under Rule 45 requires a concise
statement of the errors committed by the Court of Appeals, not of the trial
court. For failure to follow this Rule, the petition could have been dismissed
by this Court motu proprio, considering that under Section 4 of the same Rule,
review is not a matter of right but of sound discretion.
We take this occasion to stress the need for precision and clarity in the
assignment of errors. Review under this rule is unlike an appeal in a criminal
case where the death penalty, reclusin perpetua or life imprisonment is
imposed and where the whole case is opened for review. Under Rule 45, only
the issues raised therein by the petitioner will be passed upon by the Court,
such that an erroneous specification of the issues may cause the dismissal of
the petition. We stressed this in Circular No. 2-90, entitled Guidelines to be
Observed in Appeals to the Court of Appeals and to the Supreme Court, as
follows:
4.

Erroneous Appeals. x x x x

e)
Duty of counsel.It is therefore incumbent upon every attorney who would
seek review of a judgment or order promulgated against his client to make sure of the
nature of the errors he proposes to assign, whether these be of fact or of law; then
upon such basis to ascertain carefully which Court has appellate jurisdiction; and
finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware
that any error or imprecision in compliance may well be fatal to his clients cause.
FOR STRICT COMPLIANCE.

Be that as it may, the Court noting the importance of the substantial

matters raised decided to overlook petitioners lapse and granted due
course to the petition per Resolution dated July 15, 1996, with a warning that
henceforth petitions which fail to specify an assignment of errors of the proper
lower court may be denied due course motu proprio by this Court.
Determination of Probable Cause Is an Executive Function
The determination of probable cause during a preliminary investigation is
judicially recognized as an executive function and is made by the
prosecutor. The primary objective of a preliminary investigation is to free a
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 has been passed upon in a more or less
summary proceeding by a competent officer designated by law for that
purpose. Secondarily, such summary proceeding also protects the state from
the burden of unnecessary expense and effort in prosecuting alleged offenses
and in holding trials arising from false, frivolous or groundless charges.
[18]

Such investigation is not a 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 that 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 pronouncement of acquittal. Hence, no double
jeopardy attaches.
[19]

In declaring this function to be lodged in the prosecutor, the Court

distinguished the determination of probable cause for the issuance of a
warrant of arrest or a search warrant from a preliminary investigation proper in
this wise:
[20]

xxx Judges and prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from a preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. xxx The determination of probable cause for the warrant of arrest is made
by the Judge. The preliminary investigation proper--whether xxx there is reasonable

ground to believe that the accused is guilty of the offense charged and, therefore,
whether xxx he should be subjected to the expense, rigors and embarrassment of
trial--is the function of the prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecutors job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge.
Sound policy supports this distinction. 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. The Separate Opinion of Mr. Chief Justice Andres R.
Narvasa in Roberts, Jr. vs. Court of Appealsstressed that the determination of
the existence of probable cause properly pertains to the public prosecutor in
the established scheme of things, and that the proceedings therein are
essentially preliminary, prefatory and cannot lead to a final, definite and
authoritative judgment of the guilt or innocence of the persons charged with a
felony or a crime.
[21]

In Crespo vs. Mogul, the Court emphasized the cardinal principle

that the public prosecutor controls and directs the prosecution of criminal
offenses thus:
[22]

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 prosecution by private persons. It cannot be
controlled by the complainant. Prosecuting officers under the power vested in them
by 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 legal
duty not to prosecute when after an investigation they become convinced that the
evidence adduced is not sufficient to establish a prima facie case.
In the same case, the Court added that where there is a clash of views
between a judge who did not investigate and a fiscal who conducted a
reinvestigation, those of the prosecutor should normally prevail:
[23]

x x x x The Courts cannot interfere with the fiscals discretion and control of the
criminal prosecution. It is not prudent or even permissible for a Court to compel the
fiscal to prosecute a proceeding originally initiated by him on an information, if he
finds that the evidence relied upon by him is insufficient for conviction. Neither has
the Court any power to order the fiscal to prosecute or file an information within a
certain period of time, since this would interfere with the fiscals discretion and
control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case
for insufficiency of evidence has authority to do so, and Courts that grant the same
commit no error. The fiscal may re-investigate a case and subsequently move for the
dismissal should the re-investigation show either that the defendant is innocent or that
his guilt may not be established beyond reasonable doubt. In a clash of views
between the judge who did not investigate and the fiscal who did, or between the
fiscal and the offended party or the defendant, those of the fiscals should normally
prevail. x x x x.
Appeal as an Exercise of the Justice Secretarys Power of Control Over
Prosecutors
Decisions or resolutions of prosecutors are subject to appeal to the
secretary of justice who, under the Revised Administrative Code, exercises
the power of direct control and supervision over said prosecutors; and who
may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter
2, Title III of the Code gives the secretary of justice supervision and control
over the Office of the Chief Prosecutor and the Provincial and City
Prosecution Offices. The scope of his power of supervision and control is
delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:

(1) Supervision and Control. Supervision and control shall include authority to
act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units; xxxx.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and
Section 37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be
assigned to them by the Secretary of Justice in the interest of public service.
xxx

xxx
xxx

Section 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to a chief
of bureau, office, division or service, the same shall be understood as also conferred
upon the proper Department Head who shall have authority to act directly in
pursuance thereof, or to review, modify, or revoke any decision or action of said chief
of bureau, office, division or service.
Supervision and control of a department head over his subordinates
have been defined in administrative law as follows:
[24]

In administrative law supervision means overseeing or the power or authority of an

officer to see that subordinate officers perform their duties. If the latter fail or neglect
to fulfill them, the former may take such action or step as prescribed by law to make
them perform such duties. Control, on the other hand, means the power of an officer
to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the
latter.
Review as an act of supervision and control by the justice secretary over
the fiscals and prosecutors finds basis in the doctrine of exhaustion of
administrative remedies which holds that mistakes, abuses or negligence

committed in the initial steps of an administrative activity or by an

administrative agency should be corrected by higher administrative
authorities, and not directly by courts. As a rule, only after administrative
remedies are exhausted may judicial recourse be allowed.
Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling
in Crespo
In Marcelo vs. Court of Appeals, the Court clarified that Crespo did not
foreclose the power or authority of the secretary of justice to review
resolutions of his subordinates in criminal cases. The Court recognized
in Crespo that the action of the investigating fiscal or prosecutor in the
preliminary investigation is subject to the approval of the provincial or city
fiscal or chief state prosecutor. Thereafter, it may be appealed to the
secretary of justice.
[25]

[26]

The justice secretarys power of review may still be availed of despite the
filing of an information in court. In his discretion, the secretary may affirm,
modify or reverse resolutions of his subordinates pursuant to Republic Act No.
5180, as amended, specifically in Section 1 (d):
[27]

(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal
or the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice, the
latter may, where he finds that no prima facie case exists, authorize and direct the
investigating fiscal concerned or any other fiscal or state prosecutor to cause or move
for the dismissal of the case, or, where he finds a prima facie case, to cause the filing
of an information in court against the respondent, based on the same sworn statements
or evidence submitted without the necessity of conducting another preliminary
investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7
dated
January
25,
1990
governing
appeals
in
preliminary
investigation. Appeals under Section 2 are limited to resolutions dismissing a
criminal complaint. However, Section 4 provides an exception: appeals from
resolutions finding probable cause upon a showing of manifest error or grave
abuse of discretion are allowed, provided the accused has not been

arraigned. In the present case, petitioners appeal to the secretary of justice

was given due course on August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order
No. 223; however, the scope of appealable cases remained unchanged:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except
as otherwise provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty
prescribed for the offense charged does not exceed prisin correccional, regardless of
the imposable fine, shall be made to the Regional State Prosecutors who shall resolve
the appeals with finality, pursuant to Department Order No. 318 dated August 28,
1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August
11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be
governed by these rules.
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 cause except 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, x x x
appeal shall be dismissed motu proprio 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.
Apart from the foregoing statutory and administrative issuances, the power
of review of the secretary of justice is recognized also by Section 4 of Rule
112 of the Rules of Court:
SEC. 4. Duty of investigating fiscal.--x x x x
xxx

xxx
xxx

If upon petition by a proper party, the Secretary of Justice reverses the resolution of
the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal of the complaint or
information.
This appeal rests upon the sound discretion of the secretary of justice
arising from his power of supervision and control over the prosecuting arm of
the government, not on a substantial right on the part of the accused as
claimed by petitioner.
Appeal Did Not Divest the Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an
information has been filed, trial courts should defer or suspend arraignment
and further proceedings until the appeal is resolved. Such deferment or
suspension, however, does not signify that the trial court is ipso facto bound
by the resolution of the secretary of justice. Jurisdiction, once acquired by the
trial court, is not lost despite a resolution by the secretary of justice to
withdraw the information or to dismiss the case.
Judicial Review of the Resolution of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts
to settle actual controversies involving rights which are legally demandable
and enforceable. Such power includes the determination of whether there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government. Under this
definition, a court is without power to directly decide matters over which full
discretionary authority has been delegated to the legislative or executive
branch of the government. It is not empowered to substitute its judgment for
that of Congress or of the President. It may, however, look into the question of
whether such exercise has been made in grave abuse of discretion.
[28]

Judicial review of the acts of other departments is not an assertion of

superiority over them or a derogation of their functions. In the words of
Justice Laurel in Angara vs. Electoral Commission:
[29]

x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not

in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument sources and guarantees to them. This is in
truth all that is involved in what is termed judicial supremacy which properly is the
power of the judicial review under the Constitution. x x x.
It is not the purpose of this Court to decrease or limit the discretion of the
secretary of justice to review the decisions of the government prosecutors
under him. In Crespo, the secretary was merely advised to restrict such
review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of
Court, which recognizes such power, does not, however, allow the trial court
to automatically dismiss the case or grant the withdrawal of the information
upon the resolution of the secretary of justice. This is precisely the import
of Crespo, Marcelo, Martinez vs. Court of Appeals and the recent case
of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make
its own evaluation of the merits of the case, because granting the motion to
dismiss or to withdraw the information is equivalent to effecting a disposition of
the case itself.
[30]

The Marcelo and Martinez Cases Are Consistent

In Marcelo vs. Court of Appeals, this Court ruled that, although it is more
prudent to wait for a final resolution of a motion for review or reinvestigation
from the secretary of justice before acting on a motion to dismiss or a motion
to withdraw an information, a trial court nonetheless should make its own
study and evaluation of said motion and not rely merely on the awaited action
of the secretary. The trial court has the option to grant or deny the motion to
dismiss the case filed by the fiscal, whether before or after the arraignment of
the accused, and whether after a reinvestigation or upon instructions of the
secretary who reviewed the records of the investigation; provided that such
grant or denial is made from its own assessment and evaluation of the merits
of the motion.
[31]

In Martinez vs. Court of Appeals, this Court overruled the grant of the
motion to dismiss filed by the prosecuting fiscal upon the recommendation of
[32]

the secretary of justice because such grant was based upon considerations
other than the judges own assessment of the matter. Relying solely on the
conclusion of the prosecution to the effect that there was no sufficient
evidence against the accused to sustain the allegation in the information, the
trial judge did not perform his function of making an independent evaluation or
assessment of the merits of the case.
Despite the pronouncement in Marcelo that a final resolution of the appeal
to the Department of Justice is necessary, both decisions followed the rule
in Crespo vs. Mogul:Once a complaint or information is filed in court, any
disposition of the case such as its dismissal or its continuation rests on the
sound discretion of the court. Trial judges are thus required to make their own
assessment of whether the secretary of justice committed grave abuse of
discretion in granting or denying the appeal, separately and independently of
the prosecutions or the secretarys evaluation that such evidence is
insufficient or that no probable cause to hold the accused for trial exists. They
should embody such assessment in their written order disposing of the
motion.
The above-mentioned cases depict two extreme cases in complying with
this rule. In Marcelo, the dismissal of the criminal action upon the favorable
recommendation of the Review Committee, Office of the City Prosecutor, was
precipitate in view of the pendency of private complainants appeal to the
secretary of justice. In effect, the secretarys opinion was totally disregarded
by the trial court. In contrast, in Martinez the dismissal of the criminal action
was an erroneous exercise of judicial discretion as the trial court relied hook,
line and sinker on the resolution of the secretary, without making its own
independent determination of the merits of the said resolution.
No Grave Abuse of Discretion in theResolution of the Secretary of
Justice
In the light of recent holdings in Marcelo and Martinez; and considering
that the issue of the correctness of the justice secretarys resolution has been
amply threshed out in petitioners letter, the information, the resolution of the
secretary of justice, the motion to dismiss, and even the exhaustive discussion
in the motion for reconsideration all of which were submitted to the court --

the trial judge committed grave abuse of discretion when it denied the motion
to withdraw the information, based solely on his bare and ambiguous reliance
on Crespo. The trial courts order is inconsistent with our repetitive calls for an
independent and competent assessment of the issue(s) presented in the
motion to dismiss. The trial judge was tasked to evaluate the secretarys
recommendation finding the absence of probable cause to hold petitioner
criminally liable for libel. He failed to do so. He merely ruled to proceed with
the trial without stating his reasons for disregarding the secretarys
recommendation.
Had he complied with his judicial obligation, he would have discovered
that there was, in fact, sufficient ground to grant the motion to withdraw the
information. The documents before the trial court judge clearly showed that
there was no probable cause to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this
Court would normally remand the case to the trial judge for his or her
independent assessment of the motion to withdraw the information. However,
in order not to delay the disposition of this case and to afford the parties
complete relief, we have decided to make directly the independent
assessment the trial court should have done. The petitioner has attached as
annexes to the present petition for review the information, which contains a
complete and faithful reproduction of the subject letter, the resolution of the
secretary of justice, the prosecutions motion for reconsideration of the trial
courts Order of February 22, 1993, and even the private complainants
opposition to said motion. The records below have been reproduced and
submitted to this Court for its appreciation. Thus, a remand to the trial court
serves no purpose and will only clog the dockets.
We thus proceed to examine the substance of the resolution of the
secretary of justice. The secretary reversed the finding of probable cause on
the grounds that (1) the subject letter was privileged in nature and (2) the
complaint was merely a countercharge.
In every case for libel, the following requisites must concur:
(a)

it must be defamatory;

(b)

it must be malicious;

(c)

it must be given publicity; and

(d)

the victim must be identifiable.

At the preliminary investigation stage, these requisites must show prima

facie a well-founded belief that a crime has been committed and that the
accused probably committed it. A cursory reading of the information
immediately demonstrates a failure on the part of the complainant to establish
the foregoing elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no
good intention or justifiable motive for making it is shown. There is malice
when the author of the imputation is prompted by personal ill will or spite and
speaks not in response to duty but merely to injure the reputation of the
person who claims to have been defamed. In this case however, petitioners
letter was written to seek redress of proper grievance against the inaccurate
distribution and payment of professional fees and against unfair treatment in
the Nuclear Medicine Department of the Philippine Heart Center. It is a
qualified privileged communication under Article 354(1) of the Revised Penal
Code which provides:
[33]

ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to

be malicious, even if it be true, if no good intention and justifiable motive for making
it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and
xxx

xxx
xxx

The rule on privileged communication is that a communication made in

good faith on any subject matter in which the communicator has an interest, or
concerning which he has a duty, is privileged if made to a person having a
corresponding interest or duty, although it contains incriminatory matter which,
without the privilege, would be libelous and actionable. Petitioners letter was

a private communication made in the performance of a moral duty on her

part. Her intention was not to inflict an unjustifiable harm on the private
complainant, but to present her grievance to her superior. The privileged
nature of her letter overcomes the presumption of malice. There is no malice
when justifiable motive exists; and in the absence of malice, there is no
libel. We note that the information itself failed to allege the existence of
malice.
Thus, we agree with the ruling of the secretary of justice:

[34]

x x x (T)he subject letter was written to bring to the attention of the Director of
the Philippine Heart Center for Asia and other responsible authorities the unjust and
unfair treatment that Dr. Ledesma was getting from government employees, and the
subject letter is a complaint x x x on a subject matter in which respondent has an
interest and in reference to which she has a duty to question the same is definitely
privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA
455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a
communication made in good faith upon any subject matter in which the party making
the communication has an interest or concerning which he has a duty is privileged
although it contains incriminatory or derogatory matter which, without the privilege,
would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a
direct evidence of respondents righteous disposition of following the rule of law and
is a clear indication that her purpose was to seek relief from the proper higher
authority xxx.
The same interpretation should be accorded the civil and administrative complaints
which respondent filed against complainants. They are mere manifestations of her
earnest desire to pursue proper relief for the alleged injustice she got
from complainants. If she was motivated by malice and ill-will in sending the subject
communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.
In Alonzo, the settled rule is that, when a public officer, in the discharge of
his or her official duties, sends a communication to another officer or to a body
of officers, who have a duty to perform with respect to the subject matter of

the communication, such communication does not amount to publication

within the meaning of the law on defamation. Publication in libel means
making the defamatory matter, after it has been written, known to someone
other than the person to whom it has been written. The reason for such rule
is that a communication of the defamatory matter to the person defamed
cannot injure his reputation though it may wound his self-esteem. A mans
reputation is not the good opinion he has of himself, but the estimation in
which others hold him. In this case, petitioner submitted the letter to the
director of said hospital; she did not disseminate the letter and its contents to
third persons. Hence, there was no publicity and the matter is clearly
covered by paragraph 1 of Article 354 of the Penal Code.
[35]

[36]

[37]

Further, we note that the information against petitioner was filed only on
July 27, 1992 or one year after June 27, 1991, the date the letter was sent. It
is obviously nothing more than a countercharge to give Complainant Torres a
leverage against petitioners administrative action against him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the
information and the reconsideration thereof was not only precipitate but
manifestly erroneous. This is further compounded by the fact that he did not
explain his grounds for his denial inasmuch as he did not make an
independent assessment of the motion or the arguments in the resolution of
the secretary of justice. All in all, such rash action did not do justice to the
sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly rested
his action, or to the directive in Marcelo and Martinez where this Court
required trial courts to make an independent assessment of the merits of the
motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET
ASIDE. The Motion to Withdraw the Information dated February 17, 1993
filed before the trial court is GRANTED. No costs.
SO ORDERED.
14. Sierra vs. Lopez AC. 7549, August 29, 2008

AURELIO M. SIERRA,

Adm. Case No. 7549

Complainant,
Present:
- versus -

JHOSEP Y. LOPEZ, City Prosecutor of

Manila, EUFROCINO SULLA,
1stAssistant City Prosecutor (ACP), ACP
ALEXANDER T. YAP, ACP MARLO
CAMPANILLA, and ACP ARMANDO
VELASCO,
Respondents.

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
Promulgated:
August 29, 2008

x------------------------------------------------------------------------------------x

DECISION
NACHURA, J.:

The instant controversy arose from a complaint for dereliction of duty and
gross ignorance of the law by Aurelio M. Sierra against City Prosecutor of Manila
Jhosep Y. Lopez, 1st Assistant City Prosecutor (ACP) Eufrocino Sulla, Assistant
City Prosecutors Alexander Yap, Marlo Campanilla and Armando Velasco.

The facts of the case are as follows:

On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed
several cases before the Office of the City Prosecutor of Manila for
Misrepresentation through Deceit and Syndicated Large Scale Fraud in Land
Titling with Conspiracy, Land Grabbing, Falsification of Public Document and
Economic Sabotage.
These cases were first assigned to ACP Alexander T. Yap. The principal
respondents therein, namely: Alfredo C. Ramos, Presentacion Ramos, George S.K.
Ty, Atty. Emmanuel Leonardo, and a certain Mr. Cayaban, did not appear during
the scheduled hearing. However, Alfredo and Presentacion Ramos appeared in the
morning of that day ahead of the complainant in which they submitted their
respective counter-affidavits, subscribed and sworn to before ACP Yap. The
respondents asked that they be allowed to submit their counter-affidavits ahead of
the scheduled hearing because they had an urgent matter to attend to in the
afternoon. In the case of George S.K. Ty and Mr. Cayaban, their respective
counter-affidavits were submitted by their lawyers during the scheduled hearing in
the afternoon, already subscribed and sworn to before a Pasig Prosecutor. Atty.
Leonardo did not submit any counter-affidavit.
Because of ACP Yaps failure to require the presence of respondents in said
cases simultaneously with the complainant, Mr. Sierra asked for the prosecutors
inhibition. The cases were then re-raffled to the respondent ACP Marlo
Campanilla who likewise did not require the presence of the respondents in the
preliminary investigation. Because of this, he too was asked to inhibit from the
cases by complainant.
The cases were then re-raffled to ACP Armando Velasco who also handled
the cases in the same manner as the two other prosecutors before him. City
Prosecutor Jhosep Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the
correctness of the manner in which their investigating prosecutors handled the
cases.

On April 26, 2007, Sierra filed a complaint with the Supreme Court for
dereliction of duty and gross ignorance of the law against City Prosecutor
Lopez, 1stACP Sulla, ACP Yap, ACP Campanilla, and ACP Velasco.
In his complaint, Sierra raises the following questions of law: (1) whether
the parties must appear together before the investigating prosecutor during
preliminary investigation; (2) whether the counter-affidavits of the respondents
should be sworn to only before the investigating prosecutor; and (3) whether the
investigating prosecutor erred in denying the request of the complainant for
clarificatory questioning.
The Supreme Court Third Division then issued a Resolution dated July 25,
2008 requiring respondents to comment on the complaint.
In compliance with the Honorable Courts order, respondents filed their
Comment dated March 7, 2008 stating that they handled the cases properly and in
accordance with what was provided by law. They also argued that they had not
committed any dereliction of duty and gross ignorance of the law.
We find no merit in the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays down the basic
procedure in preliminary investigation, as follows:
Sec. 3. Procedure. The preliminary investigation shall be
conducted in the following manner:
(a)
The complaint shall state the address of the respondent
and shall be accompanied by the affidavits of the complainant and his
witnesses, as well as other supporting documents to establish probable
cause. They shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability,
before a notary public, each of whom 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 it if he finds no ground to
continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and
documents.
The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been furnished and
to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to
present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be
made available for examination, copying, or photographing at the
expense of the requesting party.
(c)
Within ten (10) days from receipt of the subpoena with
the complaint and supporting affidavits and documents, the respondent
shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counteraffidavits, shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a motion to
dismiss in lieu of a counter-affidavit.
(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 resolve the complaint based on the
evidence presented by the complainant.
(e)
The investigating officer may set a hearing if there are
facts and issues to be clarified from a party or a witness. The parties can
be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission
of the counter-affidavits and other documents or from the expiration of

the period for their submission. It shall be terminated within five (5)
days.
(f)
Within ten (10) days after the investigation, the
investigating officer shall determine whether or not there is sufficient
ground to hold the respondent for trial.

This provision of the Rules does not require a confrontation between the
parties. Preliminary investigation is ordinarily conducted through submission of
affidavits and supporting documents, through the exchange of pleadings.
In Rodis, Sr. v. Sandiganbayan[1] we ruled that (the New Rules on Criminal Procedure) do not require as a condition
sine qua non to the validity of the proceedings ( in the preliminary
investigation) the presence of the accused for as long as efforts to reach
him were made, and an opportunity to controvert evidence of the
complainant is accorded him. The obvious purpose of the rule is to
block attempts of unscrupulous respondents to thwart the prosecution of
offenses by hiding themselves or by employing dilatory tactics.

Since confrontation between the parties is not imperative, it follows that it is

not necessary that the counter-affidavit of respondent be sworn to before the
investigating prosecutor himself. It can be sworn to before another prosecutor. In
fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the
counter-affidavit shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section x x x; and paragraph (a), provides:
the affidavits shall be subscribed and sworn to before any prosecutor or
government official or in their absence or unavailability, before a notary
public x x x.

Lastly, we hold that the investigating prosecutors did not abuse their
discretion when they denied the request of the complainant for the conduct of
clarificatory questioning. Under paragraph (e) of Section 3 above, the conduct of
clarificatory questioning is discretionary upon the prosecutor. Indeed, we already

held in Webb v. De Leon[2] that the decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator, and the
investigator alone.
WHEREFORE, premises considered, the complaint is DENIED for lack of
merit.
SO ORDERED.
15. People vs. Tan GR No. 182310 December 9, 2009

PEOPLE OF THE PHILIPPINES,

G.R. No. 182310

Petitioner,
Present:

Carpio, J., Chairperson,

- versus -

Leonardo-De Castro,
Brion,
Del Castillo, and
Abad, JJ.

JAN MICHAEL TAN

and ARCHIE TAN,

Promulgated:

Respondents.
December 9, 2009
x
x

----------------------------------------------------------------------------------------

DECISION
ABAD, J.:

The Facts and the Case

The facts are based on the affidavits of the witnesses

adduced at the preliminary investigation of the case.

Francisco Bobby Tan (Bobby), a businessman, lived with his

family and a big household in a compound on M.H. del Pilar St.,
Molo, Iloilo City. His immediate family consisted of his wife,
Cynthia Marie (Cindy), and their six children, namely, Raffy,
Kristine, Katrina, Karen, Katherine, and Kathleen. Bobbys two
older but illegitimate sons by another woman, respondents Archie
and Jan Michael (Jan-Jan), also lived with him. Cindy treated them
as her stepsons.

There were others in Bobbys house: his aunt Conchita Tan,

his cousin Shirley Young, Shirleys daughter Sheryl, eight
servants, and Vini Gulmatico, a former family security guard who
was transferred to another post on January 2, 2006 after being
caught asleep on the job. The family had a frequent guest, Mike
Zayco, Cindys brother, and his sidekick Miguel Sola. [1]

At around 6:00 p.m. on January 8, 2006, Bobby and Raffy,

Bobbys eldest son by Cindy, left the house for a cockfight. About
that time, Bobbys other son, respondent Archie, drove out with
the rest of the family to go to mass. They returned around 7:10
p.m. and had dinner. They were joined by Bobbys aunt Conchita,
his cousin Shirley, and the latters daughter Sheryl. At about 7:45
p.m., Bobby and Raffy returned from the cockfight but did not join
the dinner, having already eaten elsewhere. Bobby went up
directly to the masters bedroom on the second floor.

After dinner, all the members of the family went to their

respective rooms. Cindy joined her husband in the masters
bedroom with their second to the youngest, Katherine, and her
nanny. Katrina, one of the daughters, went to the girls bedroom
to study. Shirleys daughter Sheryl went to the masters bedroom
at around 8:10 p.m. to let Cindy try the new pair of jeans given to
her by another cousin. Sheryl left afterwards to go to her
bedroom.[2]

At around 8:35 p.m., Borj, a blind masseur, and an escort

arrived at the house for Bobbys massage in his room. At around
8:55 p.m., Emelita Giray, the regular masseuse of Shirley and
Sheryl, arrived with her husband.

About 9:30 p.m., Kristine, Bobbys second to the oldest, went

to her parents room to get a bottle of shampoo and say

goodnight.[3] Borj and his escort left Bobbys residence at around

9:53 p.m., followed about an hour later by Emelita and her
husband.

Around 10:30 p.m., Cindys stepson, respondent Archie, went

to the garage and took two pairs of gloves, still wrapped in
plastic, from his car. Archie also picked up a pack of cigarettes
that he left earlier with their security guard, Ramel Lobreza,
before going back upstairs.[4]

At around 10:45 p.m., respondents Archie and Jan-Jan

joined Raffy, Bobbys oldest child by Cindy, and their driver Julito
Geronda in watching a DVD movie on Raffys laptop at the
carport. Jan-Jan went back to his room at around 11:00 p.m. but
Archie remained to finish his cigarette. He, too, left afterwards for
his room to change.[5] By 11:55 p.m. Raffy turned off the video.[6]

A few minutes later or at 12:17 a.m. of the next day

(January 9, 2006), while security guard Lobreza was making his
inspection rounds of the compound, he noticed that the lights
were still on in the rooms of Cindys stepsons, respondents Archie
and Jan-Jan.

According to respondents Archie and Jan-Jan, they climbed

down the high concrete fence of the compound at about 12:45
a.m to go out. They took a cab toCalzada Bar, Camp Jefferson

Club, and Caltex Starmart.[7] They returned home at around 3:30

a.m.

Respondent Jan-Jan entered the house ahead of his

brother. On reaching the door of his room at the end of the
hallway, he noticed his stepsister Katherine, the second to the
youngest, lying on the floor near the masters bedroom. As JanJan switched on the light in his room, he beheld her lying on a
pool of blood. He quickly stepped into the masters bedroom and
there saw his father, Bobby, lying on the bed with his chest
drenched in blood.[8]

Almost simultaneously, respondent Archie who had come

into the house after his brother Jan-Jan noticed that the door of
his room, which he locked earlier, was partly open. As he went in
and switched on the light, he saw his stepmother Cindy, lying in
her blood near the wall below the air conditioner. He then heard
Jan-Jan shouting to him that their father was dead. Archie
immediately ran downstairs to call security guard Lobreza while
his brother Jan-Jan went around and awakened the rest of the
family. Because Lobreza did not respond to shouts, Archie ran to
his room to rouse him up. He told him what he discovered then
awakened the other house-helps.[9]

Respondent Archie then phoned police officer Nelson

Alacre, told him what had happened, and requested him to come
immediately. Officer Alacre arrived after a few minutes with some
other officers. They questioned Archie and Jan-Jan and took urine

samples from them. The tests showed them negative for illegal
drug use.[10]

Around 4:20 a.m., Officer Alacre rode with respondent

Archie on the latters Toyota Rav4 and they drove to the house of
Col. John Tarrosa, a family friend. They then went to the house of
Manolo Natal, Bobbys cockfight llamador, to pick him up before
driving back to Bobbys residence.[11] Meanwhile, on hearing
about the crime, the Criminal Investigation and Detection Group
(CIDG) Regional Chief directed his own men to investigate the
crime scene.[12]

On the afternoon of January 11, 2006, two days after the

remains of the victims were brought home for the wake, Atty.
Leonardo E. Jiz supposedly asked respondents Archie and Jan-Jan,
Cindys stepsons, to sign a statement that the police
prepared. The lawyer did not, however, let them read the
document or explain to them its contents. They signed it on Atty.
Jizs assurance that they would have the chance to read the
statement later at the public prosecutors office and correct any
mistakes before swearing to the same. The complainants did not,
however, present this statement during the preliminary
investigation nor did Archie and Jan-Jan swear to it before a public
prosecutor.[13]

Another two days later or on January 13, 2006, police

officers from the Regional CIDG submitted their investigation
report to the City Prosecutors Office of Iloilo City. This pointed to

respondents Archie and Jan-Jan as principal suspects in the brutal

killing of their parents and a young stepsister. [14] On January 18,
2006 police officer Eldy Bebit of the CIDG filed a complaintaffidavit with the City Prosecutors Office, accusing the two
brothers of parricide and double murder. [15] The parties submitted
their affidavits and pieces of evidence at the preliminary
investigation.[16]

On September 29, 2006 the City Prosecutors Office filed

separate informations for two murders and parricide against
respondents Archie and Jan-Jan before the Regional Trial Court
(RTC) of Iloilo City in Criminal Cases 06-63030 to 06-63032.[17]

On October 3, 2006 respondents Archie and Jan-Jan filed a

motion for judicial determination of probable cause with a prayer
to suspend the issuance of warrants of arrest against them in the
meantime.[18] Further, on October 5, 2006 they asked the RTC to
defer further proceedings in order to give them the opportunity to
question the public prosecutors resolution in the case before the
Secretary of Justice.[19]

On October 6, 2006 the acting presiding judge of the RTC

issued an order, directing the prosecution to correct certain
deficiencies in its evidence against respondents. [20] On October
20, 2006, the City Prosecutor of Iloilo City filed a manifestation,
informing the RTC of his partial compliance with its order. He also
filed an urgent ex parte motion for clarificatory exception.[21]

On December 23, 2008 Rosalinda Garcia-Zayco, Cindys

mother and court-appointed guardian ad litem of her minor
grandchildren, opposed respondents Archie and Jan-Jans petition
for review before the Department of Justice (DOJ). [22] She pointed
out that the two had sufficient motive to commit the crimes of
which they were charged. They openly showed disrespect
towards their father, Bobby, and constantly had heated
arguments with him. They also nurtured ill feelings and
resentment towards Cindy, their stepmother, they being
illegitimate children. They never accepted the fact that Bobby
married Cindy rather than their mother. The National Bureau of
Investigation report classified the crimes as motivated by hatred.
[23]

Cindys mother made capital of the absence of respondents

Archies and Jan-Jans fingerprints in any part of their own rooms,
particularly the light switches and the doorknobs. She cited the
Investigating Prosecutors theory that either of the accused used
the wet red shirt hanging in Jan-Jans bathroom to erase all
fingerprints at the crime scene, something that forensic science
can justify.[24]

Moreover, while investigators were still examining the

crime scene, Bobbys aunt Conchita called a locksmith to force
open Bobbys safes in the masters bedroom as well as in his
office on De Leon Street. This fact came to the surface during the
preliminary investigation of a complaint for robbery that Conchita

filed against Cindys brother, Mike Zayco, his sidekick Miguel Sola,
Natividad Zayco, and police superintendent Gumban of the
CIDG. The police surmised that Conchita brought this criminal
action to divert attention from the murder case and from
respondents Archie and Jan-Jan.[25]

Lastly, nine days after the victims burial, respondent Archie

filed a petition for the settlement of Bobby and Cindys estate,
nominating Conchita as administratrix of the estate. He filed
an ex parte motion for her appointment as special administrator
for the meantime without consulting his half-siblings. The estate
court granted the motion. Archie reportedly continued with his
nightly bar hopping even during the wake of his father.

Respondents Archie and Jan-Jans defense is alibi. They

claimed that they were away when the crimes took place at the
house. Based on Dr. Lebaquins forensic computation, however,
the victims probably died at about midnight, more or less. The
two were still at home when the killings happened.

On October 27, 2006 the RTC, then temporarily presided

over by Judge Narciso Aguilar, found no probable cause against
respondents Archie and Jan-Jan. Judge Aguilar thus granted their
motion to suspend the issuance of warrants for their arrest and to
defer the proceedings.[26] The two respondents then filed a
motion to dismiss the case. [27] On January 12, 2007 the RTC
issued an order, directing the City Prosecutors Office to submit
additional evidence in the case but the latter office asked for

more time to comply.[28] Meanwhile, the DOJ issued a resolution

dismissing respondents Archie and Jan-Jans petition for review. [29]

After a new presiding judge, Judge Globert Justalero, took

over the RTC, he issued an order on March 30, 2007 granting the
prosecutions request for additional time within which to comply
with the courts order of January 12, 2007. [30] On April 2, 2007 the
prosecutors office filed its compliance and submitted its
amended resolution in the case. [31] The petitioners assailed this
amended resolution and pointed out that the public prosecutor
did not submit any additional evidence. [32]

On April 23, 2007 Judge Justalero reversed the order of the

previous presiding judge. He found probable cause against
respondents Archie and Jan-Jan this time and ordered the
issuance of warrants for their arrest. [33] Without seeking
reconsideration of Judge Justaleros order, Archie and Jan-Jan filed
the present petition for certiorari with the Court of Appeals (CA)
of Cebu City in CA-G.R. CEB-SP 02659.[34] After hearing, the CA
granted the petition, set aside the RTC order of April 23, 2007,
and annulled the warrants of arrest that Judge Justalero
issued. The CA also dismissed the criminal cases against the
respondents.[35] The public prosecutor filed a motion for
reconsideration of the CAs decision through the Office of the
Solicitor General but the latter court denied it, [36] hence, this
petition.

The Issues Presented

Respondents Archie and Jan-Jan present the following issues

for resolution by this Court:

a)
Whether or not the CA committed error in
ruling that Judge Justalero gravely abused his discretion
when he re-examined his predecessors previous finding
that no probable cause existed against respondents
Archie and Jan-Jan despite the absence of new evidence
in the case; and

b)
Whether or not the CA committed error in
ruling that Judge Justalero gravely abused his discretion
when he made a finding that there is probable cause to
issue a warrant for the arrest of the two.

The Courts Rulings

One. The CA pointed out that since the prosecution did not
submit additional evidence before the RTC, its new presiding
judge (Judge Justalero) gravely abused his discretion when he reexamined and reversed his predecessors finding of lack of
probable cause against respondents Archie and Jan-Jan.

But the record shows that, although Judge Aguilar, the

former presiding judge, found no probable cause against
respondents Archie and Jan-Jan, he did not altogether close the
issue. In fact, he ignored their motion to dismiss the case and
even directed the City Prosecutors Office to submit additional
evidence. This indicates that he still had doubts about his
finding. Meanwhile, the DOJ, looking at the evidence, affirmed the
City Prosecutors decision to file charges against Archie and JanJan. After Judge Justalero took over, he gave the prosecution the
additional time it asked for complying with the courts order. On
April 2, 2007 the prosecution filed its compliance together with its
amended resolution in the case.

Actually, therefore, two new developments were before

Judge Justalero: first, the DOJs denial of the appeal of the two
accused and its finding that probable cause existed against them
and, two, the local prosecutors submittal, if not of some new
evidence, of additional arguments respecting the issue of
probable cause. Grave abuse of discretion implies an irrational
behavior. Surely, this cannot be said of Judge Justalero who reexamined in the light of the new developments what in the first
place appeared to be an unsettled position taken by his
predecessor.

What is more, the previous judge did not yet act on

respondents Archie and Jan-Jans motion to dismiss the criminal
case against them. Consequently, the new judge still had full
control of the interlocutory orders that his predecessor had issued

in the case, including the order finding not enough evidence to

justify the issuance of warrants of arrest against them. The new
judge could reconsider and recall such order either motu propio or
on motion when the circumstances warranted.

Two. The CA held that Judge Justalero gravely abused his

discretion when he made a finding that there is probable cause to
warrant the arrest of Archie and Jan-Jan.

But what is probable cause? Probable cause assumes the

existence of facts that would lead a reasonably discreet and
prudent man to believe that a crime has been committed and that
it was likely committed by the person sought to be arrested. [37] It
requires neither absolute certainty nor clear and convincing
evidence of guilt.[38] The test for issuing a warrant of arrest is less
stringent than that used for establishing the guilt of the
accused. As long as the evidence shows a prima faciecase
against the accused, the trial court has sufficient ground to issue
a warrant for his arrest.

Here, admittedly, the evidence against respondents Archie

and Jan-Jan is merely circumstantial. The prosecution evidence
shows that they had motive in that they had been at odds with
their father and stepmother. They had opportunity in that they
were still probably home when the crime took place. Archie took
two pairs of new gloves from his car late that evening. Cindy was
apparently executed inside Archies room. The separate rooms of
the two accused had, quite curiously, been wiped clean even of

their own fingerprints. A trial, unlike preliminary investigations,

could yield more evidence favorable to either side after the
interrogations of the witnesses either on direct examination or on
cross-examination. What is important is that there is some
rational basis for going ahead with judicial inquiry into the
case. This Court does not subscribe to the CAs position that the
prosecution had nothing to go on with.

WHEREFORE, the Court REVERSES and SETS ASIDE the

Court of Appeals decision dated December 19, 2007 and
resolution
dated
March
25,
2008,
andAFFIRMS
and
REINSTATES the Regional Trial Courts order dated April 23,
2007.

SO ORDERED.
16. People vs. Tan GR No. 191069

PEOPLE OF
THE PHILIPPINES,

G.R. No. 191069

Plaintiff-Appellee,

Present:

- versus -

CORONA, J., Chairperson,

VELASCO, JR.,
LEONARDO-DE CASTRO,

SULPICIO SONNY BOY TAN

y PHUA,

PERALTA,* and

Accused-

PEREZ, JJ.

Appellant.
Promulgated:

November 15, 2010

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The Case
This is an appeal from the October 26, 2009 Decision [1] of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03245
entitled People of the Philippines v. Sulpicio Sonny Boy Tan y
Phua, which affirmed the December 18, 2007 Decision [2] in
Criminal Case No. 06-426 of the Regional Trial Court (RTC), Branch
65 in Makati City. The RTC found accused-appellant Sulpicio Sonny
Boy Tan y Phua guilty of violation of Section 11, Article II of
Republic Act No. (RA) 9165 or theComprehensive Dangerous
Drugs Act of 2002.

The Facts
The charge against accused-appellant stemmed from the
following Information:
That on or about the 20th day of February, 2006, in
the City of Makati, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named
accused, not being lawfully authorized to possess or
otherwise use any dangerous drug, and without the
corresponding license or prescription, did then and there
willfully, unlawfully and feloniously have in his possession,
direct custody and control, 120 tablets of Valium 10 mg
weighing a total of nineteen point six (19.6) grams, said
tablets contain Diazepam which is a dangerous drug, in
violation of the above-cited law.

Contrary to law.[3]

On March 21, 2006, accused-appellant was initially

arraigned, and he pleaded not guilty to the charge against him.
However, on March 22, 2006, his counselde oficio, Atty. Clarence
S. Dizon, filed a motion to allow accused-appellant to withdraw his
earlier plea and for reinvestigation of the case. Seeing as there
was no objection from the prosecution, the RTC granted the
motion.
After finding that there exists probable cause against
accused-appellant for violation of Sec. 11, Art. II of RA 9165, the

prosecution filed on July 11, 2006 a motion to set the case for
arraignment and trial.[4] The motion was granted by the RTC.[5]
Thus, on July 18, 2006, accused-appellant, assisted by
counsel de oficio, Atty. Eliza B. Yu, re-entered his previous plea of
not guilty to the offense charged.[6]
During pre-trial, the parties entered into stipulation with
regard to the Final Investigation Report and the Acknowledgment
Receipt issued by the Makati City Police Station through Police
Officer 2 (PO2) Rafael Castillo. [7] Likewise, the parties stipulated
as to the testimony of the forensic chemist, Police Senior
Inspector Richard Allan B. Mangalip, who established the
existence of the request for drug test dated February 20, 2006
and the result dated February 22, 2006, [8] yielding positive result
for the presence of Diazepam, a dangerous drug. [9]
After the pre-trial conference, trial on the merits ensued.
During the trial, the prosecution presented as its witness
Senior Police Officer 2 (SPO2) Edmundo Geronimo. Thereafter, the
defense counsel stipulated as merely corroborative the
testimonies of PO1 Victoriano Cruz, Jr., SPO1 Carlo Quilala, and
PO3 Giovanni Avendano.
On the other hand, the defense presented as its sole
witness, Sonny Boy, accused-appellant himself.
From the evidence adduced by the prosecution, it appears
that on February 20, 2006, at around 1:15 in the morning, SPO2
Geronimo, SPO1 Quilala, PO3 Avendano, and PO1 Cruz of the
Makati City Philippine National Police (PNP) conducted a manhunt
operation against a suspect in a robbery case involving Korean
nationals
along
P.
Burgos, Barangay Poblacion, Makati City.

While on board their civilian vehicle, they chanced upon a male

individual selling certain items to two foreigners. They heard him
say, Hey Joe, want to buy Valium 10, Cialis, Viagra? [11] Curious,
they inquired and the male individual told them that he was
selling Viagra and Cialis, while, at the same time, showing them
the contents of his bag which yielded 120 tablets of Valium 10. [12]
[10]

The male individual, who later turned out to be Sonny Boy,

was immediately searched and placed under arrest, after which
they informed him of the nature of his apprehension and of his
constitutional rights. Sonny Boy was then brought to the office of
the Station Anti-Illegal Drugs Special Operations Task Force (SAIDSOTF), where the items recovered from him were marked and
inventoried by PO1 Cruz. The items were turned over to the duty
investigator.[13]
In contrast, Sonny Boy interposed the defense of denial. He
maintained that he was merely watching cars as a parking boy
along P. Burgos when two men suddenly held and invited him for
questioning.[14] They asked him if he knew any drug pushers and,
if he did, to identify them. When he was unable to do so, they
charged him for violation of Sec. 11, Art. II of RA 9165, which is
the subject of the instant case.
Ruling of the Trial Court
After trial, the RTC found accused-appellant guilty of the
crime. The dispositive portion of its December 18, 2007 Decision
reads:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered finding accused, SULPICIO SONNY BOY
TAN y PHUA, GUILTY, beyond reasonable doubt of the
charge for violation of Sec. 11 Art. 11, RA 9165 and

sentences him to suffer the penalty of LIFE

IMPRISONMENT and to pay a fine of Four Hundred
Thousand (P400,000.00).
xxxx
SO ORDERED.[15]

On appeal to the CA, accused-appellant disputed the lower

courts finding of his guilt beyond reasonable doubt of the crime
charged. He argued that the prosecution failed to establish every
link in its chain of custody and that the warrantless search and
arrest done by the police officers were illegal.
Ruling of the Appellate Court
On October 26, 2009, the CA affirmed the judgment of the
lower court finding that the prosecution succeeded in
establishing, with moral certainty, all the elements of illegal
possession of dangerous drugs. The dispositive portion of the CA
Decision reads:
WHEREFORE, premises considered, the decision of
the Regional Trial Court in Crim. Case No. 06-426 dated
December 18, 2007, finding accused-appellant Sulpicio
Sonny Boy Tan y Phua, guilty beyond reasonable doubt of
violation of Section 11, Article II, Republic Act No. 9165,
otherwise known as the Comprehensive Dangerous Drugs
Act of 2002, is AFFIRMED WITH MODIFICATION in that
accused-appellant is sentenced to suffer the penalty of
life imprisonment and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00).
SO ORDERED.[16]

Accused-appellant timely filed a notice of appeal from the

decision of the CA.
The Issues
Accused-appellant assigns the following errors:

I.

THE COURT A QUO GRAVELY ERRED IN ADMITTING THE

PROHIBITED DRUGS IN EVIDENCE DESPITE THE
PROSECUTIONS FAILURE TO ESTABLISH EVERY LINK IN ITS
CHAIN OF CUSTODY.

II.

THE COURT A QUO GRAVELY ERRED IN NOT FINDING THE

ACCUSED-APPELLANTS
WARRANTLESS
SEARCH
AND ARREST AS ILLEGAL.

III.

THE COURT A QUO GRAVELY ERRED IN FINDING THE

ACCUSED-APPELLANT
GUILTY
DESPITE
THE
PROSECUTIONS FAILURE TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.[17]

Our Ruling
The appeal has no merit.
Chain of Custody Was Properly Established
Accused-appellant maintains in his Brief that the police
officers failed to mark, inventory, and photograph the prohibited
items allegedly seized from him at the time of his
apprehension. Further, he contends that the prosecution failed
to establish how the prohibited items, which were marked by PO1
Cruz, received and inventoried by PO2 Castillo, were turned over
to PO1 Mendoza for delivery to the PNP Crime Laboratory for
examination.[18] He argues that [t]o successfully prove that the
chain of custody was unbroken, every link in the chain, meaning
everyone who held and took custody of the specimen, must
testify as to that degree of precaution undertaken to preserve
it.[19]
Such argument must fail.
The Implementing Rules and Regulations (IRR) of RA 9165
provides:
SECTION
21. Custody
and
Disposition
of
Confiscated, Seized and/or Surrendered Dangerous

Drugs, Plant Sources of Dangerous Drugs,

Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia
and/or
Laboratory
Equipment. The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following
manner:

(a) The apprehending officer/team having initial

custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or
the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given
a copy thereof; Provided, that the physical inventory
and photograph shall be conducted at the place
where the search warrant is served; or at the
nearest police station or at the nearest office of
the apprehending officer/team, whichever is
practicable,
in
case
of
warrantless
seizures; Provided, further, that non-compliance
with these requirements under justifiable grounds,
as long as the integrity and evidentiary value of
the seized items are properly preserved by the
apprehending officer/team, shall not render void
and invalid such seizures of and custody over said
items x x x. (Emphasis supplied.)

Evidently, the law itself lays down exceptions to its

requirements. Thus, contrary to the assertions of accusedappellant, Sec. 21 of the IRR need not be followed with pedantic
rigor. It is settled that non-compliance with Sec. 21 does not
render an accuseds arrest illegal or make the items seized
inadmissible.[20] What is imperative is the preservation of the
integrity and the evidential value of the seized items as the same
would be utilized in the determination of the guilt or innocence of
the accused.[21]
As a mode of authenticating evidence, the chain of custody
rule requires that the admission or presentation of an exhibit,
such as the seized prohibited drugs, be preceded by evidence
sufficient to support a finding that the matter in question is what
the proponent claims it to be.[22] As held by this Court in Malillin v.
People, this would ideally include the testimonies of all persons
who handled the specimen, viz:

x x x from the moment the item was picked up to

the time it is offered into evidence, in such a way that
every person who touched the exhibit would describe how
and from whom it was received, where it was and what
happened to it while in the witness possession, the
condition in which it was received and the condition in
which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of
the item and no opportunity for someone not in the chain
to have possession of the same.[23]

In the instant case, there was substantial compliance with

the law and the integrity of the drugs seized was preserved. The
testimony of SPO2 Geronimo categorically established the manner
by which the prohibited drugs were handled from the moment
they were seized from accused-appellant up to the time they were
turned over to the duty officer and investigator at SAID-SOTF,
who, in turn, turned them over to the PNP Crime Laboratory for
examination. All this was narrated by SPO2 Geronimo, as follows:
Prosecutor Henry M. Salazar:
Q:

Mr. Witness, last February 20, 2006, about 1:15 in

the early morning, can you tell us where were you?

SPO2 Eduardo Geronimo:

A:

On that particular date and time, 1:15 a.m.,

February 20, 2006, we are conducting a manhunt
operation against the suspect of a Robbery Break-in
on Korean Nationals.

Q:

And where were you conducting, Mr. Witness, this

follow up operation?

A:

Along P.
Burgos
Poblacion, Makati City.

Street,

Barangay

Q:

Can you tell us who were with you, Mr. Witness?

A:

SPO1 Carlo C. Quilala, PO3 Giovanni P. Avendano

and PO1 Victoriano J. Cruz, Jr.[24]
xxxx

Q:

In this particular time, 1:15 a.m., February 20,

2006, you mentioned that you were conducting a
follow-up operation regarding a Robbery Break-in on
Korean Nationals, where were you in particular at
that time?

A:

We were on board our issued civilian vehicle

Tamaraw FX with Plate Number SED-894.

Q:

Where were you positioned or located at that

time?

A:

We were on stop position in front of the Makati

Palace Hotel, more or less 5 meters away [sic] we
stopped.

Q:

On that position, Mr. Witness, can you tell us if you

can recall of any incident, which caught your
attention at that time?

A:

On that moment, we were having surveillance

against the suspect on the Robbery Break-in. We
caught the attention of one male person who was
selling items to two (2) foreigners.

Q:

How did you come to know Mr. Witness, that this

male person was engaged in selling items to these
two (2) male foreigners?

A:

After we saw and heard male person named

Sulpicio Sonny Boy Tan, we immediately alighted
from our vehicle and accosted said person and
brought him near our vehicle.

Q:

What did you hear from this male person, Mr.

Witness, which caused you to accost him and bring
him near your vehicle?

A:

We actually heard him saying, Hey Joe, want to

buy Valium 10, Cialis, Viagra.[25]
xxxx

Q:

And what did you tell this person when you accost
him and brought him near your vehicle?

A:

We asked him what are those items he was

selling?

Q:

When you asked him what item was he selling at

that time, what did he tell to your group?

A:

He told us only Viagra, Cialis.

Q:

And what did you do at that time after he informed

you that he was selling Viagra and Cialis?

A:

He showed it to us, and then we brought him in

front of our vehicle and he showed us the contents
of his bag.

Q:

And what did you find inside his bag at that time?

A:

Right on top of the hood of our vehicle he showed

us everything and we learned that not only Viagra,
Cialis but he has also Valium 10, 120 tablets.[26]
xxxx

Q:

Now, after these items which youve just

mentioned considering of Valium 10, Viagra, Cialis
were brought out from his bag and placed on top of
the hood of you(r) vehicle, what did you do next at
that time?

A:

After seeing the other drugs, Valium 10, we

effected the arrest and we brought him to SAIDSOTF.

Q:

And what happened after you brought this male

person to the SAID-SOTF?

A:

We turned over the suspect.

Q:

How about the items which you claimed to be with

him at that time, what did you do with them?

A:

We turned over the suspect as well as the

evidence we seized from him.

Q:

After having turned over these items, Mr. Witness,

what else did you do?

A:

Afterwards, sir, we executed our Affidavit of Arrest

that the investigator required.

Q:

How about the items, what did you do with these

from which you recovered from this male person?

A:

On February 20, 2008, we turned it over to the

duty officer and to the investigator, sir.

Q:

Before turning it over, Mr. Witness, what did you

do with these items?

A:

We put markings on them, sir.

Q:

Who marked these items, Mr. Witness?

A:

One of my colleague[s], sir, PO1 Victoriano Cruz.

Q:

Where were you at that time when PO1 Cruz

marked these items recovered from this male
person?

A:

We were already at the office of SAID-SOTF, right

in front of him, sir.

Q:

And what markings were placed by PO1 Cruz on

these items?

A:
Q:

He put Kokoy for 120 tablets of Valium 10.[27]

How about the other items, Mr. Witness, what
markings were placed by PO1 Cruz?

A:

Kokoy 2, Kokoy 3, Kokoy 4.

Q:

And after that, what else did you do at that time?

A:

We left the suspect to the investigation and then

we brought him to the jail.

Q:

In connection with the apprehension of this male

person, can you recall having executed an affidavit
or any document?

A:

We executed our Joint Affidavit of Arrest, sir.[28]

Moreover, it bears stressing that during the September 18,

2007 hearing, both parties stipulated to the effect that the

testimony of PO1 Cruz, as contained in the Joint Affidavit of Arrest,

is corroborative with that of all the other affiants. [29] Similarly,
during the pre-trial conference, the parties stipulated on the
testimony of PO2 Castillo, the investigator who issued the
Acknowledgment Receipt[30] of the seized drugs on behalf of SAIDSOTF and the Final Investigation Report[31] on the incident. And
lastly, the parties also stipulated on the testimony of the forensic
chemist who conducted the laboratory examination on the seized
drugs and issued Physical Science Report Nos. D-125-06S [32] and
DT-130-06S,[33] which both yielded positive results for dangerous
drugs. It was, in fact, due to these stipulations that all other
testimonies were dispensed with, as agreed to by both parties.
Therefore, it is evidently clear that the chain of custody of
the illicit drug found in accused-appellants presence was
unbroken.
Warrantless Search and Arrest Were Legal and Valid
Further, accused-appellant challenges the legality of his
warrantless search and arrest for the first time in his appeal. He
argues that such was illegal, since none of the instances wherein
a search and seizure may be done validly without a warrant was
present.
Such argument is untenable.
First of all, accused-appellant never raised this issue before
his arraignment. He never questioned the legality of his arrest
until his appeal. On this alone, the contention must fail. It has
been ruled time and again that an accused is estopped from
assailing any irregularity with regard to his arrest if he fails to
raise this issue or to move for the quashal of the information
against him on this ground before his arraignment.[34] Any

objection involving the procedure by which the court acquired

jurisdiction over the person of the accused must be made before
he enters his plea; otherwise, the objection is deemed waived. [35]
In the instant case, accused-appellant even requested a
reinvestigation during his initial arraignment, and, as a result, his
arraignment was postponed. He could have questioned the
validity of his warrantless arrest at this time but he did not. His
arraignment was then rescheduled where he entered a plea of not
guilty and participated in the trial. Thus, he is deemed to have
waived any question as to any defect in his arrest and is likewise
deemed to have submitted to the jurisdiction of the court.
What is more, Sec. 5, Rule 113 of the Rules on Criminal
Procedure clearly provides for the instances when a person may
be arrested without a warrant, to wit:
Sec. 5. Arrest without warrant; when lawful. A
peace officer or a private person may, without a 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 just been committed and
he has probable cause to believe based on personal
knowledge of facts or circumstances 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 is temporarily confined
while his case is pending, or has escaped while being
transferred from one confinement to another. (Emphasis
supplied.)

Undoubtedly, the case at bar falls under Sec. 5(a) of Rule

113, that is, when the person to be arrested is actually
committing an offense, the peace officer may arrest him even
without a warrant. However, a warrantless arrest must still be
preceded by the existence of probable cause. Probable cause is
defined as a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to induce a
cautious man to believe that the person accused is guilty of the
offense charged. [36]
In People v. Mariacos, the Court further expounded on the
definition of probable cause:
It refers to the existence of such facts and
circumstances that can lead a reasonably discreet and
prudent man to believe that an offense has been
committed, and that the items, articles or objects sought
in connection with said offense or subject to seizure and
destruction by law are in the place to be searched.
The grounds of suspicion are reasonable when, in
the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty
of committing the offense is based on actual facts, i.e.,
supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled with good
faith on the part of the peace officers making the arrest.[37]

Here, the arresting officers had sufficient probable cause to

make the arrest in view of the fact that they themselves heard
accused-appellant say, Hey Joe, want to buy Valium 10, Cialis,
Viagra?[38] which, in turn, prompted them to ask accusedappellant what he was selling. When accused-appellant showed

them the items, they identified 120 tablets of Valium 10, a

regulated drug. The police officers then became obligated to
arrest accused-appellant, as he was actually committing a crime
in their presencepossession of a dangerous drug, a violation of
Sec. 11, Art. II of RA 9165. Therefore, it is without question that
the warrantless search and arrest of accused-appellant are legal
and valid.
All things considered, this Court sees no compelling reason
to disturb the findings of the trial court. The prosecution
succeeded in establishing, with moral certainty, all the elements
of the crime of illegal possession of dangerous drugs: (1) the
accused is in possession of an item or object which is identified to
be a prohibited drug; (2) such possession is not authorized by law;
and (3) the accused freely and consciously possessed the said
drug.[39]

WHEREFORE, the appeal is DENIED. The CA Decision in CAG.R. CR-H.C. No. 03245 finding accused-appellant Sulpicio Sonny
Boy Tan y Phua guilty of the crime charged is AFFIRMED.

SO ORDERED.
17. People vs. Jalosjos GR No. 132875-76 February 3, 2000

[G.R. Nos. 132875-76. February 3, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO G.
JALOSJOS, accused-appellant.

RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo G. Jalosjos is a full-fledged member of
Congress who is now confined at the national penitentiary while his conviction
for statutory rape on two counts and acts of lasciviousness on six counts is
pending appeal. The accused-appellant filed this motion asking that he be
allowed to fully discharge the duties of a Congressman, including attendance
at legislative sessions and committee meetings despite his having been
convicted in the first instance of a non-bailable offense.
[1]

The issue raised is one of first impression.

Does membership in Congress exempt an accused from statutes and rules
which apply to validly incarcerated persons in general? In answering the
query, we are called upon to balance relevant and conflicting factors in the
judicial interpretation of legislative privilege in the context of penal law.
The accused-appellants "Motion To Be Allowed To Discharge Mandate As
Member of House of Representatives" was filed on the grounds that
1. Accused-appellants reelection being an expression of popular
will cannot be rendered inutile by any ruling, giving priority to any
right or interest not even the police power of the State.
2. To deprive the electorate of their elected representative
amounts to taxation without representation.
3. To bar accused-appellant from performing his duties amounts to
his suspension/removal and mocks the renewed mandate
entrusted to him by the people.
4. The electorate of the First District of Zamboanga del Norte
wants their voice to be heard.
5. A precedent-setting U.S. ruling allowed a detained lawmaker to
attend sessions of the U.S. Congress.

6. The House treats accused-appellant as a bona fide member

thereof and urges a co-equal branch of government to respect its
mandate.
7. The concept of temporary detention does not necessarily curtail
the duty of accused-appellant to discharge his mandate.
8. Accused-appellant has always complied with the
conditions/restrictions when allowed to leave jail.
The primary argument of the movant is the "mandate of sovereign will." He
states that the sovereign electorate of the First District of Zamboanga del
Norte chose him as their representative in Congress. Having been re-elected
by his constituents, he has the duty to perform the functions of a
Congressman. He calls this a covenant with his constituents made possible by
the intervention of the State. He adds that it cannot be defeated by
insuperable procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of the people. In the
exercise of suffrage, a free people expects to achieve the continuity of
government and the perpetuation of its benefits. However, inspite of its
importance, the privileges and rights arising from having been elected may be
enlarged or restricted by law. Our first task is to ascertain the applicable law.
We start with the incontestable proposition that all top officials of Governmentexecutive, legislative, and judicial are subject to the majesty of law. There is
an unfortunate misimpression in the public mind that election or appointment
to high government office, by itself, frees the official from the common
restraints of general law. Privilege has to be granted by law, not inferred from
the duties of a position. In fact, the higher the rank, the greater is the
requirement of obedience rather than exemption.
The immunity from arrest or detention of Senators and members of the House
of Representatives, the latter customarily addressed as Congressmen, arises
from a provision of the Constitution. The history of the provision shows that
the privilege has always been granted in a restrictive sense. The provision
granting an exemption as a special privilege cannot be extended beyond the

ordinary meaning of its terms. It may not be extended by intendment,

implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the Legislative Department:
Sec. 15. The Senators and Members of the House of
Representatives shall in all cases except treason, felony, and
breach of the peace be privileged from arrest during their
attendance at the sessions of Congress, and in going to and
returning from the same; xxx.
Because of the broad coverage of felony and breach of the peace, the
exemption applied only to civil arrests. A congressman like the accusedappellant, convicted under Title Eleven of the Revised Penal Code could not
claim parliamentary immunity from arrest. He was subject to the same general
laws governing all persons still to be tried or whose convictions were pending
appeal.
The 1973 Constitution broadened the privilege of immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in
all offenses punishable by not more than six years imprisonment,
be privileged from arrest during his attendance at its sessions and
in going to and returning from the same.
For offenses punishable by more than six years imprisonment, there was no
immunity from arrest. The restrictive interpretation of immunity and the intent
to confine it within carefully defined parameters is illustrated by the concluding
portion of the provision, to wit:
xxx but the Batasang Pambansa shall surrender the member
involved to the custody of the law within twenty four hours after its
adjournment for a recess or for its next session, otherwise such
privilege shall cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus the
obligation of Congress to surrender the subject Congressman to the custody
of the law. The requirement that he should be attending sessions or

committee meetings has also been removed. For relatively minor offenses, it
is enough that Congress is in session.
The accused-appellant argues that a member of Congress function to attend
sessions is underscored by Section 16 (2), Article VI of the Constitution which
states that
(2) A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and
may compel the attendance of absent Members in such manner,
and under such penalties, as such House may provide.
However, the accused-appellant has not given any reason why he should be
exempted from the operation of Section 11, Article VI of the Constitution. The
members of Congress cannot compel absent members to attend sessions if
the reason for the absence is a legitimate one. The confinement of a
Congressman charged with a crime punishable by imprisonment of more than
six months is not merely authorized by law, it has constitutional foundations.
Accused-appellants reliance on the ruling in Aguinaldo v. Santos , which
states, inter alia, that
[2]

The Court should never remove a public officer for acts done prior
to his present term of office. To do otherwise would be to deprive
the people of their right to elect their officers. When a people have
elected a man to office, it must be assumed that they did this with
the knowledge of his life and character, and that they disregarded
or forgave his fault or misconduct, if he had been guilty of any. It is
not for the Court, by reason of such fault or misconduct, to
practically overrule the will of the people.
will not extricate him from his predicament. It can be readily seen in the
above-quoted ruling that the Aguinaldo case involves the administrative
removal of a public officer for acts done prior to his present term of office. It
does not apply to imprisonment arising from the enforcement of criminal law.
Moreover, in the same way that preventive suspension is not removal,

confinement pending appeal is not removal. He remains a congressman

unless expelled by Congress or, otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after final
conviction, is public self-defense. Society must protect itself. It also serves as
an example and warning to others.
A person charged with crime is taken into custody for purposes of the
administration of justice. As stated in United States v. Gustilo, it is the injury
to the public which State action in criminal law seeks to redress. It is not the
injury to the complainant. After conviction in the Regional Trial Court, the
accused may be denied bail and thus subjected to incarceration if there is risk
of his absconding.
[3]

[4]

The accused-appellant states that the plea of the electorate which voted him
into office cannot be supplanted by unfounded fears that he might escape
eventual punishment if permitted to perform congressional duties outside his
regular place of confinement.
It will be recalled that when a warrant for accused-appellants arrest was
issued, he fled and evaded capture despite a call from his colleagues in the
House of Representatives for him to attend the sessions and to surrender
voluntarily to the authorities. Ironically, it is now the same body whose call he
initially spurned which accused-appellant is invoking to justify his present
motion. This can not be countenanced because, to reiterate, aside from its
being contrary to well-defined Constitutional restrains, it would be a mockery
of the aims of the States penal system.
Accused-appellant argues that on several occasions, the Regional Trial Court
of Makati granted several motions to temporarily leave his cell at the Makati
City Jail, for official or medical reasons, to wit:
a) to attend hearings of the House Committee on Ethics held at
the Batasan Complex, Quezon City, on the issue of whether to
expel/suspend him from the House of Representatives;

b) to undergo dental examination and treatment at the clinic of his

dentist in Makati City;
c) to undergo a thorough medical check-up at the Makati Medical
Center, Makati City;
d) to register as a voter at his hometown in Dapitan City. In this
case, accused-appellant commuted by chartered plane and
private vehicle.
He also calls attention to various instances, after his transfer at the New
Bilibid Prison in Muntinlupa City, when he was likewise allowed/permitted to
leave the prison premises, to wit:
a) to join "living-out" prisoners on "work-volunteer program" for the
purpose of 1) establishing a mahogany seedling bank and 2)
planting mahogany trees, at the NBP reservation. For this
purpose, he was assigned one guard and allowed to use his own
vehicle and driver in going to and from the project area and his
place of confinement.
b) to continue with his dental treatment at the clinic of his dentist
in Makati City.
c) to be confined at the Makati Medical Center in Makati City for
his heart condition.
There is no showing that the above privileges are peculiar to him or to a
member of Congress. Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the discretion of the authorities or
upon court orders.
What the accused-appellant seeks is not of an emergency nature. Allowing
accused-appellant to attend congressional sessions and committee meetings
for five (5) days or more in a week will virtually make him a free man with all
the privileges appurtenant to his position. Such an aberrant situation not only
elevates accused-appellants status to that of a special class, it also would be

a mockery of the purposes of the correction system. Of particular relevance in

this regard are the following observations of the Court inMartinez v. Morfe:
[5]

The above conclusion reached by this Court is bolstered and

fortified by policy considerations. There is, to be sure, a full
recognition of the necessity to have members of Congress, and
likewise delegates to the Constitutional Convention, entitled to the
utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of
their conscience. Necessarily the utmost latitude in free speech
should be accorded them. When it comes to freedom from arrest,
however, it would amount to the creation of a privileged class,
without justification in reason, if notwithstanding their liability for a
criminal offense, they would be considered immune during their
attendance in Congress and in going to and returning from the
same. There is likely to be no dissent from the proposition that a
legislator or a delegate can perform his functions efficiently and
well, without the need for any transgression of the criminal law.
Should such an unfortunate event come to pass, he is to be
treated like any other citizen considering that there is a strong
public interest in seeing to it that crime should not go unpunished.
To the fear that may be expressed that the prosecuting arm of the
government might unjustly go after legislators belonging to the
minority, it suffices to answer that precisely all the safeguards
thrown around an accused by the Constitution, solicitous of the
rights of an individual, would constitute an obstacle to such an
attempt at abuse of power. The presumption of course is that the
judiciary would remain independent. It is trite to say that in each
and every manifestation of judicial endeavor, such a virtue is of
the essence.
The accused-appellant avers that his constituents in the First District of
Zamboanga del Norte want their voices to be heard and that since he is
treated as bona fide member of the House of Representatives, the latter urges
a co-equal branch of government to respect his mandate. He also claims that
the concept of temporary detention does not necessarily curtail his duty to

discharge his mandate and that he has always complied with the
conditions/restrictions when he is allowed to leave jail.
We remain unpersuaded.
No less than accused-appellant himself admits that like any other member of
the House of Representatives "[h]e is provided with a congressional office
situated at Room N-214, North Wing Building, House of Representatives
Complex, Batasan Hills, Quezon City, manned by a full complement of staff
paid for by Congress. Through [an] inter-department coordination, he is also
provided with an office at the Administration Building, New Bilibid Prison,
Muntinlupa City, where he attends to his constituents." Accused-appellant
further admits that while under detention, he has filed several bills and
resolutions. It also appears that he has been receiving his salaries and other
monetary benefits. Succinctly stated, accused-appellant has been discharging
his mandate as a member of the House of Representative consistent with the
restraints upon one who is presently under detention. Being a detainee,
accused-appellant should not even have been allowed by the prison
authorities at the National Pentientiary to perform these acts.
When the voters of his district elected the accused-appellant to Congress,
they did so with full awareness of the limitations on his freedom of action.
They did so with the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of prison. To give a
more drastic illustration, if voters elect a person with full knowledge that he is
suffering from a terminal illness, they do so knowing that at any time, he may
no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a question of
constitutional equal protection.
The Constitution guarantees: "x x x nor shall any person be denied the equal
protection of laws." This simply means that all persons similarly situated shall
be treated alike both in rights enjoyed and responsibilities imposed. The
organs of government may not show any undue favoritism or hostility to any
person. Neither partiality nor prejudice shall be displayed.
[6]

[7]

Does being an elective official result in a substantial distinction that allows

different treatment? Is being a Congressman a substantial differentiation
which removes the accused-appellant as a prisoner from the same class as all
persons validly confined under law?
The performance of legitimate and even essential duties by public officers has
never been an excuse to free a person validly in prison. The duties imposed
by the "mandate of the people" are multifarious. The accused-appellant
asserts that the duty to legislate ranks highest in the hierarchy of government.
The accused-appellant is only one of 250 members of the House of
Representatives, not to mention the 24 members of the Senate, charged with
the duties of legislation. Congress continues to function well in the physical
absence of one or a few of its members. Depending on the exigency of
Government that has to be addressed, the President or the Supreme Court
can also be deemed the highest for that particular duty. The importance of a
function depends on the need for its exercise. The duty of a mother to nurse
her infant is most compelling under the law of nature. A doctor with unique
skills has the duty to save the lives of those with a particular affliction. An
elective governor has to serve provincial constituents. A police officer must
maintain peace and order. Never has the call of a particular duty lifted a
prisoner into a different classification from those others who are validly
restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise,
insidious discriminations are made in favor of or against groups or types of
individuals.
[8]

The Court cannot validate badges of inequality. The necessities imposed by

public welfare may justify exercise of government authority to regulate even if
thereby certain groups may plausibly assert that their interests are
disregarded.
[9]

We, therefore, find that election to the position of Congressman is not a

reasonable classification in criminal law enforcement. The functions and
duties of the office are not substantial distinctions which lift him from the class
of prisoners interrupted in their freedom and restricted in liberty of movement.

Lawful arrest and confinement are germane to the purposes of the law and
apply to all those belonging to the same class.
[10]

Imprisonment is the restraint of a mans personal liberty; coercion exercised

upon a person to prevent the free exercise of his power of locomotion.
[11]

More explicitly, "imprisonment" in its general sense, is the restraint of ones

liberty. As a punishment, it is restraint by judgment of a court or lawful tribunal,
and is personal to the accused. The term refers to the restraint on the
personal liberty of another; any prevention of his movements from place to
place, or of his free action according to his own pleasure and will.
Imprisonment is the detention of another against his will depriving him of his
power of locomotion and it "[is] something more than mere loss of freedom. It
includes the notion of restraint within limits defined by wall or any exterior
barrier."
[12]

[13]

[14]

[15]

It can be seen from the foregoing that incarceration, by its nature, changes an
individuals status in society. Prison officials have the difficult and often
thankless job of preserving the security in a potentially explosive setting, as
well as of attempting to provide rehabilitation that prepares inmates for reentry into the social mainstream. Necessarily, both these demands require the
curtailment and elimination of certain rights.
[16]

[17]

Premises considered, we are constrained to rule against the accusedappellants claim that re-election to public office gives priority to any other right
or interest, including the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.

18. Paderanga vs. CA 247 SCRA 741

G.R. No. 115407 August 28, 1995

MIGUEL P. PADERANGA, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:
The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R.
SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the
motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this
appeal by certiorari through a petition which raises issues centering mainly on said
petitioner's right to be admitted to bail.
On January 28, 1990, petitioner was belatedly charged in an amended information as a coconspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial
Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family
sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original
information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had
initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel
Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the
alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and
their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried
and eventually convicted. Galarion later escaped from prison. The others have remained at large
up to the present. 2
In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an
amended information dated October 6, 1988, he was charged as a co-accused therein. As
herein petitioner was his former employer and thus knew him well, Roxas engaged the
former's services as counsel in said case. Ironically, in the course of the preliminary
investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he
later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind
the massacre of the Bucag family. 3
Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per
his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor,
designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the
preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a
resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as
a co-conspirator in said criminal case in a second amended information dated October 6,
1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in
G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon.
Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In
an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the
second amended information against him. 4

Under this backdrop, the trial of the base was all set to start with the issuance of an arrest
warrant for petitioner's apprehension but, before it could be served on him, petitioner through
counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set
the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to
State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the
private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded
to hear the application for bail. Four of petitioner's counsel appeared in court but only
Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for
the prosecution. 5
As petitioner was then confined at the Cagayan Capitol College General Hospital due to
"acute costochondritis," his counsel manifested that they were submitting custody over the
person of their client to the local chapter president of the integrated Bar of the Philippines
and that, for purposes of said hearing of his bail application, he considered being in the
custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in
accordance with the directive of the chief of their office, Regional State prosecutor Jesus
Zozobrado, the prosecution was neither supporting nor opposing the application for bail and
that they were submitting the same to the sound discretion of the trail judge. 6
Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving
any further presentation of evidence. On that note and in a resolution dated November 5,
1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following
day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then,
managed to personally appear before the clerk of court of the trial court and posted bail in
the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also
personally appeared and attended all the scheduled court hearings of the case. 7
The subsequent motion for reconsideration of said resolution filed twenty (20) days later on
November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for
admission to bail on the day after the hearing, was denied by the trial court in its omnibus order
dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon
elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus
were the resolution and the order of the trial court granting bail to petitioner annulled on November
24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of
discretion. 8
Respondent court observed in its decision that at the time of petitioner's application for bail,
he was not yet "in the custody of the law," apparently because he filed his motion for
admission to bail before he was actually arrested or had voluntarily surrendered. It further
noted that apart from the circumstance that petitioner was charged with a crime punishable
by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail
was recommended by the prosecution, for which reasons it held that the grant of bail was
doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded
an opportunity to oppose petitioner's application for bail contrary to the requirements of due
process. Hence, this appeal.

Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez
etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively conferred
on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the
custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction
by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the
accused and bring him within the custody of the law."
Petitioner goes on to contend that the evidence on record negates the existence of such
strong evidence as would bar his provisional release on bail. Furthermore, the prosecution,
by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to
oppose the application for bail and whose representation in court in behalf of the prosecution
bound the latter, cannot legally assert any claim to a denial of procedural due process.
Finally, petitioner points out that the special civil action for certiorari was filed in respondent
court after an unjustifiable length of time.
On the undisputed facts , the legal principles applicable and the equities involved in this
case, the Court finds for petitioner.
1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a
person in custody of the law, furnished by him or a bondsman, conditioned upon his
appearing before any court as required under the conditions specified in said Rule. Its main
purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction
and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's
provisional liberty, the same cannot be posted before custody over him has been acquired by the
judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this Court has put it in a
case "it would be incongruous to grant bail to one who is free." 12
The rationale behind the rule is that it discourages and prevents resort to the former
pernicious practice whereby an accused could just send another in his stead to post his bail,
without recognizing the jurisdiction of the court by his personal appearance therein and
compliance with the requirements therefor. 13 Thus, inFeliciano vs. Pasicolan, etc., et
al., 14 where the petitioner who had been charged with kidnapping with murder went into hiding
without surrendering himself, and shortly thereafter filed a motion asking the court to fix the
amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced
that said petitioner was not eligible for admission to bail.
As a paramount requisite then, only those persons who have either been arrested, detained,
or other wise deprived of their freedom will ever have occasion to seek the protective mantle
extended by the right to bail. The person seeking his provisional release under the auspices
of bail need not even wait for a formal complaint or information to be filed against him as it is
available to "all persons" 15 where the offense is bailable. The rule is, of course, subject to the
condition or limitation that the applicant is in the custody of the law. 16
On the other hand, a person is considered to be in the custody of the law (a) when he is
arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by
warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised
Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the

jurisdiction of the court by surrendering to the proper authorities. 17 in this light, the ruling, visa-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained.
In said case, the petitioner who was charged before the Sandiganbayan for violation of the
Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an
"Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time
confined in a hospital recuperating from serious physical injuries which she sustained in a
major vehicular mishap. Consequently, she expressly sought leave "that she be considered
as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the
required trial and other proceedings." On the basis of said ex-parte motion and the peculiar
circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a
cash bail bond for her provisional liberty without need of her personal appearance in view of
her physical incapacity and as a matter of humane consideration.
When the Sandiganbayan later issued a hold departure order against her, she question the
jurisdiction of that court over her person in a recourse before this Court, on the ground that
"she neither been arrested nor has she voluntarily surrendered, aside from the fact that she
has not validly posted bail since she never personally appeared before said court" In
rejecting her arguments, the Court held that she was clearly estopped from assailing the
jurisdiction of the Sandiganbayan for by her own representations in the urgent ex
parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually
posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction
over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the
same cannot be posted before custody of the accused has been acquired by the judicial
authorities either by his arrest or voluntary surrender.
In the case of herein petitioner, it may be conceded that he had indeed filed his motion for
admission to bail before he was actually and physically placed under arrest. He may,
however, at that point and in the factual ambience therefore, be considered as being
constructively and legally under custody. Thus in the likewise peculiar circumstance which
attended the filing of his bail application with the trail court, for purposes of the hearing
thereof he should be deemed to have voluntarily submitted his person to the custody of the
law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as
prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his
submission to the custody of the person making the arrest. 19 The latter mode may be
exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to
quarters" or restricted to the military camp area.
It should be stressed herein that petitioner, through his counsel, emphatically made it known
to the prosecution and to the trail court during the hearing for bail that he could not
personally appear as he was then confined at the nearby Cagayan Capitol College General
Hospital for acute costochondritis, and could not then obtain medical clearance to leave the
hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the
specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served
upon him. Certainly, it would have taken but the slightest effort to place petitioner in the
physical custody of the authorities, since he was then incapacitated and under medication in

a hospital bed just over a kilometer away, by simply ordering his confinement or placing him
under guard.
The undeniable fact is that petitioner was by then in the constructive custody of the law.
Apparently, both the trial court and the prosecutors agreed on that point since they never
attempted to have him physically restrained. Through his lawyers, he expressly submitted to
physical and legal control over his person, firstly, by filing the application for bail with the trail
court; secondly, by furnishing true information of his actual whereabouts; and, more
importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it
came to his knowledge that a warrant for his arrest had been issued, petitioner never made
any attempt or evinced any intent to evade the clutches of the law or concealed his
whereabouts from the authorities since the day he was charged in court, up to the
submission application for bail, and until the day of the hearing thereof.
At the hearing, his counsel offered proof of his actual confinement at the hospital on account
of an acute ailment, which facts were not at all contested as they were easily verifiable. And,
as a manifestation of his good faith and of his actual recognition of the authority of trial court,
petitioner's counsel readily informed the court that they were surrendering custody of
petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental
Chapter. 20 In other words, the motion for admission to bail was filed not for the purpose or in the
manner of the former practice which the law proscribes for the being derogatory of the authority
and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or
strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the
application therefore be denied.
2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees
shall be allowed bail, except only those charged with offenses punishable by reclusion
perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as
amended, now provides that all persons in custody shall, before conviction by a regional trial court of
an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a
matter of right. The right to bail, which may be waived considering its personal nature 21 and which, to
repeat, arises from the time one is placed in the custody of the law, springs from the presumption of
innocence accorded every accused upon whom should not be inflicted incarceration at the outset since
after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. 22
Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an
accused is entitled to be released on bail as a matter of right, the present exceptions thereto being
the instances where the accused is charged with a capital offense or an offense punishable
by reclusion perpetua or life imprisonment 23 and the evidence of guilt is strong. Under said general rule,
upon proper application for admission to bail, the court having custody of the accused should, as a matter
of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in
accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes
a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing,
mandatory in nature and which should be summary or otherwise in the discretion of the court, 24 is
required with the participation of both the defense and a duly notified representative of the prosecution,
this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the

applicant. 25 Of course, the burden of proof is on the prosecution to show that the evidence meets the
required quantum. 26

Where such a hearing is set upon proper motion or petition, the prosecution must be give an
opportunity to present, within a reasonable time, all the evidence that it may want to introduce before
the court may resolve the application, since it is equally entitled as the accused to due process. 27 If
the prosecution is denied this opportunity, there would be a denial of procedural due process, as a
consequence of which the court's order in respect of the motion or petition is void. 28 At the hearing, the
petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own
evidence in rebuttal. 29 When, eventually, the court issues an order either granting or refusing bail, the
same should contain a summary of the evidence for the prosecution, followed by its conclusion as to
whether or not the evidence of guilt is strong. 30 The court, though, cannot rely on mere affidavits or
recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are
insufficient to establish the quantum of evidence that the law requires. 31
In this appeal, the prosecution assails what it considers to be a violation of procedural due process
when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's
Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is
claimed to be the sole government prosecutor expressly authorized to handle the case and who
received his copy of the motion only on the day after the hearing had been conducted. Accordingly,
the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of
any further evidence in opposition to the application for bail and to submit the matter to the sound
discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable
time" to oppose that application for bail.
We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the
collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the
basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through
radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on
the same date. This authorization, which was to be continuing until and unless it was expressly
withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of
Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of
Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their
appearance as collaborating government prosecutors in said criminal case. 32 It was in fact by virtue of
this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their
appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence, on the strength of
said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office,
through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5,
1992.
Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the
case, he nonetheless was explicitly instructed about the position of the Regional State
Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of
the motion on the very day when it was sent, that is, October 28, 1992, duly instructed
Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor
opposing the application for bail and that they were submitting the matter to its sound
discretion. Obviously, what this meant was that the prosecution, at that particular posture of

the case, was waiving the presentation of any countervailing evidence. When the court a
quo sought to ascertain whether or not that was the real import of the submission by
Prosecutor Abejo, the latter readily answered in the affirmative.
The following exchanges bear this out:
PROSECUTOR ERLINDO ABEJO:
I was informed to appear in this case just now Your Honor.
COURT:
Where is your Chief of Office? Your office received a copy of the
motion as early as October 28. There is an element of urgency here.
PROSECUTOR ABEJO:
I am not aware of that, Your Honor, I was only informed just now. The
one assigned here is State Prosecutor Perseverando Arena, Jr. who
unfortunately is in the hospital attending to his sick son. I do not know
about this but before I came I received an instruction from our Chief
to relay to this court the stand of the office regarding the motion to
admit bail. That office is neither supporting nor opposing it and we are
submitting to the sound discretion of the Honorable Court.
COURT:
Place that manifestation on record. For the record, Fiscal Abejo,
would you like to formally enter your appearance in this matter?
PROSECUTOR ABEJO:
Yes, Your Honor. For the government, the Regional State
Prosecutor's Office represented by State Prosecutor Erlindo Abejo.
COURT:
By that manifestation do you want the Court to understand that in
effect, at least, the prosecution is dispensing with the presentation of
evidence to show that the guilt of the accused is strong, the
denial . . .
PROSECUTOR ABEJO:
I am amenable to that manifestation, Your Honor.

COURT:
Final inquiry. Is the Prosecution willing to submit the incident covered
by this particular motion for resolution by this court?
PROSECUTOR ABEJO:
Yes, Your Honor.
COURT:
Without presenting any further evidence?
PROSECUTOR ABEJO:
Yes, Your Honor. 34
It is further evident from the foregoing that the prosecution, on the instructions of Regional
State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this
should be so notwithstanding the statement that they were "neither supporting nor opposing"
the motion. What is of significance is the manifestation that the prosecution was "submitting
(the motion) to the sound discretion of the Honorable Court." By that, it could not be any
clearer. The prosecution was dispensing with the introduction of evidenceen contra and this it
did at the proper forum and stage of the proceedings, that is, during the mandatory hearing
for bail and after the trial court had fully satisfied itself that such was the position of the
prosecution.
3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial court has
reasons to believe that the prosecutor's attitude of not opposing the application for bail is not
justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the
interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to
determine whether or not it is strong. And, in the very recent administrative matter Re:First
Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department
of Justice;Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison, 36 the
Court, citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to
the motion of the accused, the trial court should nevertheless set the application for hearing and
from there diligently ascertain from the prosecution whether the latter is really not contesting the
bail application.
No irregularity, in the context of procedural due process, could therefore be attributed to the
trial court here as regards its order granting bail to petitioner. A review of the transcript of the
stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of
March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As
summarized in its aforementioned order, the lower court exhausted all means to convince
itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the
omnibus order contained the requisite summary of the evidence of both the prosecution and
the defense, and only after sifting through them did the court conclude that petitioner could

be provisionally released on bail. Parenthetically, there is no showing that, since then and up
to the present, petitioner has ever committed any violation of the conditions of his bail.
As to the contention that the prosecutor was not given the opportunity to present its evidence
within a reasonable period of time, we hold otherwise. The records indicate that the Regional
State Prosecutor's Office duly received its copy of the application for bail on the very same
day that the it was filed with the trial court on October 28, 1992. Counted from said date up
to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week
to muster such evidence as it would have wanted to adduce in that hearing in opposition to
the motion. Certainly, under the circumstances, that period was more than reasonable. The
fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992
is beside the point for, as already established, the Office of the Regional State Prosecutor
was authorized to appear for the People.
4. What finally militates against the cause of the prosecutor is the indubitably unreasonable
period of time that elapsed before it questioned before the respondent court the resolution
and the omnibus order of the trial court through a special civil action for certiorari. The
Solicitor General submits that the delay of more than six (6) months, or one hundred eightyfour (184) days to be exact, was reasonable due to the attendant difficulties which
characterized the prosecution of the criminal case against petitioner. But then,
the certiorariproceeding was initiated before the respondent court long after trial on the
merits of the case had ensued in the court below with the active participation of prosecution
lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the
special civil action for certiorari should not be instituted beyond a period of the three
months, 38 the same to be reckoned by taking into account the duration of time that had expired
from the commission of the acts complained to annul the same. 39
ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233,
promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the
omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as
said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said
judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of
the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED.
SO ORDERED.

19. Trillanes IV vs. Pimentel 556 SCRA 471

G.R. No. 179817

June 27, 2008

ANTONIO F. TRILLANES IV, petitioner,

vs.
HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL
COURT- BRANCH 148, MAKATI CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I.
CALUNSAG, MGEN. BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBEA, respondents.

DECISION
CARPIO MORALES, J.:
At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior
officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments
in Makati City and publicly demanded the resignation of the President and key national officials.
Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General
Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the
rebellion.1 A series of negotiations quelled the teeming tension and eventually resolved the impasse
with the surrender of the militant soldiers that evening.
In the aftermath of this eventful episode dubbed as the "Oakwood Incident," petitioner Antonio F.
Trillanes IV was charged, along with his comrades, with coup detat defined under Article 134-A of
the Revised Penal Code before the Regional Trial Court (RTC) of Makati. The case was docketed as
Criminal Case No. 03-2784, "People v. Capt. Milo D. Maestrecampo, et al."
Close to four years later, petitioner, who has remained in detention,2 threw his hat in the political
arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007. 3
Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati
City, Branch 148, an "Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions
and Related Requests"4 (Omnibus Motion). Among his requests were:
(a) To be allowed to go to the Senate to attend all official functions of the Senate (whether at
the Senate or elsewhere) particularly when the Senate is in session, and to attend the
regular and plenary sessions of the Senate, committee hearings, committee meetings,
consultations, investigations and hearings in aid of legislation, caucuses, staff meetings, etc.,
which are normally held at the Senate of the Philippines located at the GSIS Financial
Center, Pasay City (usually from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.);
(b) To be allowed to set up a working area at his place of detention at the Marine Brig,
Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop computer and
the appropriate communications equipment (i.e., a telephone line and internet access) in
order that he may be able to work there when there are no sessions, meetings or hearings at
the Senate or when the Senate is not in session. The costs of setting up the said working
area and the related equipment and utility costs can be charged against the
budget/allocation of the Office of the accused from the Senate;
(c) To be allowed to receive members of his staff at the said working area at his place of
detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at
reasonable times of the day particularly during working days for purposes of meetings,
briefings, consultations and/or coordination, so that the latter may be able to assists (sic) him
in the performance and discharge of his duties as a Senator of the Republic;

(d) To be allowed to give interviews and to air his comments, reactions and/or opinions to the
press or the media regarding the important issues affecting the country and the public while
at the Senate or elsewhere in the performance of his duties as Senator to help shape public
policy and in the light of the important role of the Senate in maintaining the system of checks
and balance between the three (3) co-equal branches of Government;
(e) With prior notice to the Honorable Court and to the accused and his custodians, to be
allowed to receive, on Tuesdays and Fridays, reporters and other members of the media who
may wish to interview him and/or to get his comments, reactions and/or opinion at his place
of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City,
particularly when there are no sessions, meetings or hearings at the Senate or when the
Senate is not in session; and
(f) To be allowed to attend the organizational meeting and election of officers of the Senate
and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the
Senate of the Philippines located at the GSIS Financial Center, Pasay City.5
By Order of July 25, 2007,6 the trial court denied all the requests in the Omnibus Motion. Petitioner
moved for reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim
them down to three.7 The trial court just the same denied the motion by Order of September 18,
2007.8
Hence, the present petition for certiorari to set aside the two Orders of the trial court, and
for prohibition andmandamus to (i) enjoin respondents from banning the Senate staff, resource
persons and guests from meeting with him or transacting business with him in his capacity as
Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and
guests and permit him to attend all sessions and official functions of the Senate. Petitioner
preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to
convene his staff, resource persons and guests9 at the Marine Brig.
Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen.
Hermogenes Esperon (Esperon); Philippine Navys Flag Officer-in-Command, Vice Admiral Rogelio
Calunsag; Philippine Marines Commandant, Major Gen. Benjamin Dolorfino; and Marine Barracks
Manila Commanding Officer, Lt. Col. Luciardo Obea (Obea).
Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30,
2007, been in the custody of the Philippine National Police (PNP) Custodial Center following the
foiled take-over of the Manila Peninsula Hotel10 the day before or on November 29, 2007.
Such change in circumstances thus dictates the discontinuation of the action as against the abovenamed military officers-respondents. The issues raised in relation to them had ceased to present a
justiciable controversy, so that a determination thereof would be without practical value and use.
Meanwhile, against those not made parties to the case, petitioner cannot ask for reliefs from this
Court.11 Petitioner did not, by way of substitution, implead the police officers currently exercising
custodial responsibility over him; and he did not satisfactorily show that they have adopted or
continued the assailed actions of the former custodians.12

Petitioner reiterates the following grounds which mirror those previously raised in his Motion for
Reconsideration filed with the trial court:
I.
THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY
INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS:
A.
UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY
CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE,
ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL
ENJOYS THE PRESUMPTION OF INNOCENCE;
B.
THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2)
COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF
LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN
ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP DETAT",
A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE;
C.
THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO
BEING ARRESTED. THE ACCUSED/ PETITIONER VOLUNTARILY
SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE
RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;
II.
GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE
BRIGS COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE
SESSIONS;
III.
ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR
SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR OF THE
REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO WORK
AND SERVE HIS MANDATE AS A SENATOR;
- AND IV.

MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT

OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS IN THE CASE OF
FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER ARMM GOV. NUR
MISUARI.13
The petition is bereft of merit.
In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out
that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending
appeal, when he filed a motion similar to petitioners Omnibus Motion, whereas he (petitioner) is
a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the
presumption of innocence is still in his favor.
Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two
counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup
detat which is regarded as a "political offense."
Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate
grievances against the rampant and institutionalized practice of graft and corruption in the AFP.
In sum, petitioners first ground posits that there is a world of difference between his case and that of
Jalosjos respecting the type of offense involved, the stage of filing of the motion, and other
circumstances which demonstrate the inapplicability of Jalosjos.14
A plain reading of. Jalosjos suggests otherwise, however.
The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election
to Congress is not a reasonable classification in criminal law enforcement as the functions and
duties of the office are not substantial distinctions which lift one from the class of prisoners
interrupted in their freedom and restricted in liberty of movement. 15
It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the
administration of justice. No less than the Constitution provides:
All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required.16 (Underscoring supplied)
The Rules also state that no person charged with a capital offense,17 or an offense punishable
by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal action.18
That the cited provisions apply equally to rape and coup detat cases, both being punishable
by reclusion perpetua,19 is beyond cavil. Within the class of offenses covered by the stated range of

imposable penalties, there is clearly no distinction as to the political complexion of or moral turpitude
involved in the crime charged.
In the present case, it is uncontroverted that petitioners application for bail and for release on
recognizance was denied.20 The determination that the evidence of guilt is strong, whether
ascertained in a hearing of an application for bail21 or imported from a trial courts judgment of
conviction,22 justifies the detention of an accused as a valid curtailment of his right to provisional
liberty. This accentuates the proviso that the denial of the right to bail in such cases is "regardless of
the stage of the criminal action." Such justification for confinement with its underlying rationale of
public self-defense23 applies equally to detention prisoners like petitioner or convicted prisonersappellants like Jalosjos.
As the Court observed in Alejano v. Cabuay,24 it is impractical to draw a line between convicted
prisoners and pre-trial detainees for the purpose of maintaining jail security; and while pre-trial
detainees do not forfeit their constitutional rights upon confinement, the fact of their detention makes
their rights more limited than those of the public.
The Court was more emphatic in People v. Hon. Maceda:25
As a matter of law, when a person indicted for an offense is arrested, he is deemed placed
under the custody of the law. He is placed in actual restraint of liberty in jail so that he may
be bound to answer for the commission of the offense. He must be detained in jail during the
pendency of the case against him, unless he is authorized by the court to be released on bail
or on recognizance. Let it be stressed that all prisoners whether under preventive detention
or serving final sentence can not practice their profession nor engage in any business or
occupation, or hold office, elective or appointive, while in detention. This is a necessary
consequence of arrest and detention.26 (Underscoring supplied)
These inherent limitations, however, must be taken into account only to the extent that confinement
restrains the power of locomotion or actual physical movement. It bears noting that in Jalosjos,
which was decided en banc one month after Maceda, the Court recognized that the accused could
somehow accomplish legislative results.27
The trial court thus correctly concluded that the presumption of innocence does not carry with it the
full enjoyment of civil and political rights.
Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of
innocence during the period material to the resolution of their respective motions. The Court
in Jalosjos did not mention that the presumption of innocence no longer operates in favor of the
accused pending the review on appeal of the judgment of conviction. The rule stands that until a
promulgation of final conviction is made, the constitutional mandate ofpresumption of innocence
prevails.28
In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his
agreeing to a consensus with the prosecution that media access to him should cease after his
proclamation by the Commission on Elections.29

Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk
since he voluntarily surrendered to the proper authorities and such can be proven by the numerous
times he was allowed to travel outside his place of detention.
Subsequent events reveal the contrary, however. The assailed Orders augured well when on
November 29, 2007 petitioner went past security detail for some reason and proceeded from the
courtroom to a posh hotel to issue certain statements. The account, dubbed this time as the "Manila
Pen Incident,"30 proves that petitioners argument bites the dust. The risk that he would escape
ceased to be neither remote nor nil as, in fact, the cause for foreboding became real.
Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the
reasonable amount of bail and in canceling a discretionary grant of bail. 31 In cases involving nonbailable offenses, what is controlling is the determination of whether the evidence of guilt is strong.
Once it is established that it is so, bail shall be denied as it is neither a matter of right nor of
discretion.32
Petitioner cannot find solace in Montano v. Ocampo33 to buttress his plea for leeway because unlike
petitioner, the therein petitioner, then Senator Justiniano Montano, who was charged with multiple
murder and multiple frustrated murder,34 was able to rebut the strong evidence for the prosecution.
Notatu dignum is this Courts pronouncement therein that "if denial of bail is authorized in capital
cases, it is only on the theory that the proof being strong, the defendant would flee, if he has the
opportunity, rather than face the verdict of the jury."35 At the time Montano was indicted, when only
capital offenses were non-bailable where evidence of guilt is strong,36 the Court noted the obvious
reason that "one who faces a probable death sentence has a particularly strong temptation to
flee."37Petitioners petition for bail having earlier been denied, he cannot rely on Montano to reiterate
his requests which are akin to bailing him out.
Second, petitioner posits that, contrary to the trial courts findings, Esperon did not overrule Obeas
recommendation to allow him to attend Senate sessions. Petitioner cites the Comment 38 of Obea
that he interposed no objection to such request but recommended that he be transported by the
Senate Sergeant-at-Arms with adequate Senate security. And petitioner faults the trial court for
deeming that Esperon, despite professing non-obstruction to the performance of petitioners duties,
flatly rejected all his requests, when what Esperon only disallowed was the setting up of a political
office inside a military installation owing to AFPs apolitical nature.39
The effective management of the detention facility has been recognized as a valid objective that may
justify the imposition of conditions and restrictions of pre-trial detention. 40 The officer with custodial
responsibility over a detainee may undertake such reasonable measures as may be necessary to
secure the safety and prevent the escape of the detainee.41 Nevertheless, while the comments of the
detention officers provide guidance on security concerns, they are not binding on the trial court in the
same manner that pleadings are not impositions upon a court.
Third, petitioner posits that his election provides the legal justification to allow him to serve his
mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that
denying his Omnibus Motion is tantamount to removing him from office, depriving the people of

proper representation, denying the peoples will, repudiating the peoples choice, and overruling the
mandate of the people.
Petitioners contention hinges on the doctrine in administrative law that "a public official can not be
removed foradministrative misconduct committed during a prior term, since his re-election to office
operates as a condonation of the officers previous misconduct to the extent of cutting off the right to
remove him therefor."42
The assertion is unavailing. The case against petitioner is not administrative in nature. And there is
no "prior term" to speak of. In a plethora of cases,43 the Court categorically held that the doctrine of
condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does
not obliterate a criminal charge. Petitioners electoral victory only signifies pertinently that when the
voters elected him to the Senate, "they did so with full awareness of the limitations on his freedom of
action [and] x x x with the knowledge that he could achieve only such legislative results which he
could accomplish within the confines of prison."44
In once more debunking the disenfranchisement argument, 45 it is opportune to wipe out the lingering
misimpression that the call of duty conferred by the voice of the people is louder than the litany of
lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord
may be harmonized by the overarching tenet that the mandate of the people yields to the
Constitution which the people themselves ordained to govern all under the rule of law.
The performance of legitimate and even essential duties by public officers has never been an
excuse to free a person validly in prison. The duties imposed by the "mandate of the people"
are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the
hierarchy of government. The accused-appellant is only one of 250 members of the House of
Representatives, not to mention the 24 members of the Senate, charged with the duties of
legislation. Congress continues to function well in the physical absence of one or a few of its
members. x x x Never has the call of a particular duty lifted a prisoner into a different
classification from those others who are validly restrained by law.46 (Underscoring supplied)
Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who
have also been charged with non-bailable offenses, like former President Joseph Estrada and
former Governor Nur Misuari who were allowed to attend "social functions." Finding no rhyme and
reason in the denial of the more serious request to perform the duties of a Senator, petitioner harps
on an alleged violation of the equal protection clause.
In arguing against maintaining double standards in the treatment of detention prisoners, petitioner
expressly admits that he intentionally did not seek preferential treatment in the form of being placed
under Senate custody or house arrest,47 yet he at the same time, gripes about the granting of house
arrest to others.
Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the
discretion of the authorities or upon court orders. 48 That this discretion was gravely abused, petitioner
failed to establish. In fact, the trial court previously allowed petitioner to register as a voter in
December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be

proclaimed as senator-elect, and take his oath of office49 on June 29, 2007. In a seeming attempt to
bind or twist the hands of the trial court lest it be accused of taking a complete turnaround,50 petitioner largely banks on these prior grants to him and insists on unending concessions
and blanket authorizations.
Petitioners position fails. On the generality and permanence of his requests alone, petitioners case
fails to compare with the species of allowable leaves. Jaloslos succinctly expounds:
x x x Allowing accused-appellant to attend congressional sessions and committee meetings
for five (5) days or more in a week will virtually make him a free man with all the privileges
appurtenant to his position. Such an aberrant situation not only elevates accused-appellants
status to that of a special class, it also would be a mockery of the purposes of the correction
system.51
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

20. Lavides vs. CA GR No. 129670, February 1, 2000

[G.R. No. 129670. February 1, 2000]

MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS;
HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC,
Quezon City; and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
MENDOZA, J.:
Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A.
No. 7610 (an act providing for stronger deterrence and special protection against child
abuse, exploitation and discrimination, providing penalties for its violation, and other
purposes). His arrest was made without a warrant as a result of an entrapment
conducted by the police. It appears that on April 3, 1997, the parents of complainant
Lorelie San Miguel reported to the police that their daughter, then 16 years old, had
been contacted by petitioner for an assignation that night at petitioners room at the
Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time
the police received reports of petitioners activities. An entrapment operation was
therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police
knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was

staying. When petitioner opened the door, the police saw him with Lorelie, who was
wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the
sworn statement of complainant and the affidavits of the arresting officers, which
were submitted at the inquest, an information for violation of Art. III, 5(b) of R.A.
No. 7610 was filed on April 7, 1997 against petitioner in the Regional Trial Court,
Quezon City, where it was docketed as Criminal Case No. Q-97-70550. Edp
On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial
Determination of Probable Cause; (2) For the Immediate Release of the Accused
Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of
Adverse Resolution of the A
bove Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law
on Which He is Charged."
[1]

On April 29, 1997, nine more informations for child abuse were filed against
petitioner by the same complainant, Lorelie San Miguel, and by three other minor
children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn Talingting. The cases
were docketed as Criminal Case Nos. Q-97-70866 to Q-97-70874. In all the cases, it
was alleged that, on various dates mentioned in the informations, petitioner had sexual
intercourse with complainants who had been "exploited in prostitution and . . . given
money [by petitioner] as payment for the said [acts of] sexual intercourse."
No bail was recommended. Nonetheless, petitioner filed separate applications for bail
in the nine cases.
On May 16, 1997, the trial court issued an order resolving petitioners Omnibus
Motion, as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:
1. In Crim. Case No. Q-97-70550, there is probable cause to hold the
accused under detention, his arrest having been made in accordance with
the Rules. He must therefore remain under detention until further order
of this Court;
2. The accused is entitled to bail in all the above-entitled case. He is
hereby granted the right to post bail in the amount of P80,000.00 for

each case or a total of P800,000.00 for all the cases under the following
conditions:
a) The accused shall not be entitled to a waiver of appearance during the
trial of these cases. He shall and must always be present at the hearings
of these cases;
b) In the event that he shall not be able to do so, his bail bonds shall be
automatically cancelled and forfeited, warrants for his arrest shall be
immediately issued and the cases shall proceed to trial in absentia;
c) The hold-departure Order of this Court dated April 10, 1997 stands;
and
d) Approval of the bail bonds shall be made only after the arraignment to
enable this Court to immediately acquire jurisdiction over the accused;
3. Let these cases be set for arraignment on May 23, 1997 at 8:30
oclock in the morning.
[2]

On May 20, 1997, petitioner filed a motion to quash the informations against him,
except those filed in Criminal Case No. Q-97-70550 or Q-97-70866. Pending
resolution of his motion, he asked the trial court to suspend the arraignment scheduled
on May 23, 1997. Then on May 22, 1997, he filed a motion in which he prayed that
the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be
done prior to his arraignment. Misedp
[3]

[4]

On May 23, 1997, the trial court, in separate orders, denied petitioners motions to
reduce bail bonds, to quash the informations, and to suspend arraignment.
Accordingly, petitioner was arraigned during which he pleaded not guilty to the
charges against him and then ordered him released upon posting bail bonds in the total
amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the
"hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7,
1997.
On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in
the Court of Appeals, assailing the trial courts order, dated May 16, 1997, and its two

orders, dated May 23, 1997, denying his motion to quash and maintaining the
conditions set forth in its order of May 16, 1997, respectively.
While the case was pending in the Court of Appeals, two more informations were
filed against petitioner, bringing the total number of cases against him to 12, which
were all consolidated.
On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion
of which reads:
WHEREFORE, considering that the conditions imposed under Nos. 2-a)
and 2-b), of the May 23 (should be May 16), 1997 Order, are separable,
and would not affect the cash bond which petitioner posted for his
provisional liberty, with the sole modification that those aforesaid
conditions are hereby ANNULLED and SET ASIDE, the May 16, May
23 and May 23, 1997 Orders are MAINTAINED in all other respects.
[5]

[6]

Misoedp

The appellate court invalidated the first two conditions imposed in the May 16, 1997
order for the grant of bail to petitioner but ruled that the issue concerning the validity
of the condition making arraignment a prerequisite for the approval of petitioners bail
bonds to be moot and academic. It noted "that petitioner has posted the cash bonds;
that when arraigned, represented by lawyers, he pleaded not guilty to each offense;
and that he has already been released from detention." The Court of Appeals thought
that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III,
14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified
and his failure to appear is unjustifiable."
With respect to the denial of petitioners motion to quash the informations against
him, the appellate court held that petitioner could not question the same in a petition
for certiorari before it, but what he must do was to go to trial and to reiterate the
grounds of his motion to quash on appeal should the decision be adverse to him.
Hence this petition. Petitioner contends that the Court of Appeals erred __
[7]

1.......In ruling that the condition imposed by respondent Judge that the
approval of petitioners bail bonds "shall be made only after his

arraignment" is of no moment and has been rendered moot and academic

by the fact that he had already posted the bail bonds and had pleaded not
guilty to all the offenses;
2.......In not resolving the submission that the arraignment was void not
only because it was made under compelling circumstance which left
petitioner no option to question the respondent Judges arbitrary action
but also because it emanated from a void Order;
3.......In ruling that the denial of petitioners motion to quash may not be
impugned in a petition for certiorari; and
4.......In not resolving the legal issue of whether or not petitioner may be
validly charged for violation of Section 5(b) of RA No. 7610 under
several informations corresponding to the number of alleged acts of child
abuse allegedly committed against each private complainant by the
petitioner.
We will deal with each of these contentions although not in the order in which they
are stated by petitioner.
First. As already stated, the trial courts order, dated May 16, 1997, imposed four
conditions for the grant of bail to petitioner:
a) The accused shall not be entitled to a waiver of appearance during the
trial of these cases. He shall and must always be present at the hearings
of these cases;
b) In the event that he shall not be able to do so, his bail bonds shall be
automatically cancelled and forfeited, warrants for his arrest shall be
immediately issued and the cases shall proceed to trial in absentia;
c) The hold-departure Order of this Court dated April 10, 1997 stands;
and Edpmis
d) Approval of the bail bonds shall be made only after the arraignment to
enable this Court to immediately acquire jurisdiction over the accused;

The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon
the validity of condition (d) on the ground that the issue had become moot and
academic. Petitioner takes issue with the Court of Appeals with respect to its treatment
of condition (d) of the May 16, 1997 order of the trial court which makes petitioners
arraignment a prerequisite to the approval of his bail bonds. His contention is that this
condition is void and that his arraignment was also invalid because it was held
pursuant to such invalid condition.
We agree with petitioner that the appellate court should have determined the validity
of the conditions imposed in the trial courts order of May 16, 1997 for the grant of
bail because petitioners contention is that his arraignment was held in pursuance of
these conditions for bail.
In requiring that petitioner be first arraigned before he could be granted bail, the trial
court apprehended that if petitioner were released on bail he could, by being absent,
prevent his early arraignment and thereby delay his trial until the complainants got
tired and lost interest in their cases. Hence, to ensure his presence at the arraignment,
approval of petitioners bail bonds should be deferred until he could be arraigned.
After that, even if petitioner does not appear, trial can proceed as long as he is notified
of the date of hearing and his failure to appear is unjustified, since under Art. III,
14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory
of the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner
on his arraignment.
This theory is mistaken. In the first place, as the trial court itself acknowledged, in
cases where it is authorized, bail should be granted before arraignment, otherwise the
accused may be precluded from filing a motion to quash. For if the information is
quashed and the case is dismissed, there would then be no need for the arraignment of
the accused. In the second place, the trial court could ensure the presence of petitioner
at the arraignment precisely by granting bail and ordering his presence at any stage of
the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal
Procedure, one of the conditions of bail is that "the accused shall appear before the
proper court whenever so required by the court or these Rules," while under Rule 116,
1(b) the presence of the accused at the arraignment is required.
On the other hand, to condition the grant of bail to an accused on his arraignment
would be to place him in a position where he has to choose between (1) filing a

motion to quash and thus delay his release on bail because until his motion to quash
can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a
motion to quash so that he can be arraigned at once and thereafter be released on bail.
These scenarios certainly undermine the accuseds constitutional right not to be put on
trial except upon valid complaint or information sufficient to charge him with a crime
and his right to bail.
[8]

It is the condition in the May 16, 1997 order of the trial court that "approval of the bail
bonds shall be made only after arraignment," which the Court of Appeals should
instead have declared void. The condition imposed in the trial courts order of May
16, 1997 that the accused cannot waive his appearance at the trial but that he must be
present at the hearings of the case is valid and is in accordance with Rule 114. For
another condition of bail under Rule 114, 2(c) is that "The failure of the accused to
appear at the trial without justification despite due notice to him or his bondsman shall
be deemed an express waiver of his right to be present on the date specified in the
notice. In such case, trial shall proceed in absentia." Jjsc
Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to
be absent at the trial but not at certain stages of the proceedings, to wit: (a) at
arraignment and plea, whether of innocence or of guilt, (b) during trial whenever
necessary for identification purposes, and (c) at the promulgation of sentence, unless
it is for a light offense, in which case the accused may appear by counsel or
representative. At such stages of the proceedings, his presence is required and cannot
be waived. As pointed out in Borja v. Mendoza, in an opinion by Justice, later Chief
Justice, Enrique Fernando, there can be no trial in absentia unless the accused has
been arraigned.
[9]

[10]

[11]

[12]

Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by
absenting himself from the arraignment. But once he is arraigned, trial could proceed
even in his absence. So it thought that to ensure petitioners presence at the
arraignment, petitioner should be denied bail in the meantime. The fly in the ointment,
however, is that such court strategy violates petitioners constitutional rights.
Second. Although this condition is invalid, it does not follow that the arraignment of
petitioner on May 23, 1997 was also invalid. Contrary to petitioners contention, the
arraignment did not emanate from the invalid condition that "approval of the bail
bonds shall be made only after the arraignment." Even without such a condition, the

arraignment of petitioner could not be omitted. In sum, although the condition for the
grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings
against him are valid.
Third. Petitioner concedes that the rule is that the remedy of an accused whose motion
to quash is denied is not to file a petition for certiorari but to proceed to trial without
prejudice to his right to reiterate the grounds invoked in his motion to quash during
trial on the merits or on appeal if an adverse judgment is rendered against him.
However, he argues that this case should be treated as an exception. He contends that
the Court of Appeals should not have evaded the issue of whether he should be
charged under several informations corresponding to the number of acts of child abuse
allegedly committed by him against each of the complainants.
In Tano v. Salvador, the Court, while holding that certiorari will not lie from a denial
of a motion to quash, nevertheless recognized that there may be cases where there are
special circumstances clearly demonstrating the inadequacy of an appeal. In such
cases, the accused may resort to the appellate court to raise the issue decided against
him. This is such a case. Whether petitioner is liable for just one crime regardless of
the number of sexual acts allegedly committed by him and the number of children
with whom he had sexual intercourse, or whether each act of intercourse constitutes
one crime is a question that bears on the presentation of evidence by either party. It is
important to petitioner as well as to the prosecution how many crimes there are. For
instance, if there is only one offense of sexual abuse regardless of the number of
children involved, it will not matter much to the prosecution whether it is able to
present only one of the complainants. On the other hand, if each act of sexual
intercourse with a child constitutes a separate offense, it will matter whether the other
children are presented during the trial. Scjj
[13]

The issue then should have been decided by the Court of Appeals. However, instead
of remanding this case to the appellate court for a determination of this issue, we will
decide the issue now so that the trial in the court below can proceed without further
delay.
Petitioners contention is that the 12 informations filed against him allege only one
offense of child abuse, regardless of the number of alleged victims (four) and the
number of acts of sexual intercourse committed with them (twelve). He argues that the
act of sexual intercourse is only a means of committing the offense so that the acts of

sexual intercourse/lasciviousness with minors attributed to him should not be subject

of separate informations. He cites the affidavits of the alleged victims which show that
their involvement with him constitutes an "unbroken chain of events," i.e., the first
victim was the one who introduced the second to petitioner and so on. Petitioner says
that child abuse is similar to the crime of large-scale illegal recruitment where there is
only a single offense regardless of the number of workers illegally recruited on
different occasions. In the alternative, he contends that, at the most, only four
informations, corresponding to the number of alleged child victims, can be filed
against him.
Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides:
Sec. 5 Child Prostitution and Other Sexual Abuse. __ Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct, are deemed
to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
....
(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subjected to other sexual abuse.
The elements of the offense are as follows: (1) the accused commits the act of sexual
intercourse or lascivious conduct; (2) that said act is performed with a child exploited
in prostitution or subjected to other sexual abuse; and (3) the child, whether male or
female, is or is deemed under 18 years of age. Exploitation in prostitution or other
sexual abuse occurs when the child indulges in sexual intercourse or lascivious
conduct (a) for money, profit, or any other consideration; or (b) under the coercion or
influence of any adult, syndicate, or group.
[14]

Each incident of sexual intercourse and lascivious act with a child under the
circumstances mentioned in Art. III, 5 of R.A. No. 7160 is thus a separate and
distinct offense. The offense is similar to rape or act of lasciviousness under the
Revised Penal Code in which each act of rape or lascivious conduct should be the

subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of

R.A. No. 7160, which provides:
[t]hat when the victim is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, paragraph 3, for rape and Article
336 of Act No. 3815, as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period;
WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one
is RENDERED declaring the orders dated May 16, 1997 and May 23, 1997 of the
Regional Trial Court, Branch 107, Quezon City to be valid, with the exception of
condition (d) in the second paragraph of the order of May 16, 1997 (making
arraignment a prerequisite to the grant of bail to petitioner), which is hereby declared
void.
SO ORDERED. Sjcj