98-0200, thru its Graft Investigation

Officer Rachelle M. Ladrera-Tagud, issued a

resolution (hereinafter referred to as
OFFICE OF THE OMBUDSMAN,
G.R. No.
145938
theLadrera
resolution)
finding
the
Petitioner,
existence of sufficient evidence to warrant
Present:the criminal prosecution of both private
- versus respondents for violation of Section 3(e) of
PUNO, Republic Act No. 3019, otherwise known
SANDOVAL-GUTIERREZ,
as the Anti-Graft and Corrupt Practices
THE HONORABLE AUGUSTO V. CORONA,
Act. Accompanying
BREVA, Presiding Judge, Regional AZCUNA,
theand
Ladrera resolution is
a
draft
Trial Court, Davao City, Branch 10, GARCIA,Information[1]bearing date March 22, 2000,
ERNESTO
SALVADOR
and Promulgated:
the accusatory portion of which reads:
GUILLERMO SALDAA,
That sometime in or about 1997, or shortly
Respondents.
February
10, or
2006
prior
subsequent thereto, in Davao City,
x---------------------------------------------------------and within the jurisdiction of this
-----------------------x
Honorable Court, the accused, ERNESTO
SALVADOR and GUILLERMO SALDAA, both
low-ranking public employees, committing
DECISION
the offense while in performance of their
official duties and taking advantage of
GARCIA, J.:
their
public
position,
conspiring,
confederating and mutually aiding one
In this petition for certiorari under Rule 65
another, did there and then, willfully,
of the Rules of Court, petitioner Office of
unlawfully and criminally, cause undue
the Ombudsman seeks the annulment and
injury to the City Government of Davao
setting aside of the Orders dated
thru evident bad faith in the performance
September 8 and 29, 2000 of the
of their official duties when accused
Regional Trial Court (RTC) of Davao City in
Salvador made a cash advance in the
Criminal
Case
No.
45,
505-2000
amount of P1 million under the Legislative
entitled People of the Philippines vs.
Research Program of the Sangguniang
Ernesto
Salvador
and
Guillermo
Panglungsod and in the liquidation of the
Saldaa, Accused,
a
prosecution
for
same, they made it appear that they have
violation of the Anti- Graft and Corrupt
paid said amount to the caterers who
Practices Act.
provided food and snacks during the
The facts:
seminars
and
trainings
they
have
allegedly conducted for the youth in the
At times material hereto, the abovedifferent barangays in Davao City when in
named accused, Ernesto Salvador and
truth and in fact, no seminars and
Guillermo
Saldaa,
now
private
trainings of said nature were conducted,
respondents, were both employees of the
thereby causing damage and injury to the
Sangguniang
Panglungsod
government in the said amount.
of Davao City. Private
respondentSalvador held the position of
CONTRARY TO LAW.
Legislative Officer II, while private
respondent Saldaa was the Sanggunian's
Secretary.
On May 2, 2000, the Deputy Ombudsman
for Mindanao endorsed the records of
Investigating news reports regarding
OMB-MIN-98-0200, including the Ladrera
the allegations of Davao City Councilor
resolution and the draft Information, to the
Diosdado Mahipus concerning anomalous
City Prosecutor of Davao.
disbursements of the citys PhP1M
legislative research fund, the Office of the
On May 29, 2000, the City Prosecutor of
Ombudsman
for
Mindanao,
in
a
Davao filed with the RTC of Davao City the
proceeding thereat docketed as OMB-MINaforementioned
Information,
thereat

docketed as Criminal Case No. 45, 5052000 which was raffled to Branch 5 of the
court.

Supreme Court in the case of George Uy v.

Sandiganbayan, et al. (G.R. Nos. 10596570) where it is held that

Meanwhile, in OMB-MIN-98-0200, private

respondent Ernesto Salvador filed a
motion for reconsideration of the Ladrera
resolution, followed a few days later by a
similar motion of private respondent
Guillermo Saldaa.

In this connection, it is the prosecutor, not

the Ombudsman, who has the authority to
file
the
corresponding
information/s
against petitioner in the regional trial
court. The
Ombudsman
exercises
prosecutorial powers only in cases
cognizable by the Sandiganbayan.

To
complement
their
motions
for
reconsideration, both private respondents
jointly filed in Criminal Case No. 45, 5052000 an Omnibus
Manifestations
and
Motions, praying thereunder as follows:
a. For reconsideration and/or completion
of Preliminary Investigation by the
Ombudsman;
b. Holding
in
abeyance
implementation of and/or recall
warrant of arrest; and

the
the

c. To defer further proceedings.

In its Order[2] of July 20, 2000, however,
the trial court denied the omnibus motion.
Subsequently,
private
respondent Salvador filed with the same
court a Motion to Quash Criminal Case No.
45,
505-2000,
invoking
the
pronouncement of this Court in George Uy
vs. Sandiganbayan[3] bearing on the
authority of the Ombudsman to file
information with regular courts.
On September 8, 2000, the trial court
issued
an
Order[4] considering
as
submitted
without
any
opposition
respondent Salvador's Motion to Quash.
On the same date - September 8, 2000 the trial court issued the herein assailed
Order[5] dismissingCriminal Case No. 45,
505-2000, rationalizing as follows:
Submitted
for
resolution
without
opposition is the MOTION TO QUASH filed
by accused Ernesto Salvador, datedAugust
31, 2000,. The motion is based on the
ground that the Officer who filed the
Information in this case had no authority
to do so in light of the ruling of the

xxx xxx xxx

The clear import of such pronouncement
is to recognize the authority of the State
and
regular
provincial
and
city
prosecutors under the Department of
Justice to have control over prosecution of
cases falling within the jurisdiction of the
regular courts. The investigation and
prosecutorial powers of the Ombudsman
relate to cases rightfully falling within the
jurisdiction of the Sandiganbayan under
Section 15 (1) of R.A. 6770 (An Act
Providing for the Functional and Structural
Organization of the Office of the
Ombudsman, and for other purposes)
which
vests
upon
the
Ombudsman primary jurisdiction
over
cases
cognizable
by
the
Sandiganbayan And
this
is
further
buttressed by Section 11(4a) of R.A. 6770
which emphasizes that the Office of the
Special Prosecutor shall have the power to
conduct preliminary investigation and
prosecute
criminal
cases within
the
jurisdiction of the Sandiganbayan. Thus,
repeated
references
to
the
Sandiganbayan's jurisdiction clearly serve
to limit the Ombudman's and Special
Prosecutor's authority to cases cognizable
by the Sandiganbayan.
Apparently not yet aware of the trial
court's aforementioned order of dismissal,
the Office of the Ombudsman-Mindanao
filed an Opposition [6] dated September 8,
2000, therein opposing and basically
praying for the denial of Salvadors Motion
to Quash on the argument that
1. While it is true that the Supreme Court
has ruled in the case of George Uy vs.

Sandiganbayan, et. al., G.R. Nos. 10596570, that it is the prosecutor, not the
Ombudsman, who has authority to file the
corresponding
information/s
against
petitioner in the Regional Trial Court and
the Ombudsman exercises prosecutorial
powers only in cases cognizable by the
Sandiganbayan, it is equally true that said
decision rendered on 09 August 1999 and
followed by a Resolution dated 22
February 2000 has never been final and,
therefore, premature as of this moment to
consider the same as judicial precedent;
Also, seemingly unaware, too, of the
dismissal
of
the
case,
private
respondent Saldaa filed his ownMotion to
Quash,[7] dated September 11, 2000,
therein likewise citing George Uy.
Apprised later of the dismissal of Criminal
Case No. 45, 505-2000, petitioner filed a
Motion for Reconsideration[8] which the
trial court denied via its other assailed
Order [9] dated September 29, 2000.
On November 29, 2000, petitioner filed
the present recourse on the submission
that respondent judge acted without or in
excess of jurisdiction and/or with grave
abuse of discretion when:
I. HE TOOK COGNIZANCE OF PRIVATE
RESPONDENT SALVADOR'S
FATALLY
DEFECTIVE MOTION TO QUASH AND
CONSIDERED
IT
SUBMITTED
FOR
RESOLUTION WITHOUT OPPOSITION;
II. HE ADOPTED THE GEORGE UY RULING
AND DISMISSED CRIMINAL CASE NO. 45,
505-2000 ON THE GROUND THAT THE
OFFICER WHO FILED THE INFORMATION
HAD NO AUTHORITY TO DO SO, THEREBY
DISREGARDING THE FOLLOWING VITAL
CONSIDERATIONS:
A. THE JURISDICTION OF THE HONORABLE
SANDIGANBAYAN IS NOT PARALLEL TO, OR
TO BE EQUATED WITH, THE BROADER
JURISDICTION OF THE OFFICE OF THE
OMBUDSMAN;
B. THE PHRASE PRIMARY JURISDICTION OF
THE OFFICE OF THE OMBUDSMAN OVER
CASES
COGNIZABLE
BY
THE
SANDIGANBAYAN IS NOT A DELIMITATION

OF
ITS
JURISDICTION
SOLELY
SANDIGANBAYAN CASES; AND

TO

C. THE AUTHORITY OF THE OFFICE OF THE

SPECIAL PROSECUTOR TO PROSECUTE
CASES BEFORE THE SANDIGANBAYAN
CANNOT BE CONFUSED WITH THE
BROADER
INVESTIGATORY
AND
PROSECUTORIAL POWERS OF THE OFFICE
OF THE OMBUDSMAN; AND
III. HE DISREGARDED THE PENDENCY OF
PETITIONER'S MOTION FOR FURTHER
CLARIFICATION IN THE GEORGE UY CASE
BEFORE THIS HONORABLE COURT.

We find merit in the petition.

At the core of the controversy is the
perceived overlapping of jurisdiction
between the Office of the Ombudsman
and the Department of Justice in the
investigation and prosecution of offenses
committed
by
public
officers
and
employees. The confusion came about as
an aftermath of a series of enactments
restructuring
the
offices
of
the
Ombudsman
and
Sandiganbayan,
specifically, the following: Rep. Act No.
6770, the Ombudsman Act of 1989,
reorganizing
the
Office
of
the Ombudsman; Rep. Act No. 7975,
reorganizing the Sandiganbayan; and Rep.
Act
No.
8249,
defining
the
Sandiganbayan's jurisdiction.
As may be recalled, it was amidst the
foregoing
backdrop
of
legislative
enactments when this Court promulgated
on August
9,
1999 its
Decision[10] in
the George Uy case. In the penultimate
paragraph of that Decision, the Court
stated it is the prosecutor, not the
Ombudsman, who has the authority to file
the corresponding information/s against
petitioner in the regional trial court. The
Ombudsman
exercises
prosecutorial
powers only in cases cognizable by the
Sandiganbayan. [11] Thereafter, the Court,
in
the
same
case
of George
Uy, promulgated
a
Resolution[12] on February
22,
2000,
therein stressing, as follows:

(T)he clear import of such pronouncement

is to recognize the authority of the State
and regular provincial and city prosecutors
under the [DOJ] to have control over
prosecution of cases falling within the
jurisdiction of the regular courts. The
investigation and prosecutorial powers of
the Ombudsman relate to cases rightfully
falling within the jurisdiction of the
Sandiganbayan under Section 15 (1) of
R.A. 6770 which vests upon the
Ombudsman primary jurisdiction
over
cases cognizable by the Sandiganbayan
And this is further buttressed by Section
11 (4a) of R.A. 6770 which emphasizes
that the Office of the Special Prosecutor
shall have the power to conduct
preliminary investigation and prosecute
criminal cases within the jurisdiction of
the
Sandiganbayan. Thus, repeated
references to
the Sandiganbayan's
jurisdiction clearly serve to limit the
Ombudman's and Special Prosecutor's
authority to cases cognizable by the
Sandiganbayan (Word in bracket added;
italization in the original).
Subsequently, the Ombudsman interposed
in George
Uy a
motion
for further
clarification.[13]Resolving the motion, the
Court, this time speaking thru Associate
Justice Reynato S. Puno, in aResolution
dated March 20, 2001,[14] nullified
and set aside its pronouncement in its
decision of August 9, 1999 and its
resolution of February 20, 2000 in George
Uy that
the
Ombudsman
exercises
prosecutorial powers only in cases
cognizable by the Sandiganbayan, thus:
IN VIEW WHEREOF, the Courts ruling in its
decision dated August 9, 1999 and its
resolution dated February 20, 2000that
the Ombudsman exercises prosecutorial
powers only in cases cognizable by the
Sandiganbayan is SET ASIDE.
SO ORDERED.
This time, the Court categorically stated
that: the Ombudsman is clothed with
authority
to
conduct
preliminary
investigation and to prosecute all criminal
cases involving public officers and
employees, not only those within the
jurisdiction of the Sandiganbayan, but

those within the jurisdiction of the regular

courts
as
well. Elaborating
on
its
nullificatory ruling, the Court, in its
aforementioned Resolution of March 20,
2001, writes:
The authority of the Ombudsman to
investigate
and
prosecute
offenses
committed
by
public
officers
and
employees is founded in Section 15 and
Section 11 of RA 6770. Section 15 vests
the Ombudsman with the power to
investigate and prosecute any act or
omission of any public officer or employee,
office or agency, when such act or
omission appears to be illegal, unjust,
improper or inefficient, thus:
Sec 15. Powers, Functions and Duties.The
Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own
or on complaint by any person, any act or
omission of any public officer or
employee, office or agency, when such
act
or
omission
appears
to
be
illegal, unjust,improper or inefficient. It
has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in
the exercise of this primary jurisdiction, it
may take over, at any stage, from any
investigatory agency of Government, the
investigation of such cases;
xxx xxx xxx
Section 11 grants the Office of the Special
Prosecutor, an organic component of the
Office of the Ombudsman . . ., the power
to conduct preliminary investigation and
prosecute criminal cases within the
jurisdiction of the Sandiganbayan. It
states:
Sec 11. Structural Organization. xxx
xxx xxx xxx
(4) The Office of the Special Prosecutor
shall, under the supervision and control
and upon authority of the Ombudsman,
have the following powers:
(a) To conduct preliminary investigation
and prosecute criminal cases within the
jurisdiction of the Sandiganbayan;

xxx xxx xxx

The power to investigate and to prosecute
granted by law to the Ombudsman is
plenary and unqualified. It pertains toany
act or omission of any public officer or
employee when such act or omission
appears to be illegal, unjust, improper or
inefficient. The law does not make a
distinction between cases cognizable by
the Sandiganbayan and those cognizable
by regular courts. It has been held that the
clause "any illegal act or omission of any
public official" is broad enough to embrace
any crime committed by a public officer or
employee.
The reference made by RA 6770 to cases
cognizable
by
the
Sandiganbayan,
particularly in Section 15 (1) giving the
Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan,
and Section 11 (4) granting the Special
Prosecutor
the
power
to
conduct
preliminary investigation and prosecute
criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed
as confining the scope of the investigatory
and prosecutory power of the Ombudsman
to such cases.
Section 15 of RA 6770 gives the
Ombudsman primary jurisdiction over
cases
cognizable
by
the
Sandiganbayan. The law defines such
primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage,
from any investigatory agency of the
government, the investigation of such
cases." The grant of this authority does
not necessarily imply the exclusion from
its jurisdiction of cases involving public
officers and employees cognizable by
other courts. xxx.
Moreover, the jurisdiction of the Office of
the Ombudsman should not be equated
with the limited authority of the Special
Prosecutor under Section 11 of RA 6770
[whose] power to conduct preliminary
investigation and to prosecute is limited
to criminal cases within the jurisdiction of
the
Sandiganbayan. Certainly,
the
lawmakers did not intend to confine the

investigatory and prosecutory power of

the Ombudsman to these types of
cases. The Ombudsman is mandated by
law to act on all complaints against
officers and employees of the government
.
Given the Courts George Uy ruling under
its March 20, 2001 Resolution, the trial
courts assailed Orders of September 8 and
29, 2000, are, in hindsight, without legal
support and must, therefore, be set aside.
This is not necessarily to say, however,
that grave abuse of discretion amounting
to lack or excess of jurisdiction, as
petitioner presently argues, attended the
issuance of both orders. As it were, the
orders were issued under the aegis of the
then prevailing August 9, 1999 George
Uy decision,
asreiterated
in
the
Courts February 22, 2000 Resolution. Until
they were contextually superseded and
set
aside
by
the
March
20,
2001 George Uy Resolution, the August 9,
1999 decision and February 22, 2000
resolution in question veritably formed
part of the legal system of the land. And a
judicial action taken conformably with
what may be considered as the law of the
land cannot, without more, be plausibly
challenged on ground of lack or in excess
of jurisdiction. If respondent judge is to be
called to task, it is perhaps for not heeding
petitioners plea to defer action on private
respondents separate unsworn motions to
quash in Criminal Case No. 45, 5052000 on the ground stated therein
pending resolution of petitioners Motion
for Further Clarification in George Uy then
pending with this Court.
At any rate, the determinative issue in this
case pivots on the question of whether or
not the Office of the Ombudsman was
possessed of the authority to file with
the Regional Trial Court of Davao City the
information for violation of the Anti-Graft
Law against herein private respondents.
This issue and practically all arguments
and counter-arguments on collateral
matters raised in the pleadings have been
adequately
addressed,
if
not
rendered functus
oficio, by
the
clarificatory resolution in the George

Uycase. They need not detain us any

longer.
WHEREFORE,
the
petition
is GRANTED and the assailed orders of
the respondent judge in Criminal Case No.
45,
505-2000 are ANNULLED and SET
ASIDE.
SO ORDERED.

FIRST DIVISION
ATTY. RONALDO P. LEDESMA, G.R. No.
161629
Petitioner,
Present:
Davide, Jr., C.J. (Chairman),
- versus - Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
HON. COURT OF APPEALS, HON.
ANIANO A. DESIERTO, in his
capacity as Ombudsman, HON.
ABELARDO L. APORTADERA, in
his
capacity
as
Assistant
Ombudsman,
and Ombudsmans Fact Finding and
Intelligence
Bureau,
represented
by Promulgated:
Director AGAPITO ROSALES,
Respondents. July 29, 2005
x
--------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari seeks
to
reverse
and
set
aside
the
decision[1] dated August 28, 2003 and the
resolution[2] dated January 15, 2004 of the
Court of Appeals[3] in CA-G.R. SP No. 58264
which affirmed with modification public
respondents (1) Joint Resolution dated
January 22, 1999, which ordered, among
other things, petitioners suspension for
one (1) year for conduct prejudicial to the

service; and (2) Order dated February 8,

2000, as reiterated in a Memorandum
dated March 17, 2000, which denied
petitioners motion for reconsideration but
reduced his suspension to nine (9) months
without pay. The Court of Appeals
modified the above issuances by further
reducing petitioners suspension from nine
(9) months to six (6) months and one (1)
day without pay.[4]
Petitioner Atty. Ronaldo P. Ledesma is the
Chairman of the First Division of the Board
of Special Inquiry (BSI) of the Bureau of
Immigration and Deportation (BID). In a
letter-complaint filed by Augusto Somalio
with the Fact Finding and Intelligence
Bureau (FIIB) of the Office of the
Ombudsman,
an
investigation
was
requested
on
alleged
anomalies
surrounding
the
extension
of
the
Temporary Resident Visas (TRVs) of two (2)
foreign nationals. The FIIB investigation
revealed seven (7) other cases of TRV
extensions
tainted
with
similar
irregularities.
As a result, the FIIB, as nominal
complainant,
filed
before
the
Administrative Adjudication Bureau (AAB)
of the Office of the Ombudsman a formal
complaint against herein petitioner. Also
charged administratively were Atty. Arthel
Caronongan and Ma. Elena P. Ang, Board
Member
and
Executive
Assistant,
respectively, in petitioners division. With
respect to petitioner, the complaint was
treated as both a criminal and an
administrative charge and docketed as
OMB-0-98-0214 (criminal aspect), for nine
(9) counts of violation of the Anti-Graft
and Corrupt Practices Act and for
falsification of public documents, and
OMB-ADM-0-98-0038
(administrative
aspect), for nine (9) counts of Dishonesty,
Grave Misconduct, Falsification of Public
Documents and Gross Neglect of Duty.
The
complaint
against
petitioner,
Caronongan and Ang alleged the following
illegal acts: (a) irregularly granting TRVs
beyond the prescribed period; and (b)
using recycled or photocopied applications
for a TRV extension without the applicants
affixing their signatures anew to validate

the correctness and truthfulness of the

information previously stated therein.
Specifically, petitioner and Caronongan
allegedly signed the Memorandum of
Transmittal to the Board of Commission
(BOC) of the BID, forwarding the
applications for TRV extension of several
aliens whose papers were questionable.
In a Joint Resolution[5] dated January 22,
1999, Graft Investigation Officer Marlyn M.
Reyes resolved theadministrative cases
filed against petitioner, Caronongan and
Ang, as follows:
WHEREFORE, foregoing considered, it is
respectfully recommended that:
1. Respondent ATTY. RONALDO P. LEDESMA
be SUSPENDED from the service for one
(1) year for Conduct Prejudicial to the
Interest of the Service;
2. The instant case against ATTY. ARTHEL
B. CARONONGAN be DISMISSED, the same
having
been
rendered
moot
and
academic; and
3. The instant case against respondent
MA. ELENA P. ANG be DISMISSED for lack
of sufficient evidence.

On April 13, 2000, petitioner filed a

petition for review with the Court of
Appeals, which included a prayer for the
issuance of a writ of preliminary
prohibitory mandatory injunction and/or
temporary restraining order to enjoin
public respondents from implementing the
order of suspension. The Court of Appeals
issued the TRO on April 19, 2000.
In its Decision dated August 28, 2003, the
Court of Appeals affirmed petitioners
suspension but reduced the period from
nine (9) months to six (6) months and one
(1) day without pay.[12]
With the denial of his motion for
reconsideration, petitioner filed the instant
petition for review on the following
grounds:
I.

SO RESOLVED.[6]
Respondent
Assistant
Abelardo L. Aportadera, Jr.
Joint Resolution which was
respondent Ombudsman
December 29, 1999.[7]

In an Order[11] dated February 8, 2000,

Graft Officer Reyes recommended the
denial of the motion for reconsideration
which was approved by respondent
Ombudsman on March 24, 2000 but
reduced the period of suspension from one
(1) year to nine (9) months without pay.

Ombudsman
reviewed the
approved by
Desierto on

In the meantime, on July 9, 1999,

respondent Ombudsman approved a
Resolution[8] dated June 22, 1999 of Graft
Investigation Officer Marilou B. AnchetaMejica, dismissing the criminal charges
against petitioner for insufficiency of
evidence.[9]
Petitioner
filed
a
motion
for
reconsideration[10] in
the administrative case alleging that the
BOC which reviews all applications for
TRVs extension, approved the TRVs in
question, hence, petitioner argued that it
effectively declared the applications for
extension regular and in order and waived
any infirmity thereon.

IN
PROMULGATING
ITS
ASSAILED
DECISION,
RESPONDENT
COURT
OF
APPEALS MANIFESTLY OVERLOOKED THE
FOLLOWING
RELEVANT
FACTS
AND
MATTERS
WHICH,
IF
PROPERLY
CONSIDERED, WOULD HAVE JUSTIFIED A
DIFFERENT CONCLUSION IN FAVOR OF
PETITIONER:
...

II.
THE PRONOUNCEMENT OF RESPONDENT
COURT OF APPEALS THAT THE FINDING OF
THE OMBUDSMAN IS NOT MERELY
ADVISORY
ON
THE
BUREAU
OF
IMMIGRATION (BI) IS CONTRARY TO THE
PERTINENT PROVISION OF THE 1987
CONSTITUTION
AND
APPLICABLE
DECISIONS OF THE HONORABLE COURT.
III.
RESPONDENT COURT OF APPEALS ALSO
FAILED
TO
CONSIDER
THAT
THE
OMBUDSMANS
RESOLUTION
FINDING
PETITIONER ADMINISTRATIVELY LIABLE
CONSTITUTES
AN
INDIRECT
ENCROACHMENT INTO THE POWER OF THE
BUREAU
OF
IMMIGRATION
OVER
IMMIGRATION MATTERS.[13]
The petition lacks merit.
Petitioner insists that it was the BOC which
approved the questioned applications for
the extension of the TRVs. He denies that
he misled or deceived the BOC into
approving these applications and argues
that the BOC effectively ratified his actions
and sanctioned his conduct when it
approved
the
subject
applications.
Petitioner adds that he acted in good faith
and the government did not suffer any
damage as a result of his alleged
administrative lapse.
We are not persuaded. In his attempt to
escape liability, petitioner undermines his
position in the BID and his role in the
processing of the subject applications. But
by his own admission,[14] it appears that
the BSI not only transmits the applications
for TRV extension and its supporting
documents, but more importantly, it
interviews the applicants and evaluates
their
papers
before
making
a
recommendation to the BOC. The BSI
reviews the applications and when it finds
them in order, it executes a Memorandum
of Transmittal to the BOC certifying to the
regularity
and
propriety
of
the
applications.

In Arias v. Sandiganbayan,[15] we stated

that all heads of offices have to rely to a
reasonable extent on their subordinates.
Practicality and efficiency in the conduct
of government business dictate that the
gritty details be sifted and reviewed by the
time it reaches the final approving
authority. In the case at bar, it is not
unreasonable for the BOC to rely on the
evaluation and recommendation of the BSI
as it cannot be expected to review every
detail of each application transmitted for
its approval. Petitioner being the Chairman
of the First Division of the BSI has direct
supervision over its proceedings. Thus, he
cannot feign ignorance or good faith when
the irregularities in the TRV extension
applications are so patently clear on its
face. He is principally accountable for
certifying the regularity and propriety of
the applications which he knew were
defective.
Petitioner could not validly claim that he
was singled out for prosecution. It is of
record that administrative cases were also
filed against Caronongan and Ang, but
extraneous circumstances rendered the
case against Caronongan moot while the
case against Ang was dismissed because
it
was
proven
that
she
merely
implemented the approved decision of the
BOC.
Equally untenable is the contention that
the BOCs approval of the defective
applications for TRV extension cured any
infirmities therein and effectively absolved
petitioners administrative lapse. The
instant administrative case pertains to the
acts of petitioner as Chairman of the First
Division of the BSI in processing nine (9)
defective applications, independent of and
without regard to the action taken by the
BOC. It does not impugn the validity of the
TRV extensions as to encroach upon the
authority of the BID on immigration
matters. The main thrust of the case is to
determine whether petitioner committed
any
misconduct,
nonfeasance,
misfeasance or malfeasance in the
performance of his duties.
Anent the second and third grounds,
petitioner essentially puts in issue the

import of the Ombudsmans findings.

Petitioner questions the Court of Appeals
pronouncement that the findings of the
Ombudsman may not be said to be merely
recommendatory upon the Immigration
Commissioner. He argues that to uphold
the appellate courts ruling expands the
authority granted by the Constitution to
the Office of the Ombudsman and runs
counter to prevailing jurisprudence on the
matter, particularly Tapiador v. Office of
the Ombudsman.[16] Petitioner submits
that the Ombudsmans findings that the
TRV applications were illegal constitutes
an
indirect
interference
by
the
Ombudsman into the powers of the BOC
over immigration matters.
We do not agree. The creation of the
Office of the Ombudsman is a unique
feature of the 1987 Constitution. [17]The
Ombudsman
and
his
deputies,
as
protectors of the people, are mandated to
act promptly on complaints filed in any
form or manner against officers or
employees of the Government, or of any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled
corporations.[18] Foremost
among its powers is the authority to
investigate and prosecute cases involving
public officers and employees, thus:
Section 13. The Office of the Ombudsman
shall have the following powers, functions,
and duties:
(1) Investigate on its own, or on complaint
by any person, any act or omission of any
public official, employee, office or agency,
when such act or omission appears to be
illegal, unjust, improper, or inefficient.
Republic Act No. 6770, otherwise known
as The Ombudsman Act of 1989, was
passed into law on November 17, 1989
and provided for the structural and
functional organization of the Office of the
Ombudsman. RA 6770 mandated the
Ombudsman and his deputies not only to
act promptly on complaints but also to
enforce the administrative, civil and
criminal liability of government officers
and employees in every case where the

evidence warrants to promote efficient

service by the Government to the people.
[19]

The authority of the Ombudsman to

conduct administrative investigations as in
the present case is settled.[20]Section 19 of
RA 6770 provides:
SEC. 19. Administrative Complaints. The
Ombudsman shall act on all complaints
relating, but not limited to acts or
omissions which:
(1)
Are contrary to law or
regulation;
(2)
Are
unreasonable,
unfair,
oppressive or discriminatory;
(3)
Are inconsistent with the
general course of an agencys functions,
though in accordance with law;
(4)
Proceed from a mistake of law
or an arbitrary ascertainment of facts;
(5)
Are
in
the
exercise
of
discretionary powers but for an improper
purpose; or
(6)
Are
otherwise
irregular,
immoral or devoid of justification.
The point of contention is the binding
power of any decision or order that
emanates from the Office of the
Ombudsman after it has conducted its
investigation. Under Section 13(3) of
Article XI of the 1987 Constitution, it is
provided:
Section 13. The Office of the Ombudsman
shall have the following powers, functions,
and duties:
...
(3) Direct the officer concerned to take
appropriate action against a public official
or employee at fault, and recommendhis
removal, suspension, demotion, fine,
censure, or prosecution, and ensure
compliance
therewith.
(Emphasis
supplied)
Petitioner
insists
that
the
word recommend be given its literal
meaning; that is, that the Ombudsmans
action is only advisory in nature rather

than one having any binding effect,

citing Tapiador
v.
Office
of
the
Ombudsman,[21] thus:
... Besides, assuming arguendo, that
petitioner were administratively liable, the
Ombudsman has no authority to directly
dismiss
the
petitioner
from
the
government service, more particularly
from his position in the BID. Under Section
13, subparagraph (3), of Article XI of the
1987 Constitution, the Ombudsman can
only recommend the removal of the public
official or employee found to be at fault, to
the public official concerned.[22]
For their part, the Solicitor General and
the Office of the Ombudsman argue that
the word recommend must be taken in
conjunction with the phrase and ensure
compliance
therewith. The
proper
interpretation of the Courts statement
in Tapiador should
be
that
the
Ombudsman
has
the
authority
to
determine the administrative liability of a
public official or employee at fault, and
direct and compel the head of the office or
agency concerned to implement the
penalty imposed. In other words, it merely
concerns the procedural aspect of the
Ombudsmans
functions
and
not
its jurisdiction.
We agree with the ratiocination of public
respondents. Several reasons militate
against a literal interpretation of the
subject constitutional provision. Firstly, a
cursory reading of Tapiador reveals that
the main point of the case was the failure
of the complainant therein to present
substantial evidence to prove the charges
of the administrative case. The statement
that made reference to the power of the
Ombudsman is, at best, merely an obiter
dictum and, as it is unsupported by
sufficient explanation, is susceptible to
varying interpretations, as what precisely
is before us in this case. Hence, it cannot
be cited as a doctrinal declaration of this
Court nor is it safe from judicial
examination.
The provisions of RA 6770 support public
respondents
theory.
Section
15
is
substantially the same as Section 13,

Article XI of the Constitution which

provides for the powers, functions and
duties of the Ombudsman. We draw
attention to subparagraph 3, to wit:
SEC.
15. Powers,
Functions
and
Duties. The Office of the Ombudsman shall
have the following powers, functions and
duties:
...
(3) Direct the officer concerned to take
appropriate action against a public officer
or employee at fault or who neglects to
perform an act or discharge a duty
required by law, and recommend his
removal, suspension, demotion, fine,
censure, or prosecution, and ensure
compliance therewith; or enforce its
disciplinary authority as provided in
Section 21 of this Act: Provided, That the
refusal by any officer without just cause to
comply with an order of the Ombudsman
to remove, suspend, demote, fine,
censure, or prosecute an officer or
employee who is at fault or who neglects
to perform an act or discharge a duty
required by law shall be a ground for
disciplinary
action
against
said
officer; (Emphasis supplied)
We note that the proviso above qualifies
the order to remove, suspend, demote,
fine, censure, or prosecute an officer or
employee
akin
to
the
questioned
issuances in the case at bar. That the
refusal, without just cause, of any officer
to comply with such an order of the
Ombudsman to penalize an erring officer
or employee is a ground for disciplinary
action, is a strong indication that the
Ombudsmans recommendation is not
merely advisory in nature but is actually
mandatory within the bounds of law. This
should not be interpreted as usurpation by
the Ombudsman of the authority of the
head of office or any officer concerned. It
has long been settled that the power of
the Ombudsman to investigate and
prosecute any illegal act or omission of
any public official is not an exclusive
authority but a shared or concurrent
authority in respect of the offense
charged.[23] By stating therefore that the

Ombudsman recommends the action to be

taken against an erring officer or
employee,
the
provisions
in
the
Constitution and in RA 6770 intended that
the implementation of the order be
coursed through the proper officer, which
in this case would be the head of the BID.
It is likewise apparent that under RA 6770,
the lawmakers intended to provide the
Office of the Ombudsman with sufficient
muscle to ensure that it can effectively
carry out its mandate as protector of the
people
against
inept
and
corrupt
government officers and employees. The
Office was granted the power to punish for
contempt in accordance with the Rules of
Court.[24] It was given disciplinary authority
over all elective and appointive officials of
the government and its subdivisions,
instrumentalities and agencies (with the
exception only of impeachable officers,
members of Congress and the Judiciary).
[25]
Also, it can preventively suspend any
officer under its authority pending an
investigation when the case so warrants.
[26]

The foregoing interpretation is consistent

with the wisdom and spirit behind the
creation of the Office of the Ombudsman.
The records of the deliberations of the
Constitutional Commission[27] reveal the
following:
MR. MONSOD:
Madam President, perhaps it might be
helpful if we give the spirit and
intendment of the Committee. What we
wanted to avoid is the situation where it
deteriorates into a prosecution arm. We
wanted to give the idea of the
Ombudsman a chance, with prestige and
persuasive powers, and also a chance to
really function as a champion of the
citizen.
However, we do not want to foreclose the
possibility that in the future, The
Assembly, as it may see fit, may have to
give
additional
powers
to
the
Ombudsman; we want to give the concept
of a pure Ombudsman a chance under the
Constitution.

MR. RODRIGO:
Madam President, what I am worried
about is if we create a constitutional body
which
has
neither
punitive
nor
prosecutory powers but only persuasive
powers, we might be raising the hopes of
our people too much and then disappoint
them.
MR. MONSOD:
I agree with the Commissioner.

MR. RODRIGO:
Anyway, since we state that the powers of
the Ombudsman can later on be
implemented by the legislature, why not
leave this to the legislature?[28]
MR. MONSOD:
Yes, because we want to avoid what
happened in 1973. I read the committee
report which recommended the approval
of the 27 resolutions for the creation of
the office of the Ombudsman, but
notwithstanding the explicit purpose
enunciated
in
that
report,
the
implementing law the last one, P.D. No.
1630did not follow the main thrust;
instead it created the Tanodbayan, ...
...
MR. MONSOD: (reacting to statements of
Commissioner Blas Ople):
May we just state that perhaps the
honorable Commissioner has looked at it
in too much of an absolutist position, The
Ombudsman is seen as a civil advocate or
a champion of the citizens against the
bureaucracy, not against the President. On
one hand, we are told he has no teeth and
he lacks other things. On the other hand,
there is the interpretation that he is a
competitor to the President, as if he is
being brought up to the same level as the
President.
With respect to the argument that he is a
toothless animal, we would like to say that
we are promoting the concept in its form
at the present, but we are also saying that
he can exercise such powers and
functions as may be provided by law in
accordance with the direction of the
thinking of Commissioner Rodrigo. We did
not think that at this time we should
prescribe this, but we leave it up to
Congress at some future time if it feels
that it may need to designate what
powers the Ombudsman need in order
that he be more effective. This is not
foreclosed.

So, his is a reversible disability, unlike that

of a eunuch; it is not an irreversible
disability. (Emphasis supplied)[29]
It is thus clear that the framers of our
Constitution intended to create a stronger
and
more
effective
Ombudsman,
independent and beyond the reach of
political influences and vested with powers
that are not merely persuasive in
character. The Constitutional Commission
left to Congress to empower the
Ombudsman with prosecutorial functions
which it did when RA 6770 was enacted. In
the case of Uy v. Sandiganbayan,[30] it was
held:
Clearly,
the
Philippine
Ombudsman
departs from the classical Ombudsman
model whose function is merely to receive
and process the peoples complaints
against corrupt and abusive government
personnel. The Philippine Ombudsman, as
protector of the people, is armed with the
power to prosecute erring public officers
and employees, giving him an active role
in the enforcement of laws on anti-graft
and corrupt practices and such other
offenses that may be committed by such
officers and employees. The legislature
has vested him with broad powers to
enable him to implement his own
actions. ...[31]
In light of the foregoing, we hold that the
Court of Appeals did not commit any error
in finding the petitioner guilty of conduct
prejudicial to the interest of the service
and reducing petitioners period of
suspension to six (6) months and one (1)
day without pay, taking into account the
education and length of service of
petitioner.
WHEREFORE,
the
instant
petition
is DENIED. The Decision dated August 28,
2003 and the Resolution dated January 15,
2004 of the Court of Appeals in CA-G.R. SP
No. 58264 are AFFIRMED.
SO ORDERED.
G.R. Nos. 83938-40 November 6, 1989
PEOPLE
OF
THE
PHILIPPINES, petitioner,

vs.
HON. HENRY B. BASILLA, SALVACION
COLAMBOT, SPOUSES JAIME AND
ADORACION TAYONG and MELCHOR
YANSON, respondents.
The Office of the Solicitor General for
petitioner.
Ruben A. Songco for respondents.
FELICIANO, J.:
As an aftermath of the May 1987
congressional
elections
in
Masbate,
complaints for violations of Section 261 of
the Omnibus Election Code (BP Blg. 881)
were filed with the Office of the Provincial
Fiscal of Masbate against the private
respondents as follows:
1) by Jolly Fernandez, then Officer-inCharge of the Office of the Governor,
against the spouses Jaime and Adoracion
Tayong for violation of Section 261,
paragraph a-1, for vote-buying;
2) by Ladislao Bataliran against Salvacion
Colambot for violation of Section 261,
paragraph a-1, also for vote buying; and
3) by PC/Sgt Arturo Rebaya against
Melchor Yanson for violation of Section
261, paragraph p, for carrying of deadly
weapon.
After preliminary investigation of the
foregoing complaints, the Provincial Fiscal
of Masbate filed in the Regional Trial Court,
Branch 49, Cataingan, Masbate,. the
following criminal complaints: (1,) Criminal
Case No. 324 against the spouses Tayong;
(2) Criminal Case No. 326 against
Salvacion Colambot and (3) Criminal Case
No. 375 against Melchor Yanson.
In three (3) separate orders, all dated 6
October 1987, and Identical in tenor save
for the names of the accused respondent
Judge
Henry
Basilla motu
proprio dismissed
the
three
(3)
informations filed by the Provincial Fiscal,
giving the following justification:
xxx xxx xxx
The record shows that the complainant
filed the complaint with the fiscal and not
with the COMELEC. The COMELEC did not
investigate the case.
The Constitution of the Republic of the
Philippines says:
"Sec. 2(6) of Art. IX (C) The Commission
on Election shall exercise the following
powers and functions:

xxx xxx xxx

... ; investigate and, when appropriate
prosecute cases of violation of election
laws,
including
acts
or
omissions,
constituting election frauds offenses,
malpractices."
The Omnibus Election Election Code of the
Philippines (BP Blg, 881) says:
Sec. 265. Prosecution. The Commission
shall, through its duly authorized legal
officers, have the exclusive power to
conduct preliminary investigation of all
election offenses punishable under this
Code, and to prosecute the same. The
Commission may avail of the assistance of
other
prosecuting
arms
of
the
government; Provided, however, that in
the event that the Commission fails to act
on any complaint within four months from
his filing, the complaint may file the
complaint with the office of the fiscal or
with the Ministry of Justice. for proper
investigation
and
prosecution,
if
warranted. (Sec. 182, 1978, EC; and Sec.
66. BP 697)
In the landmark case of De Jesus vs.
People, L-60998, February 120 SCRA 760,
the the Supreme Court ruled:
The grant to the COMELEC of the power.
among others, to enforce and administer
all laws relative to the conduct of election
and
the
concomitant
authority
to investigate andprosecute election
offenses is not without compelling reason.
The evident constitutional intendment in
bestowing this power to the COMELEC is to
ensure the free, and honest conduct of
elections, failure of which would result i ii
the frustration of the true will of the
people and make a mere Idle ceremony of
the sacred right and duty of every
qualified citizen to vote. To divest the
COMELEC of the authority to investigate
and
prosecute
election
offenses committed by public officials in
relation to their office would thus seriously
impair its effectiveness in achieving this
clear constitutional mandate.
Consistently, and lately, in Corpu[s], et al.
vs. Tanodbayan of the Philippines', et al.,
L-62075, April 15, 1987, our Supreme
Court rules:
An examination of the provisions of the
Constitution and the Election Code of 1978
reveals the clear intention to place in the

COMELEC
exclusive
jurisdiction
to investigateand prosecute election
offenses
committed
by
any
person, whether private individual or
public officer or employee, and in the
latter instance, irrespective of whether the
offense is committed in relation to his
official duties or not. In other words, it is
the nature of the offense and not the
personality of the offender that matters.
As long as the offense is an election
offense jurisdiction over the same rests
exclusively with the COMELEC, in view of
its all embracing power over the conduct
of election.
IN THE LIGHT OF ALL THE FOREGOING,
inasmuch as the election offense was not
investigated and prosecuted by the
COMELEC.
the
case
is motu
proprio dismissed. 1
The People moved for reconsideration of
respondent
Judge's
orders,
without
success.
The instant Petition for Review assails the
three (3) orders dismissing the three (3 )
criminal informations against the private
respondents, as constituting grave abuse
of discretion amounting to lack of
jurisdiction. The Petition argues principally
that
the
Commission
on
Elections
("Comelec") has authority to deputize the
chief state prosecutors, provincial and city
fiscals and their assistants, under Sections
2 (4) and (8 ), Article IX-C of the 1987
Constitution, and that the Comelec did
deputize such prosecution officers to
conduct preliminary investigation of
complaints for alleged violation of election
laws and to institute criminal informations
therefor.
The Petition must be granted.
There is no dispute that the Comelec is
vested with power and authority to
conduct preliminary investigation of all
election offenses punishable under the
Omnibus Election Code and to prosecute
such offenses in court. Section 265 of this
Code reads as follows:
See. 265. Prosecution. The Commission
shall, through its duly authorized legal
officers, have the exclusive power to
conduct preliminary investigation of all
election offenses punishable under this
Code, and to prosecute the same. The
Commission may avail of the assistance of

other
prosecuting
arms
of
the
government: Provided, however, That in
the event that the Commission fails to act
on any complaint within four months from
his filing, the complainant may file the
complaint with the office of the fiscal or
with the Ministry of Justice for proper
investigation
and
prosecution,
if
warranted. (Sec. 182, 1973 EC; and Sec.
66, BP 697) (Emphasis supplied)
We note that while Section 265 of the
Code vests "exclusive power" to conduct
preliminary investigation of
election
offenses and to prosecute the same upon
the Comelec, it at the same time
authorizes the Comelec to avail itself of
the assistance of other prosecuting arms
of the Government. Section 2 of Article IXC of the 1 987 Constitution clearly
envisage that the Comelec would not be
compelled to carry out all its functions
directly and by itself alone:
Section 2. The Commission on Elections
shall exercise the following powers and
functions:
(1) Enforce and administer all laws and
regulations relative to the conduct of an
election, plebiscite, initiative, referendum,
and recall.
xxx xxx xxx
(4) Deputize, with the concurrence of the
President, law enforcementi agencies and
instrumantalities of the Government,
including the Armed Forces of the
Philippines, for the exclusive purpose of
ensuring free orderly, honest, peaceful,
and credible elections.
xxx xxx xxx
(6) File, upon a verified complaint, or on its
own initiative, petitions in court for
inclusion
or
exclusion
of
voters; investigate
and, where
appropriate, prosecute cases of violation
of election laws, including acts or
omissions constituting election frauds,
offenses, and malpractices.
xxx xxx xxx
(8) Recommend to the President the
removal of any officer or employee it has
deputized, or the imposition of any other
disciplinary action, for violation or
disregard of, or disobedience to its
directive, order, or decision.
xxx xxx xxx
(Emphasis supplied)

The concurrence of the President with the

deputation by Comelec of the prosecuting
arms of the Government, was expressed in
general terms and in advance in Executive
Order No. 134. dated 27 February 1987,
entitled "Enabling Act for the Elections for
members of Congress on May 11, 1987,
and for other purposes." Executive Order
No. 134 provided in pertinent portion as
follows:
xxx xxx xxx
See. 11. Prosecution. Commission shall,
through its duly authorized legal officers,
have
exclusive
power
to
conduct
preliminary investigation of all election
offenses punishable as provided for in the
preceding section, and to prosecute the
same: Provided, That in the event that the
Commission fails to act on any complaint
within two (2) months from filing, the
complainant may file the complaint with
the Office the Fiscal or with the
Department
for
Justice
for
proper
investigation
and
prosecution,
if
warranted.
The Commission may avail of the
assistance of other prosecuting arms of
the government.
(Emphasis supplied)
On 9 March 1987, the Comelec enacted its
Resolution No. 1862. The pertinant
operative portions of this resolution are
the following:
xxx xxx xxx
NOW, THEREFORE, the Commission on
Elections, by virtue of the powers vested
in it by the Constitution of the Republic of
the, Philippines, the Omnibus Election
Code and Executive Orders Nos. 50, 94,
134 and 144, has RESOLVED to designate,
as it hereby designates the Chief State
Prosecutor, all Provincial and City Fiscalss
and their respective Assistants as its
deputies in connection with the elections
for Members of Congress on May 11,
1987, to perform the following duties and
functions:
1. Conduct prelimiry investigation of
complaints involving
election
offenses
under the Omnibus Election Code which
may be filed directly with them, or which
may be endorsed to them by the
Commission
or
its
authorized
representatives; and

2. Whenever a prima facie case exists, file

the proper information in court and
prosecute the same.
Preliminary investigation of cases filed
directly with, or endorsed to, Provincial
and City Fiscals, and/or their respective
Assistants shall be conducted immediately
and shall be finished within thirty (30)
days from the filing thereof and, for this
purpose, they are enjoined to hold office
on a twenty-four (24) hour basis during
the registration of voters on April 11 and
12, 1987, on Election Day on May 11,
1987, and until midnight on Revision Day
on May 2, 1987.
Provincial and City Fiscals and their
respective Assistants shall submit to the
Commission a report on every case
directly filed with them and thereafter,
monthly progress reports on the status of
the cases handled by them, including
those endorsed by the Commission or its
authorized representatives.
This
Resolution
shall
take
effect
immediately. 2 (Emphasis supplied)
The contention of private respondents that
the deputation by the Comelec of the
prosecuting arms of the Government
would be warranted only before the
elections and only to ensure tree, honest,
orderly, peaceful and credible elections,
that is, to perform the peace-keeping
functions of policemen, lack substance.
There is nothing in Section 2 (4) of Article
IX-C of the Constitution which requires
such a pinched niggardly interpretation of
the authority of the Comelec to appoint as
its deputies, officials or employees of
other agencies and instrumentalities of
the government. The prompt investigation
and prosecution and disposition of election
offenses constitute an indispensable part
of the task of securing free, orderly,
honest, peaceful and credible elections.
The investigation and prosecution of
election offenses are, in an important
sense,
more
important
than
the
maintenance of physical order in election
precinct. 'without the assistance of
provincial and city fiscals and their
assistants and staff members, and of the
state prosecutors of the Department of
Justice, the prompt and fair investigation
and prosecution of election offenses
committed before or in the course of

nationwide elections would simply not be

possible, unless, perhaps, the Comelec
had a bureaucracy many times larger than
what it actually has. Moreover, the
prosecution officers designated by the
Comelec become deputies or agents of
the Comelec and pro tantosubject to the
authority, control and supervision of the
Comelec in respect of the particular
functions covered by such deputation. The
acts of such deputies within the lawful
scope of their delegated authority are, in
legal contemplation, the acts of the
Comelec itself. The only limitation the
Constitution itself places upon the
Comelec's authority over its deputies
relates to the enforcement of such
authority
through
administrative
sanctions. Such sanctions-e.g., suspension
or removal-may be recommended by the
Comelec to the President (Sec. 2 [8],
Article IX-C, 1987 Constitution) rather than
directly
imposed
by
the
Comelec,
evidently, to pre-empt and avoid potential
difficulties with the executive department
of the Government where the prosecution
and other officers deputized are ordinarily
located.
All this the respondent Judge disregarded
when he motu proprio dismissed the
criminal informations filed in this case. The
cases he cited in his identical orders De
Jesus v. People, 120 SCRA 760 (1983)
and Corpus, et al. v. Tanodbayan, 149
SCRA 281 (1987) can offer him no comfort
at all; for these cases do not relate to the
authority of the Comelec to deputize the
regular
prosecution
arms
of
the
Government for the investigation and
prosecution of election offenses and those
cases are not in conflict with our ruling
here.
WHEREFORE, the Petition for Review on
certiorari is hereby GRANTED due course
and the Orders of the trial court all dated
October 6, 1987 in Criminal Cases Nos.
324, 326 and 375 and the Order dated
December 7, 1987 in the same cases
denying
the
People's
Motion
for
Reconsideration, are hereby SET ASIDE
and ANNULLED. The trial court is
ORDERED to proceed forthwith with the
continuation of Criminal Cases Nos. 324,
326 and 375 and until termination thereof.
Costs against private respondents.

SO ORDERED.
G.R. No. 105581 December 7, 1994
PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
ELMER DE ASIS y MENESES AND
DANILO
MERCADO
y
ADORABLE, accused-appellants.
The Solicitor General for plaintiff-appellee.
Benjamin A. Opena for accused-appellant.
NOCON, J.:
This is an appeal from the Decision 1 of the
Regional Trial Court, Branch 89 of Quezon
City finding accused-appellants guilty
beyond reasonable doubt of the crime of
Robbery with Homicide.
In an Information 2 filed by the Assistant
City Prosecutor, the crime was allegedly
committed as follows:
That on or about the 29th day of July
1991, in Quezon City, Philippines and
within the jurisdiction of this Honorable
Court, the above named accused,
conspiring together, confederating with
and mutually helping each other, with
intent to gain and by means of violence
and intimidation upon persons, did then
and there, wilfully, (sic) unlawfully and
feloniously rob VICTOR PEREGRINO y
BIRANGKE of cash money amounting to
P350.00 Philippine Currency, and on the
occasion of said robbery, the said
accused, with intent to kill and without
any justifiable cause, did then and there,
wilfully, (sic) unlawfully and feloniously
attack, assault and employ personal
violence upon the person of VICTOR
PEREGRINO y BIRANGKE by stabbing him
on the neck, causing him to sustain
serious and mortal wound (sic) which were
the direct and immediate cause of his
death, to the damage and prejudice of the
heirs of the victim in the aforesaid amount
and in such amount as may be awarded to
them under the provisions of the Civil
Code.
CONTRARY TO LAW.
Killed
instantly,
the
medico-legal
report 3 prepared by Dr. Florante Baltazar
described the wounds sustained by the
victim:
1) Stab wound, right supraclavicular
region, 138 cms from heel, 3 cms from
anterior midline, measuring 2.4 cms. by 1

cm by 5 cms depth directed downwards,

backwards, towards midline, piercing the
thoracic aorta.
2) Stab wound, anterior left upper thorax,
thru the 3rd intercostal space, 125 cms
from heel, 1 cm from anterior midline,
measuring 2 cms by 0.5 cm by 8 cms
depth, directed downwards, backwards
and towards the midline, piercing the arch
of the aorta.
3) Stab wound, anterior distal third of left
arm, as the point of entry, measuring 5
cms by 2 cms, thru the muscle tissue and
exiting at the antero-lateral proximal third
of the left forearm, measuring 2.5 cms by
0.5 cm, entry-exit measuring 7 cms dept.
4) Incised wound, posterior distal third of
the left forearm, measuring 2 cms by 0.5
cm.
CONCLUSION: Cause of death is cardiorespiratory arrest due to shock and
hemorrhage secondary to stab wounds,
body (sic).
Accused anchored their defense on denial
and alibi.
Yielding to the arrest of the police
authorities, accused-appellants now argue
that they have been manhandled by the
barangay officials who forced them to
admit the commission of the crime.
The facts of the case as supported by the
records and transcript of stenographic
notes are as follows:
It was at dawn of July 29, 1991,
specifically at 1:40 o' clock when two taxi
drivers namely Antonio Bautista and
Rogelio Miranda were eating merienda at
a restaurant at the corner of Quezon
Avenue and Speaker Perez Streets,
Quezon City.
Shortly, at about 6 to 7 meters away from
the restaurant, a Rocalex taxi stopped and
someone from the inside of the taxi
shouted three times, "hold-up." Both
Bautista and Miranda rushed to the taxi
and saw a commotion between the driver
of the taxi and two other men, one sitting
beside the driver and the other seated at
the back.
Noticing Bautista and Miranda, the two
men inside the taxi went out and
threatened the former with a fan knife.
Both
witnesses
described the
two
holduppers in detail, one being taller than
the other, the former holding a fan knife

and was later identified as accusedappellant Danilo Mercado. The one seated
at the back was shorter and was later
identified as accused-appellant Elmer de
Asis.
Bautista and Miranda retreated for fear of
their lives while the two accused ran
towards Manila along Quezon Avenue and
then turning right at Apo Street,
proceeded to Cuenco Street. They were
chased by Bautista and Miranda and other
persons from within the vicinity until they
overtook one of the accused, namely,
accused-appellant Danilo Mercado whom
they later turned over to Barangay Tanod
Rodrigo Austero. A bloodied fan knife was
recovered from Mercado's right pocket by
Tanod Austerio.
Meanwhile, Barangay Tanod Mariano Perez
chased the other accused and caught him
at the corner of Kanlaon and Laong Laan
Streets. Frisked by Barangay Tanod Perez,
a wallet was recovered from the pocket of
the accused, who answers to the name of
Elmer de Asis, containing the amount of
P350.00 in cash and the driver's license of
the victim, Victor Peregrino together with
the latter's picture.
The trial court found both accused guilty
of the crime of Robbery with Homicide and
sentenced them as follows:
ACCORDINGLY,
judgment
is
hereby
rendered convicting both accused ELMER
DE ASIS y MENESES and DANILO
MERCADO
y
ADORABLE,
beyond
reasonable doubt as co-principals of
Robbery with Homicide charged in the
information, as defined and penalized in
Article 294 (1) of the Revised Penal Code,
and in accordance therewith, in relation to
Section
18,
Bill
of
Rights,
1987
Constitution and Article 63 of the Revised
Penal Code, there being no mitigating or
aggravating
circumstances
which
attended the commission of the offense,
both of the said accused are each
sentenced
to
suffer
the
penalty
of reclusion
perpetua, with all
the
accessory penalties provided by law, and
to pay their proportionate costs against
each of them. No award for civil liability
shall be made in this judgment in favor of
the private complainants, the heirs of
Victor Peregrino, since they have reserved
their right to file a separate civil action for

damages. Both accused being detained

and comformably with the practice in the
Quezon City Jail for all detention prisoners
to agree in writing that they be governed
by the same rules pertaining to convicted
prisoners, they are credited with the full
extent of their detention.
SO ORDERED. 4
Hence, this appeal.
Accused-appellants raised the following
errors committed by the trial court:
I
IN NOT GRANTING THE MOTION FOR
PRELIMINARY INVESTIGATION FILED BY
THE ACCUSED-APPELLANTS THEMSELVES.
II
IN NOT HOLDING THAT THE SO-CALLED
EYE-WITNESSES, TAXI DRIVERS ANTONIO
BAUTISTA AND ROGELIO MIRANDA, WERE
ELEVENTH-HOUR
WITNESSES
AND
THEREFORE LACKED CREDIBILITY.
III
IN NOT HOLDING THAT IT WOULD HAVE
BEEN INHERENTLY IMPROBABLE FOR THE
SAID SO-CALLED EYE-WITNESSES TO HAVE
IDENTIFIED THE ACCUSED-APPELLANTS
CONSIDERING
THE
ENVIRONMENTAL
CONDITION OF THE PLACE OF THE
COMMISSION OF THE CRIME.
IV
IN NOT HOLDING THAT THE TESTIMONIES
OF THE SAID WITNESSES CONTAIN
IRRECONCILABLE INCONSISTENCIES ON
MATERIAL POINTS WHICH CAST DOUBT ON
THE GUILT OF THE ACCUSED-APPELLANTS.
V
IN NOT HOLDING THAT THE PRESENCE OF
THE ACCUSED-APPELLANTS NEAR THE
SCENE OF THE COMMISSION OF THE
CRIME HAS BEEN FULLY EXPLAINED BY
THEM BY COMPETENT AND UNREBUTTED
EVIDENCE.
VI
IN MAKING MUCH OF THE FACT THAT
ACCUSED-APPELLANT ELMER DE ASIS DID
NOT TESTIFY TO CORROBORATE THE
STORY OF ACCUSED-APPELLANT DANILO
MERCADO THAT THE LATTER WAS MAULED
WHILE THEY WERE GOING TO THE
STA. TERESITA HOSPITAL, DESPITE THE
FACT THAT THIS HAS BEEN ESTABLISHED
EVEN BY THE EVIDENCE FOR THE
PROSECUTION ITSELF.
Each and every assigned error will be
analyzed and answered sequentially.

Accused-appellants contend that the trial

court acted with grave abuse of discretion
amounting to lack of jurisdiction in not
granting their motion for preliminary
investigation.
We find no merit to this contention. In fact
accused-appellants are in estoppel from
claiming lack of preliminary investigation
after they allowed themselves to be
arraigned on August 23, 1992 and pleaded
"not guilty" to the charges without
invoking their right thereto thereby
waiving the same. Its absence does not go
to the jurisdiction of the court but merely
to the regularity of the proceedings. 5 It
should be invoked prior to or at least, at
the time of the plea. 6
As to the allegation that prosecution
witnesses, Antonio Bautista and Rogelio
Miranda are "eleventh-hour witnesses,"
whose names do not appear in the list of
witnesses cited in the information, suffice
it to say that it is up for the prosecution to
determine who should be presented as
witnesses on the basis of its own
assessment of their necessity. 7
We find nothing irregular in their
presentation as prosecution witnesses.
Their non-inclusion in the list of witnesses
is of no moment. In fact the omission of
their names in the list of prosecution
witnesses in the information is commonly
practiced for their own protection at least
until the termination of the case.
In the case of People vs. Mandapat, 8 the
Court ruled:
. . . there is nothing that could prevent the
prosecution from presenting witnesses in
court not listed in the information, as it is
well-settled that the court has the
undisputed right to call on a witness
whose name does not appear in the list of
the fiscal, unless the omission of said
witness is intentional and tainted with bad
faith (People vs. Martinez, 127 SCRA 260
[1984]; People vs. Valera, 15 SCRA 164
[1965]. The established rule is that the
prosecution may call unlisted witnesses to
testify (People vs. Quebral, 1 SCRA 414
[1961]).
Moreover, the purpose of the listing of the
names of the witnesses in the complaint
or information is merely to avoid the
presentation of surprise witnesses and to
enable the defense to examine their

record, morality and character, but once

placed on the witness stand, it can no
longer be disputed that the defense has
already the opportunity to examine the
character and credibility of the unlisted
witness (People vs. Morado, 4 SCRA 292
[1962]. Finally, it is beyond question that it
is the prosecution's privilege to present
such number of witnesses it deems
sufficient (People vs. Quebral, 134 SCRA
425 [1985]).
The third and fourth issues which concern
the credibility of the witnesses are
interrelated and for convenience shall be
discussed jointly.
Jurisprudence teaches us that where the
issue is one of credibility of witnesses,
appellate courts give due weight to the
findings of fact of the trial courts as they
are in the better position to examine the
witnesses before them as well as observe
their demeanor and manner of testifying. 9
While it is true that no prosecution witness
categorically
testified
having
seen
appellants actually stab and rob the
victim, the confluence of events leading to
the arrest of accused-appellants as
testified to by the prosecution witnesses
leads to no other conclusion that they, and
no other, committed the crime imputed to
them.
Thus,
prosecution
witness
Antonio
Bautista, a taxi driver, testified that while
eating in a restaurant located at Speaker
Perez St. and Quezon Avenue, Quezon
City, at around 1:40 A.M. of July 29, 1991,
he heard somebody shout, "hold-up, holdup," from a taxi that suddenly stopped
about six (6) meters away. He stood up
and saw two (2) persons immediately
alight from the taxi and whom he
identified in court. His testimony is as
follows:
Q In the early morning of July 29, 1991 at
around 1:40, do you remember where you
were at that time?
A Yes, Sir.
Q Will you state to the Honorable Court
where you were at that time?
A I was eating at the restaurant at the
corner of Speaker Perez Street and Quezon
Boulevard, Quezon City.
Q Where is that restaurant located in
particular in the corner of Speaker Perez
Street and Quezon Avenue, Quezon City?

A There is no name.
xxx xxx xxx
Q Beside (sic) the bus terminal, what other
establishment is situated in the corner of
the street?
A I was with somebody. We were eating.
Q Now, while you were eating together
with that somebody you mentioned, what
happened?
A While we were eating I heard somebody
shout "Hold-up."
Q From whom did you hear that word?
A From inside a taxi.
Q From the place where you were eating,
how far was the taxi from you?
A Six (6) meters, sir.
Q And what was your reaction?
A I stood up.
Q You stood up and what?
A And what I saw two (2) persons alighted
from the taxi.
Q What did you do when you saw these
two (2) persons alighted (sic) from the
taxi?
A I shouted to ask help from my other
companions.
Q Now, when you heard that word "Holdup" and you said you heard it from the
taxi, did you see who shouted that?
xxx xxx xxx
FISCAL BAUTISTA:
Who was that person?
A The taxi driver being held up.
Q What kind of taxi was that?
A Rocalex Taxi.
Q After that, you said two (2) persons
alighted from the taxi. You stood up and
what did you do ? No, I withdraw that.
What did the two (2) persons do?
A After coming out from the taxi, they run
(sic) away, sir.
Q To what direction.
A To Quiapo direction.
Q What did you do?
A I shouted many times to my
companions, because we were many then,
my co-drivers. One of my co-drivers heard
me and so he started his taxi.
Q If those two (2) persons who
immediately alighted from the taxi when
you heard hold-up are present in the
courtroom, will you kindly stand up and
point the persons to the Honorable Court?
COURT INTERPRETER:

Witness pointed to the person who when

asked answered that he is Danilo Mercado,
one of the accused in this case.
COURT:
The other one who alighted.
FISCAL BAUTISTA:
The other one?
COURT INTERPRETER:
Witness pointed to Elmer de Asis, another
accused in this case.
xxx xxx xxx
FISCAL BAUTISTA: (to the witness)
So, you said that you and others chased
the two (2) accused, what happened when
you chased them ?
A We were able to overtake the taller one
and because the taxi could not go up to
the pavement, the taxi went to and pro
(sic).
xxx xxx xxx
FISCAL BAUTISTA: (to the witness)
How about the other one?
A The other one went towards Mayon and
was chased by Rubi Taxi.
COURT: (to the witness)
Mayon Street?
A Yes, your Honor. 10
Rogelio Miranda, another taxi cab driver,
and who was with Antonio Bautista at the
time
of the
incident in question
corroborated the latter's testimony.
Q While you and your companion Antonio
Bautista were eating merienda was there
any unusual incident that happened?
A Yes, Sir.
Q What incident?
A Suddenly, a Rocalex taxi stopped and
somebody shouted hold up, hold up.
Q Did you notice where the taxi come (sic)
from?
A Coming from Quezon City going to
Manila.
xxx xxx xxx
Q When you heard the shout hold up, hold
up what did you notice from the taxi. Did
you look at it?
A Yes, we approached the taxi and I saw
that there was a rumble inside the taxi.
Q How many persons did you see inside
the taxi.
A Three (3) persons including the driver.
Q Did you see where the two (2)
passengers were seated?
A Yes, one (1) in front and one (1) at the
back.

xxx xxx xxx

Q So when you stood up what did you do
together with Antonio Bautista?
A We approached the taxi, suddenly the
passengers went out from the taxi and
faced us, one holding a knife.
Q There were two (2) persons who get
(sic) out from the taxi, will you describe
her physical appearances?
A The one seating in front is taller.
Q How about the one seating at the back?
A He is smaller.
Q Who was holding the knife when the two
(2) get (sic) out from the taxi?
A The taller one.
Q Now if those two (2) persons you saw
get out from the taxi are present in the
courtroom will you kindly point out their
persons to the Court?
A Yes, sir.
xxx xxx xxx
INTERPRETER:
Witness is pointing to a person who when
asked his name answered that he is Danilo
Mercado, one of the accused in this case
and the other person who when asked his
name also answered that he is Elmer de
Asis also one of the accused in this case.
Q Now that you identified the two (2)
accused, who between the accused is the
one who get (sic) out from the front seat
with
a
knife?
A The one wearing orange T-shirt, Danilo
Mercado.
Q Who is the other one who get (sic) out
from the back seat?
A The one in green T-shirt, Elmer de Asis.
xxx xxx xxx
Q When they ran away from what did you
do next?
A I take (sic) my taxi and chased them.
Q Antonio Bautista your companion
chased them in (sic) foot while you take
(sic) your taxi and chased them?
A Yes, sir.
Q Now going back to the taxi Rocalex,
when you heard a shout hold up, hold up
did you notice who shouted that word?
A Yes, sir. The driver of Rocalex who died.
xxx xxx xxx
Q Were you able to apprehend the two (2)
accused?
ATTY. BORLAS:
Leading, Your Honor.

COURT:
May answer.
A The one who is smaller we were able to
apprehend,
the
taller
one
was
apprehended by Antonio Bautista and his
companions. 11
Rodrigo Austero, Barangay Tanod of
Barangay Teresita, Quezon City and who
was on duty at that time testified, thus:
Q Sometime in the early morning of July
29, 1991, do you remember where you
were at that time?
A I was at our outpost.
xxx xxx xxx
Q Who were with you at that time, if any?
A Mariano Perez, Joseph Gumarag, Tuao.
xxx xxx xxx
Q Who were left with you at the outpost?
A Mariano Perez and myself, sir.
Q You stated that while you two (2) were
in the outpost something happened. What
was that?
A At around 1:40 a.m., somebody shouted
"Holdupper, Holdupper."
Q How far is that, somebody whom you
heard shouting "Holdupper, Holdupper"
from your outpost?
A About twenty (20) meters away, sir.
Q How many were there shouting
"Holdupper, Holdupper", if any you know?
A About ten (10) person including two (2)
taxi drivers whom I don't know.
Q You made mention that you heard
somebody
shouting
"Holdupper,
Holdupper", and they were twenty (20)
meters away. What were they doing while
they
were
shouting
"Holdupper,
Holdupper", those persons?
A They were chasing the two (2) persons.
xxx xxx xxx
Q When you saw them coming in your
direction at about twenty (20) meters you
said, what did you do?
A We accosted the two (2) men. One is
Elmer De Asis. Mariano Perez chased the
other one who ran away.
xxx xxx xxx
Q You said you introduced yourself as
barangay tanod. And what did you do after
introducing yourself as barangay tanod.
A I got one of them, sir.
Q You got one of them. Who is that the
person whom you got?
A Danilo Mercado, sir.

Q You mentioned of Danilo Mercado. He

was one of those two (2) persons who was
being chased by those people?
A Yes, sir.
Q Now, can you stand up, Mr. Witness, and
point the person to us of Danilo Mercado,
if he is present in the courtroom?
A COURT INTERPRETER:
Witness pointed to the person of Danilo
Mercado, one of the accused in this case.
FISCAL BAUTISTA: (to the witness)
When you got Danilo Mercado from the
people, what did you find out, if any?
A I got from his right pocket a knife, sir.
Q What did you do with the knife? Did you
inspect it?
A I inspected it, sir. I found out that it was
blooded (sic).
Q I am showing to you, Mr. Witness, earlier
evidence which has already been marked
as Exhibit C for the prosecution. Kindly
inspect the same and tell this Honorable
Court what relation this thing with the one
you found in the possession of Danilo
Mercado?
A This is the one that I got from him, sir. 12
Mariano Perez, another barangay tanod
and companion of Rogelio Miranda, caught
the other accused Elmer de Asis. His
testimony is as follows:
Q Now, do you remember if anything
unusual transpired while you were there at
Cuenco Street, Barangay Sta. Teresita,
Quezon City?
A Yes, sir.
Q What transpired, what happen (sic), if
any?
A Elmer de Asis was running.
ATTY. OPEA:
There is no basis for the mentioned for my
client (sic).
COURT:
Answer:
A Elmer de Asis was running coming from
Cuenco Street, and I chased him.
FISCAL BAUTISTA:
Q Did you see (sic) if there were any
companion at the time of Elmer de Asis?
A Yes, sir.
xxx xxx xxx
Q If Elmer de Asis and his companion at
that time who was running is in the
courtroom, will you kindly point to the
court who were they?

A That one. (Witness pointing to accused

Danilo Mercado).
Q You said that the two were running, did
you come to know why they were running?
xxx xxx xxx
A They held up somebody.
xxx xxx xxx
FISCAL BAUTISTA:
Q Now, the taxi driver you testified, where
he was chasing the two, what else did you
see?
xxx xxx xxx
A I saw Elmer running so I chased him. I
pursued him up to Kanlaon Street, I
cornered him at Kanlaon corner Laon-laan.
xxx xxx xxx
Q After apprejending (sic) Elmer de Asis,
what happen (sic) next, what did you do?
A I frisked him, I recovered from him a
wallet containing P350.00.
Q I show to you this wallet already marked
as Exhibit D, what relation (sic) this wallet
(sic) with the one you found from the
pocket of Elmer de Asis?
A This wallet was the one I recovered from
him (witness pointed to accused de Asis),
there was a license.
Q You examined the license you found
inside the wallet?
A Yes, sir.
Q I am showing to you Exhibit D-3, what
relation (sic) this exhibit with the one you
found inside the wallet?
A This is the one.
Q Is that the license?
A Yes, your honor.
COURT:
Q Whose license is that? Did you come to
know whose driver's license was found
inside the wallet?
A Taxi driver.
FISCAL BAUTISTA:
Q How did you come to know that it was
the license of the taxi driver?
A It is found inside the wallet, sir.
xxx xxx xxx
FISCAL BAUTISTA:
Q Did you . . . what did you do after
apprehending Elmer de Asis?
A I brought him to the police precinct.
xxx xxx xxx
Q Did you execute . . . You mentioned a
while ago money you found inside the
wallet, I am showing to you cash money
amounting to P350.00 which is already

marked in bunch as Exhibit D-2, what

relation (sic) this money (sic) which you
found inside the wallet?
A This is the money I found.
Q You said you were investigated by the
Police, why were you investigated?
A Because I brought Elmer de Asis
there. 13
Clearly, from the testimonies of taxi
drivers Antonio Bautista, Rogelio Miranda
and Barangay Tanods Rodrigo Austero and
Mariano Perez, the following facts were
indubitably established as contended by
the Solicitor General:
1. That accused-appellants were seen
immediately alighting from the taxi driven
by the victim after the latter parked at the
middle of the road shouting, "holdupper,
holdupper."
2. That the victim's wallet containing his
driver's license was recovered from
accused-appellant Elmer de Asis after a
long chase; while from accused-appellant
Danilo Mercado, a bloodstaind knife,
Exhibit "C", was recovered immediately
after the latter's arrest and apprehension.
3. And the victim, Victor Peregrino, the
driver of the Rocalex Taxi, who was found
bloodied inside his taxi was found to have
sustained three (3) stab wounds and one
(1) incised wound resulting in cardiorespiratory arrest causing his death due to
shock and hemorrhage secondary to stab
wounds.14
The prosecution witnesses could not have
been mistaken in their identification of the
accused-appellants as the place where
they were eating is well lighted by a
fluorescent lamp and by another one at
the corner of Speaker Perez and Quezon
Avenue. 15 It has been held that where
conditions of visibility are favorable and
the witness does not appear to be biased,
assertions as to the identity of the
malefactor
should
normally
be
accepted. 16
Inconsistencies and contradictions in the
testimony of the prosecution witnesses
which refer to minor details do not affect
the
credibility
of
prosecution
witnesses. 17 On the contrary, they bolster
rather than emasculate a person's
credibility, as one cannot be expected to
remember an incident with unerring
accuracy in minute detail. 18

Accused-appellants' explanation that they

were on the way to the Sta. Teresita
Hospital
where
accused-appellant
Mercado's mother works as a security
guard, in justification for their presence
near the scene of the incident is too flimsy
and
puerile
to
deserve
serious
consideration in the face of their
unexplained possession of the victim's
wallet and a bloody knife right after their
arrest.
Lastly, accused-appellant contend that the
fact that accused-appellant de Asis did not
corroborate the story of Mercado that the
latter was mauled on their way to the Sta.
Teresita Hospital should not have been
taken against the defense.
Apparently,
accused-appellants
are
unaware on how evidence are weighed.
That conviction of an accused is based on
the strength of the prosecution's evidence
and not on the weakness of the defense,
and that failure of an accused to take the
witness stand cannot be taken against
him. 19
We cannot but notice the solid and strong
circumstantial evidence pointing to the
guilt of the accused-appellants. There is
more than one circumstance; the fact from
which the inference are derived were
proven; and the combination of all the
circumstances is such as to produce a
conviction of guilt beyond reasonable
doubt. 20 It is not solely on the absence of
the corroborating evidence of one of the
accused that conviction was based. With
or without the corroborating testimony of
accused-appellant Elmer de Asis, still
conviction will lie.
WHEREFORE, finding accused-appellants
guilty beyond reasonable doubt, the
appealed decision is hereby AFFIRMED in
toto.
SO ORDERED.
G.R. No. 10905 December 9, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
CASIANO
MARFORI, defendantappellant.
Eusebio
Orense
for
appellant.
Attorney-General Avancea for appellee.
CARSON, J.:
The defendant and appellant in this case
was convicted in the court below of the

crime
of injurias
graves(aggravated
slander), and sentenced to six months and
one day of destierro (banishment) for a
distance of 25 kilometers from the
municipality where the
crime
was
committed, to pay a fine of P65, together
with subsidiarydestierro as prescribed by
law on failure to pay this fine, and to pay
the costs.
The complaint charges the accused with
having spoken of the complaining witness
in a manner which reflected adversely
upon her virtue and good name, in the
presence of several witnesses.
The complaint was originally filed in the
court of a justice of the peace who held a
preliminary investigation and discharged
the accused on the ground that he was not
guilty of the crime with which he was
charged. The justice of the peace appears
to have been of opinion that the crime
of injurias
graves had
not
been
committed, and that it was a mere
misdemeanor of the class defined and
penalized in book 3 of the Penal Code.
A report of the proceedings was forwarded
to the provincial fiscal by the justice of
peace, and the complaining witness
having renewed the complaint in the Court
of First Instance, an information was filed
in that court and the accused brought to
trial thereon without further proceedings.
Upon arraignment, when the accused was
called upon to plead, counsel for the
accused respectfully declined to proceed,
on the ground that the court was without
jurisdiction to bring the accused to trial,
no order remainding the accused for trial
having been issued by a competent
magistrate as a result of a preliminary trial
held in accordance with law.lawphi1.net
The trial judge appears to have been of
opinion that the report of the proceedings
had at the preliminary trial held by the
justice of the peace disclosed a reasonable
probability that the crime charged had
been committed and that the accused had
committed it; that the justice of the peace
had erred in discharging the accused; and
that he should have remanded the
accused for trial. Basing his action on
these grounds, he overruled the objections
of counsel, and ordered the parties to
proceed with the trial.

Counsel for the accused there and then

excepted to the ruling of the court,
insisted on the right of the accused to a
preliminary trial as prescribed by law; and
when called upon to plead, the accused
stood mute, so that the court was
compelled to direct the entry of a plea of
not guilty in his behalf.
Counsel for appellant reiterates in this
instance his contention in the court below,
and the Attorney-General moves this court
to reverse the judgment convicting and
sentencing the accused and remand the
record to the trial court for further
proceedings, according to law.
We have held heretofore that preliminary
investigations in criminal cases may be
waived, and that waiver will be presumed
unless timely objection is made when the
accused person is brought to trial. But, in
the absence of such a waiver, the law
expressly secures the right to a
preliminary trial to all persons in these
Islands charged with crimes cognizable in
courts of first instance, except in the city
of
Manila,
where
an
investigation
conducted by the prosecuting attorney in
the manner prescribed by law may be
substituted therefor. (See G. O. 58, secs.
13 and 14 and Act No. 1627, sec. 37.)
It is not necessary at this time to enter at
length upon a consideration of the reasons
which moved the lawmakers to make
provision
for
these
preliminary
investigations; it is sufficient to indicate
that they are intended to secure the right
to every person charged with crime to be
free from the inconvenience, expense and
burden of defending himself in the course
of a formal trial until the reasonable
probability of his guilt has been passed
upon in a more or less summary
proceeding by a competent officer
designated by law for that purpose; and
that they are intended further to guard the
state from the burden of unnecessary
expense involved in holding trials based
on false, frivolous or groundless charges.
The right of an accused person to a
preliminary
investigation
before
a
committing magistrate, or within the city
of Manila, to the proceeding substituted
therefor by law, is a substantial one. Its
denial, over the objection of the accused,
is prejudicial error, in that it subjects the

accused to the loss of life, liberty, or

property without due process of law.
The record in this case clearly discloses
that the accused in the case at bar was
brought to trial, over his objection, without
having been committed or remanded for
trial by an investigating magistrate. The
justice of the peace who held the
preliminary investigation dismissed the
original complaint against the accused,
being of opinion that there was no
probable cause to believe him guilty of the
offense with which he was charged; and
although a so-called "report" of the
proceedings was forwarded to the fiscal,
and doubtless submitted to the trial judge,
original jurisdiction to commit the accused
for trial as result of those proceedings
was vested exclusively in the justice of the
peace before whom they were had.
Then order of the justice of the peace
discharging the accused did not operate
as a final acquittal, and was not a bar to
the rearrest of the accused and his
prosecution for the offense with which he
was originally charged. If the fiscal was
not satisfied with the action of the justice
of the peace in the premises, he could
have secured the arrest of the accused
upon a new complaint, and sought an
order remanding the accused for trial, in a
second preliminary investigation had
before either the justice of the peace who
held the first investigation or before the
judge of the Court of First Instance in the
exercise of his functions as a committing
magistrate. (Act No. 1627, sec. 37.) But it
would manifestly defeat the end sought to
be attained by the provisions of law for the
holding of preliminary investigations if
either the fiscal, or the trial judge, or both
acting together were permitted to make
use of the record of the proceeding had
before a justice of the peace, at a
preliminary trial, as a result of which the
accused was discharged, for the purpose
of bringing the accused to trial, despite
the order of discharge, and over his
objection based on the ground that he has
not been remanded fro trial as a result of a
preliminary trial.
The judgment convicting and sentencing
the accused of the crime with which he is
charged should be reversed with the costs
of both instances de officio and the record

remanded to the court below, for such

further proceedings as may be proper in
the premises. So ordered.
G.R. No. L-29590 September 30, 1982
PHILIPPINE
REFINING
CO.,
INC. petitioner,
vs.
COURT
OF
APPEALS,
SOCIAL
SECURITY
COMMISSION,
SOCIAL
SECURITY
SYSTEM,
BUKLOD
NG
MANGGAGAWA and VICENTE GARCIA,
respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of
the Court of Appeals affirming a resolution
of the Social Security Commission which
declared that respondent Vicente Garcia
and
22
workers
represented
by
respondent Buklod Ng Manggagawa are
employees of the Philippine Refining
Company for purposes of compulsory
coverage under the Social Security Act, as
amended.
The Philippine Refining Company is
engaged in the business of extracting and
refining oil from copra and using the
refined oil in the manufacture of various
products.
Respondent
Vicente
Garcia
started
working for the company in 1922 as a
copra carrier. In 1931, he was promoted to
foreman with 21 or 22 men working under
him. By 1948, these men were employed
under pakiao arrangements but the
company paid the workers directly and the
function of their foreman insofar as wages
were concerned was to distribute the
money. The pakiao workers unloaded
copra from trucks or carriers, stored it in
the company warehouses at Isaac Peral
Street now United Nations Avenue, Manila
and delivered copra from the warehouses
to the company's Mill Day Bin. In 1955,
the pakiao arrangement were formalized
in writing through a series of written
agreement and Garcia, the former copra
carrier and foremen, was given the
authority to choose and hire the men to do
the work assigned to him. Instead of the
company paying the workers directly with
Garcia merely distributing their wages, the
work was compensated on a volume basis
at so many centavos per metric ton
handled by all of them in the various

phases of the job - receipt, storage, and

distribution of copra - with the money
being given to Garcia.
The work of the 22 laborers represented
by the respondent union is an essential,
permanent and indispensable process in
the business of the petitioner company. It
is not an incidental or one time operations
such as construction a company facility or
repairing a plant or machinery where the
workers' job ends upon completion of the
project. Copra is the basic raw material in
the manufacture of lard, cooking oil, soap,
and various other products of the
employer company and its handling,
storage, and distribution are an integral
part of company operations.
When the Social Security Act was
implemented on September 1, 1957 and
up to April 27, 1961 when the respondent
Labor union filed a petition for compulsory
coverage
with
the
Social
Security
Commission,
the
Philippine
Refining
Commission took no steps to report the 22
workers to the SSS for coverage in the
belief the Vicente Garcia was an
independent contractor and the workers
he employed pursuant to the pakiao
agreement were his own employees for
whom the company was not accountable
in any manner.
The argument of the petitioner and the
findings of the Social Security Commission
are summarized by the Court of Appeals
as follows:
The Philippine Refining Company contends
that the petitioners are not its laborers,
because:
1. It did not select, much less hire them.
2. Vicente Garcia pays their wages.
3. Vicente Garcia has control and
supervision over them.
4. They do not have any service record on
file with the company.
5. They are not in the payrolls of the
company.
6. They are not members of the union with
whom the company had entered into a
collective bargaining.
On the other hand, the Social Security
Commission maintains that:
1. Vicenta Garcia is not a bona fide
contractor; he cannot carry on the burden
of social security.

2. He is subject to the control of the

company as to result.
3. He has no investment of his own; he
assumes no risk of loss.
4. He merely sells his labor to the
company.
5. The equipment used by the petitioners
belong to the company.
6. He collects from the company the salary
of petitioners.
7. The service rendered constitutes an
integral part of the business operation of
the company.
8. He services nobody but the company.
The grounds for this petition are:
First.
That the finding of the respondent Court of
Appeals that an employer-employee
relationship exists between the petitioner
and Vicente Garcia and his workers,
notwithstanding the intervention of said
Vicente Garcia as an independent
contractor is contrary to the law and the
evidence;
Second.
That the finding of the respondent Court of
Appeals that respondent Vicente Garcia
cannot be considered an independent
contractor for the purpose of Social
Security coverage is contrary to the
evidence and established jurisprudence;
Third.
That the finding of the respondent Court of
Appeals that petitioner has reserved
general control or supervision over the
work of Vicente Garcia's workers is
contrary to the evidence;
Fourth.
That the finding of the respondent Court of
Appeals that the, services rendered by
Vicente Garcia's men constitute an
integral part of the industrial operation of
the ompany is contrary to the evidence;
Fifth.
That the respondent Court of Appeals
acted contrary to the law in ordering
Vicente Garcia and his men to be covered
under the Social Security System.
It is understandable why the petitioner
company, in the early years of the social
security program in the Philippines, should
have seriously contended that the 22
affected workers are not its employees.
There were apprehensions at the time that
the Philippine economy was not strong

enough to shoulder the burden of social

insurance and that money diverted to
social ends would have been more useful
if
channeled
to
production
and
investment, Among the devices adopted
by some employers to avoid the financial
obligations not only of social security but
other social and labor legislations was the,
independent contractor technique.
However, all of the above is behind us
now. All major employers have accepted
the fact, if not the wisdom, of social
security.
Protection
and
compulsory
coverage through successive amendments
to the 'law, have become more and more
universal while benefit payment have
increased. The Constitution now mandates
in Article II, Section 7 that "The State shall
establish, maintain, and ensure adequate
social services in the field of .... social
security to guarantee the enjoyment by
the people of a decent standard of living."
There is a strong presumption in favor of
greater
coverage
and
protection.
Consequently, We subject all assertions
that
an
intervening
entity
is
an
independent contractor to intense and
rigorous scrutiny.
As stated in Social Security System vs.
Court of Appeals (26 SCRA 458, 468):
Only thus could there be fealty to the
purpose and objective of the act. If it were
otherwise, what is manifested is betrayal
instead.
That is not to comply with judicial duty,
which in the construction of statutes is to
foster the legislative intent, not to
frustrate it. When as in the case of the
Social Security Act, it is indisputable that
the employer-employee relationship is, as
is desirable, made to reflect the realities of
the situation, any construction that would
yield the opposite finds no justification.
That such should be the case becomes
more evident considering that the statute
was undoubtedly enacted to promote
social justice and protect labor. Whenever
a question as to its applicability comes up
then, the utmost care should be taken lest
by inattention or insufficient awareness of
the ways and methods of big business,
undoubtedly prompted by what to it is
legitimate
defense
against
any
governmental measure likely to curtail
profits, the gains expected to be conferred

on labor be disminished, if not entirely

nullified.
At the same time, the possibility that a
company may use bona fide independent
contractors to undertake certain projects
or to furnish certain requirements of its
business is not entirely discounted. In
ascertaining whether or not an intervening
employer is a bona fide independent
contractor who bears the obligation of
registering his workers and paying the
employer's share of the SSS premium
contributions, We have applied the
"control" test. (Social Security System vs.
Court of Appeals, 39 SCRA 629).
Under the control test, We ascertain
whether the employer controls or has
reserved the right to control the employee
not only as to the result of the work to be
done but also as to the means and
methods
by
which
the
same
is
accomplished.
(Investment
Planning
Corporation vs. Social Security System, 21
SCRA 924; Social Security System vs.
Court of Appeals, 30 SCRA 210).
We affirm the factual findings of the Social
Security Commission, sustained by the
Court of Appeals.
Copra is the basic raw material of the
petitioner-appellant's
business.
The
company must have, and the facts show
that it has, positive and direct control over
the handling of copra immediately prior to
its being fed into the manufacturing
process. The conveyor is owned by the
company. The load it may carry and the
time and manner of its operation are
controlled by the appellant. A company
employee
ordered
the
supposed
independent contractor where to store
copra, when to bring out copra, how much
to load and where, and what class of copra
to handle. The appellant limited the
number of workers which Mr. Garcia could
hire to assure that statutory minimum
wages were paid from the lump sum
payments, given for the "pakiao " work.
Mr. Garcia had no office of his own. He had
no independent funds to pay the men
working under him. He could not work for
any other company but was completely
dependent on the appellant. Mr. Vicente
Garcia denies that he is an independent
contractor. The control test is more than
satisfactorily met.

WHEREFORE, the petition is hereby

dismissed for lack of merit. The
September 12, 1968 decision of the Court
of Appeals is affirmed with costs against
the petitioner-appellant.
SO ORDERED.
G.R. No. L-58404 April 15, 1988
PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
MARCELINO
BULOSAN, defendantappellant.
The Solicitor General for plaintiff-appellee.
Jose A. Madarang for defendant-appellant.
GUTIERREZ, JR., J.:
This is an appeal from the decision of the
then Court of First Instance of Ilocos Norte
and Laoag City, Branch V finding the
accused Marcelino Bulosan y Daguio alias
"Marcey" guilty beyond reasonable doubt
of the crime of rape and sentencing him to
suffer the penalty of reclusion perpetua, to
pay
the
offended
party
Clarencia
Calventas (now Mrs. de la Cruz) the sum of
P12,000.00 as moral damages and to pay
the costs.
The information filed against the accused
alleged:
That on or about 27 May 1978, in the
municipality of Pasuquin, province of
Ilocos Norte, Philippines, and within the
jurisdiction of this Honorable Court, the
said accused, Marcelino Bulosan, alias
"Marcey," armed with deadly sharp
pointed weapon, and by means of force
and intimidation, did then and there,
wilfully, unlawfully and feloniously lie with
and succeed in having carnal knowledge
of
offended
party,
CLARENCIA
R.
CALVENTAS, an unmarried 21 year old
woman, against the will and without the
consent of the latter, as said accused
pointed the deadly weapon on the neck of
the offended party and threatened her and
her family with death if she refused. (p. 6,
Rollo)
The
lower
court
established
the
appellant's guilt beyond reasonable doubt
on the basis of the prosecution's evidence
as follows:
With the use of a fine-toothed comb, so to
speak, in culling it from the evidence, the
Court would now summarize the version of
the complainant, Clarencia R. Calventas.

First of all, let us have a look at her person

and personal circumstances. She is
personable (like the accused). She got
married to Bienvenido de la Cruz on
September 24, 1978-after the alleged rape
on or about May 27, 1978. She was 22
years of age when she testified on
December 20, 1978, a resident of
Pasaleng, Pagudpud, Ilocos Norte, high
school graduate, and had finished a twoyear secretarial course.
She first came to know the accused in or
about the third week of April, 1978, when
the latter and his uncle went to Pasaleng,
Pagudpud, and sold salt to persons there,
including her parents with whom she lived.
Patricio Bulosan (brother of the accused)
had married Bernarda Bulosan first cousin
of her (complainant's) father. As the father
of the accused was an uncle-in-law to her,
the accused himself was somewhat of an
uncle to her.
Her boyfriend then, Bienvenido de la Cruz
(her husband now), wrote to her and
asked her to meet him on the early
morning of May 27, 1978, at what used to
be the Villarey Station in Laoag City (see
Exhs. B, B-1, B-2). So, on the morning of
May 26, 1978, she and her sister boarded
a minibus at Pasaleng and went to Loaog
City, arriving there between 1:00 and 2:00
P.M. To pass the time, she decided to visit
her aunt, Bernarda Bulosan (first cousin of
her father and sister-in-law of the
accused), at Nagsanga, Pasuquin (her
aunt's residence), as her aunt had
previously invited her to go there. She
reached the poblacion of Pasuquin
between 3:00 and 4:00 o'clock that
afternoon, riding by minibus. Nagsanga is
a barangay north of the poblacion. She
was in front of the market compound in
the poblacion when the accused saw her
and asked her where she was going. She
answered that she was going to visit her
aunt Bernarda.
The accused called a tricycle on which she
and the accused rode together to
Nagsanga. When they reached the place,
the accused told her that her aunt was not
at home yet and that he could show her
places in the meantime. They proceeded
northwards to Sexy Beach, about a
kilometer away from Nagsanga. On the
tricycle, the accused sat behind the driver

and she was in the sidecar. Upon arrival at

the Sexy Beach about 5:00 P.M., the
accused instructed the driver to return
after an hour, telling her that her aunt
would have arrived by then. They came
upon other people on the beach. They sat
and talked at a shaded table. The accused
asked her about her boyfriend, and she
told him that she would be meeting her
boyfriend early the following morning.
The tricycle returned after about two
hours. They rode on it. When they reached
the highway, a woman boarded the
tricycle, sitting beside her. The woman
was delivered to her destination several
kilometers furhter north.
They returned back to the south. When
they were passing by Nagsanga, she told
the accused that she would alight there,
but he suggested that they had better
catch up with the last trip to Laoag City.
She agreed so that she could meet her
boyfriend early the following morning.
When they reached the poblacion of
Pasuquin, there was no ready ride
available so, she said she would have to
wait for a ride coming from Cagayan and
going to Laoag City. The accused told her
he was hungry and word like to eat first,
after which he would accompany her to
Laoag City on the tricycle. She consented,
having confidence in the accused.
They rode on the same tricycle to the
house of his sister, Corazon Caldito, in the
poblacion of Pasuquin. The accused told
the driver to return for them after they
shall have taken their supper. She and the
accused entered the house, going up to
the upper floor. His sister told him: "You
take care of matters. She did not talk to
the sister, but saw her enter a room on the
upper floor. The sister of the accused had
gone to Pasaleng to sell salt.
She and the accused entered another
room on the upper floor. The walling of the
room was of carton. It was then about
8:00 P.M. Inside the room were cooking
paraphernalia plates, clothes, a table and
a bed, among other things. The accused
set the table. He alone ate. She could not
eat, worried as she was about her
appointment with her boyfriend. As he was
eating, she read comics across the table
from him. There was a lighted gas lamp on
the table.

After he had eaten, as the tricycle had not

yet returned, she asked him if there was
some other ride for Laoag City. There was
none other, he told her.
The tricycle driver returned late that
evening, calling for the accused. The
accused went downstairs and returned to
the room with the driver. The driver told
her that the tricycle had a flat tire, but
assured her that he would bring her to
Laoag City as soon as he could fix it. The
driver left.
She and the accused then talked in the
room for more than thirty minutes. He told
her that they wait for the tricycle and that
he would also go to Laoag City to meet
her boyfriend.
The accused unrolled a mat on the floor
and lay thereon in polo shirt and shorts
(he had removed his parts). He told her to
rest on the bed. The bed was about three
meters away from the mat in the same
room. She lay on the bed in her long pants
(Exh. A) and shirt with collar (Exh. F). She
could not sleep yet as she was worried.
She must have slept because she was
awakened when the accused was kissing
her on the lips The accused was bending
down over her, with his hands pressed to
the sides of her head. She tried to bite his
lips or shoulder but no avail. She also tried
to evade his lips but she could not turn her
head aside because of his hands.
She pushed him by the shoulders.
Momentarily, she felt something cold and
pointed pressed by the accused against
her neck. She felt pain. She got nervous.
There were no more lights in the room, but
he recognized the accused. She did not
see what that cold and pointed thing was.
While he was pressing it, he said "I am
going to kill you if you do not give me a
chance, and do not shout because really I
am going to kill you and the rest of your
family. "The more she got nervous. He
even told her that he could do anything he
wanted as he was a member of the NPA.
She was then trembling.
He unfastened the hook and eye of her
pants and tried to pull it down. She
resisted by taking hold of the waistline of
her pants. The zipper of her pants was
damaged. (Exhibit A, her long pants,
shows damage at the bottom of the zipper
rendering it unworkable.) Then, she felt

something hard strike her left lower

abdomen. It must have been the accused
who struck her as there were only the two
of them. With his hands, he pressed both
sides of her lower abdomen. Her body was
numbed. She lost consciousness or at
least, became semi-conscoius. While she
was in that state of unconsciousness or
semi-consciousness, he was able to
remove her pants and panties (Exh. D).
She regained full consciousness as she felt
the pain arrising from his having inserted
his penis in her vagina. He was on top of
her, making up and down movements.
With all the strength she could muster,
she pushed him and he fell to the floor.
Then he went to the window, looked out,
and went downstairs. She put on her
panties and pants. Although the zipper of
her pants was out of order, its hook and
eye held it in place.
The accused returned and pulled her
downstairs, telling her that the ride was
already there and to keep quiet and to
follow what he dictated, otherwise she
would be harmed. The accused told her to
ride on the motorcycle (the same that
they had ridden on but without sidecar
now), saying that they would kill her, the
more that would not bring her to Laoag
City, if she made any noise or cried for
help. "The driver was the sameby the
name of Roberto Dancel (as she came to
know later). She was crying.
She was brought to Laoag City on the
motorcycle. The accused drove it, she sat
behind the accused, with Dancel behind
her. It was about 5:00 A.M. (May 27,1978)
when they reached the former Villarey
station in Laoag City. There, her brother-inlaw, Diosdado Ganaban, saw and called
her. The accused estopped the motorcycle
and told her to keep mum, otherwise he
would kill her. She ran to where her
brother-in-law was standing. Nearby was
her boyfriend, Bienvenido de la Cruz,
inside a tricycle. She boarded the tricycle.
Her boyfriend asked why she was nothing
but she did not answer, out of fear and
shame. She and her boyfriend and
brother-in-law, aside from the driver, rode
on the tricycle and went to the house of
her aunt Conchita Caday in Laoag City.
The accused and Dancel on the
motorcycle, tailed them to Id house, but

left after she and her companions entered

the house.
Her boyfriend had a fever; she gave him
medicine. They stayed in the house of her
aunt Conchita from that morning of May
27 until lunchtime of May 28,1978, when
her boyfriend had gotten well. She and her
boyfriend, her aunt Conchita and brotherin-law Diosdado went to Pasaleng,
Pagudpud, to talk with her parents about
her marriage to her boyfriend, arriving
there at about 7:00 o'clock on the evening
of May 28. Her parents were not at home
as they had gone to the sea. Only her
brothers and sisters were at home. Her
boyfriend's fever recurred. He slept in a
room on the upper floor. She slept in
another room on the same floor.
Her parents arrived at dawn of May 29,
1978, bringing home fish. Some five
minutes after their arrival, she told her
parents that the accused had abused her
in Pasuquin. They cried and asked her if
she had informed her boyfriend. Not yet,
she said. Together with her parents,
brothers and sisters, aunt Conchita and
brother-in-law Diosdado, she went upstairs
to where her boyfriend was. Her father
made the revelation to her boyfriend. The
latter was surprised. That same day of
May 29, her father went to the barangay
captain's but the captain was not in. On
the evening of that day, they reported the
matter to the PC authorities in Camp Juan,
Laoag City. That same evening, she was
examined by Dr. Artemio Carlos in the
provincial hospital in that City. She
returned to Camp Juan the following day,
May 30, when her statement (Exh. 2
pages 3-5 of the records) was taken.
By
her
calculation,
the
incident
complained of happened between 3:00
and 4:00 o'clock on the morning of May
27,1978. She said she had trust and
confidence in the accused who to her was
somewhat of an uncle. According to her,
she suffered mental anguish because of
what had happened to her.
xxx xxx xxx
Bienvenido de la Cruz, boyfriend of the
complainant at that time of the incident in
question and sometime thereafter (now
her husband), testified on November 28,
1978 (the accused having been arraigned
on October 13, 1978). He was cross-

examined by the two defense counsel.

One after the other. The accused was
present in Court. Bienvenido corroborated
the complainant's testimony from the time
that they met in Laoag City on the early
morning of May 27, 1978, until their going
to the PC authorities and the provincial
Hospitalincluding, of course, their going
to Pasaleng, Pagudpud, and the revelation
there made to him by the complainant's
father.
Corroboration came also from Dr. Artemio
Carlos, resident physician of the Ilocos
Norte Provincial Hospital in Laoag City who
examined the complainant in said hospital
on the evening of May 29,1978, at about
8:30 o'clock. He confirmed the findings
stated in the medical certificate that he
issued (Exh. E, page 2 of the records). His
findings on the complainant were:
a. contusion at the left lilac region or left
lower abdomen;
b. old laceration of the vaginal canal
between 6:00 and 7:00 o'clock; and
c. vagina negative for spermatozoa."
(Rollo, pp. 7-11).
Appellant Bulosan raised the following
assignments of errors in this appeal:
I
THE TRIAL COURT ERRED IN TAKING
COGNIZANCE OF AND TRYING THE
INSTANT CASE IN THE FACE OF IMPROPER
AND/
OR
INCOMPLETE
PRELIMINARY
INVESTIGATION AND, THEREFORE, SAID
COURT HAD NO JURISDICTION AND/OR
VIOLATED PROCEDURAL RULES.
II
THE TRIAL COURT ERRED IN GIVING
CREDENCE
TO
THE
VERSION
OF
COMPLAINANT, CLARENCIA R. CALVANTES
TO THE EFFECT THAT SHE WAS RAPED BY
ACCUSED, MARCELINO BULOSAN ON THE
EARLY MORNING OF MAY 27,1978, IN THE
POBLACION OF PASUQUIN, ILOCOS NORTE,
IN THE HOUSE OF CORAZON BULOSANCALDITO, SISTER OF SAID ACCUSED. (Brief
for Accused-Appellant, p. 5)
The appellant contends that he was
denied due process because the municipal
judge allegedly did not conduct the
second stage of preliminary investigation
under Sec. 10 Rule 112 of the former
Revised Rules of Court. It should be noted
that very often the first stage knowm as
the preliminary examination is merged

with the second stage or preliminary

investigation proper to form part of one
integrated proceeding.
The appellant's contention is without
merit.
We agree with the observations of the
Solicitor General which are supported by
the records of the case. The Solicitor
General states:
The records show that appellant was
afforded a preliminary investigation in the
Municipal Court of Pasuquin, Ilocos Norte.
It will be recalled that complainant filed
her complaint against appellant before the
Municipal Court of Pasuquin on June 6,
1978. After conducting the preliminary
investigation, Municipal Judge Pablo R.
Galva issued the warrant of arrest for the
apprehension of appellant, and, on August
14, 1978, elevated the case to the Court
of First Instance of Ilocos Norte. On August
15,1978,
assistant
Provincial
Fiscal
Garvida filed the information based upon
the
complaint
originally
filed
by
complainant.
Clearly, therefore, appellant having been
afforded a preliminary investigation in the
Municipal Court of Pasuquin, to insist on
another one would be to ask for what is
a fait accompli.
Appellant bewails the absence in the
information filed by Fiscal Garvida of a
certification under oath that the Fiscal has
examined the complainant and her
witnesses as required by Presidential
Decree No. 77 dated December 6, 1972.
Appellant's reliance on P.D. No. 77 is
misplaced. The said decree applies only to
preliminary investigations conducted by
Fiscals not those by the Courts. (Tabil and
Simbajon v. Hon. Ceferino T. Ong, et al., 91
SCRA 451). As earlier stated, the
preliminary investigation in this case was
conducted by the Municipal Court of
Pasuquin and not by the Fiscal.
When nothing appears affirmatively upon
the
record
that
such
preliminary
investigation has not in fact conducted, an
objection on the ground of denial thereof
will not be sustained, for it will be
presumed that the court proceeded in
accordance with law (People v. Casiano,
111 Phil. 73 (1961). (Rollo, pp. 95-96)
Moreover, the alleged denial of the right to
the second stage of the preliminary

investigation was never raised before the

trial court. (See People v. Cierbo, 143
SCRA 689). As held in the case of People v.
Monteverde, (142 SCRA 668, 672):
...
while
generally,
a
preliminary
investigation
is
mandatory
and
a
certification that such investigation was
held is required, still this rule does not
apply if the issue is raised only after
conviction. Thus, it has been held that
after a plea of not guilty to the
information, an accused is deemed to
have foregone the right of preliminary
investigation and to have abandoned the
right to question any irregularity that
surrounds it (See Zacarias v. Cruz, 30
SCRA 728, People v. Beltran, 32 SCRA 71.
See also People v. Arbola, L-16936, Aug 5,
1985).
The appellant advances the theory that
the filing of rape charges against him was
due to the jealousy of the victim's
boyfriend (now her husband) Bienvenido
de la Cruz. He alleged that de la Cruz was
so jealous upon seeing the victim alight
from the motorcycle driven by the
accused, that de la Cruz boxed the victim.
The accused alleges that this accounts for
the contusion appearing in the medical
examination findings.
Accused Bulosan testified:
a. Her boyfriend said. "Vulva of your
mother, where did you sleep last night. We
agreed that you come and see me.
q. What more?
a. At the same time, her boyfriend held
her hands and knocked the lower portion
of her abdomen, sir.
q. Which part of the lower portion, left or
right?
a. The left side of the lower portion of her
abdomen, sir.
q. After the incident, what did Clarencia
do?
a. Clarencia bowed her head and her
boyfriend led her inside the tricycle, sir. (p.
532, TSN, December 20,1978)
We cannot lend credence to the
appellant's theory.
The appellant himself testified that he is
treated well by the family of the offended
party. (tsn, January 8, 1980, p. 11). In fact,
he is called "uncle" by the offended party
although it is the appellant's wife who is
related to the latter. Clarencia Calventas

would, therefore, not file a charge as

serious as rape against him just because
her boyfriend was jealous.
Moreover, it has long been held that no
young Filipina of decent repute would
publicly admit that she had been
criminally abused and ravished unless that
is the truth. It is her natural instinct to
protect her honor. (People v. Cruz, Sr., G.R.
No. 71462, June 30, 1987). In the case at
bar, it was more difficult for the victim to
narrate her ordeal as she was then about
to be married.
The appellant denies having raped the
victim because he is the latter's "uncle."
The fact that the victim is a close relative
is not considered a deterrent to rape.
(People v. Canoy, 137 SCRA 124).
The appellant questions the credibility of
the offended party. He alleges that her
testimony was contradicted by that of her
boyfriend, de la Cruz regarding her pants"
zipper which she testified was destroyed
when the appellant forced down her Pants
to rape her. He pointed out the fact that
de la Cruz testified that he (the latter")
only noticed that the pants" zipper was
broken at the time it was shown to him
during the court hearing. (tsn, November
28, 1978, p. 14). If the zipper was indeed
broken during the time of the rape, then
de la Cruz should have noticed it at the
time he met the offended party.
There is no contradiction. It can be seen
from the records of the case that de la
Cruz did not notice the zipper when he
met the offended party as the latter
covered it with her bag. (tsn, Supra, p.
12).
Moreover, this involves a minor detail that
does not affect credibility as it only refers
to a collateral matter which does not
touch on the commission of the crime
itself. (People v. Ibal, 143 SCRA 317).
We respect the findings of the lower court
when it observed, as follows:
It took her four sittings in Court to finish
with her testimony in chiefand close
scrutiny would reveal her consistency
throughout, her steadfastness. The Court
could not but note her sincerity and
candor, bespeaking truthfulness and
reliability. (Rollo, p. 14)

Finally, the appellant questions the fact

that no spermatozoa was found in the
offended party's private part.
As correctly held by the lower court, the
absence of spermatozoa does not negate
the commission of rape. The important
consideration is penetration of the labia,
no matter how slight and not omission.
(People v. Monteverde, 142 SCRA 668;
People v. Budol, 143 SCRA 241; People v.
Hermosada, 143 SCRA 484; People v.
Baraca, 137 SCRA 148; People v. Dadaeg,
137 SCRA 500). The records show that
when the victim recovered consciousness
she pushed the accused with all her
strength causing him to fall from the bed
to the floor. He was still performing the
sex act at the time.
In view of the foregoing, we hold that the
guilt of the accused-appellant Bulosan has
been established beyond reasonable
doubt.
WHEREFORE, the judgment appealed from
is hereby AFFIRMED with the modification
that the indemnity to be paid is increased
to P30,000.00.
SO ORDERED.
G.R. No. 101978. April 7, 1993.
EDUARDO
P.
PILAPIL,
petitioner,
vs.
SANDIGANBAYAN,
FRANCIS
E.
GARCHITORENA and PEOPLE OF THE
PHILIPPINES, respondents.
Ramon A. Gonzales for petitioner.
The
Solicitor
General
for
public
respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
MOTION
TO
QUASH;
ABSENCE
OF
PRELIMINARY INVESTIGATION, NOT A
GROUND. The absence of a preliminary
investigation is not a ground to quash a
complaint or information under Section 3,
Rule 117 of the Rules of Court.
2. ID.; ID.; PRELIMINARY INVESTIGATION;
ABSENCE THEREOF DOES NOT AFFECT
JURISDICTION OF COURTS NOR IMPAIR
VALIDITY OF INFORMATION. The
absence of preliminary investigation does
not affect the court's jurisdiction over the
case. Nor do they impair the validity of the
information or otherwise render it
defective, but, if there were no preliminary
investigations and the defendants, before
entering their plea, invite the attention of

the court to their absence, the court,

instead of dismissing the Information,
should conduct such investigation, order
the fiscal to conduct it or remand the case
to the inferior court so that the preliminary
investigation may be conducted . . .
(Sanciangco, Jr. vs. People, G.R. No. 72830,
149 SCRA 1 [1987] and reiterated in
Doromal vs. Sandiganbayan, G.R. No.
85468, 177 SCRA 354 [1989]).
3. ID.; ID.; MOTION TO QUASH; LACK OF
JURISDICTION BY THE COURT AS A
GROUND, CONSTRUED. The lack of
jurisdiction contemplated in Section 3(b),
Rule 117 of the Revised Rules of Court
refers to the lack of any law conferring
upon the court the power to inquire into
the facts, to apply the law and to declare
the punishment for an offense in a regular
course of judicial proceeding. When the
court has jurisdiction, as in this case, any
irregularity in the exercise of that power is
not a ground for a motion to quash.
4. ID.; JURISDICTION; ABSENCE THEREOF,
NOT SUBJECT TO WAIVER. Lack of
jurisdiction is not waivable but absence of
preliminary investigation is waivable. In
fact, it is frequently waived.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS;
DUE PROCESS; NOT DENIED WHERE
PETITIONER WAS REQUIRED TO ANSWER
THE CHARGES AGAINST HIM. The facts
on record show that in an order dated
October 3, 1990, Deputy Ombudsman
Domingo required petitioner to answer the
charges against him as stated in the
affidavits-complaints
and
supporting
documents
thereto.
Petitioner
fully
complied with said order and filed his and
his witnesses' affidavits. In other words,
petitioner was properly apprised of the act
complained
of
and
given
ample
opportunity to rebut the same. Thus,
petitioner could not validly raise violation
of his right to due process because the
bases for the information filed by the
Ombudsman were all reflected in the
complaint and the evidence supporting it.
6. REMEDIAL LAW; CRIMINAL PROCEDURE;
PRELIMINARY INVESTIGATION; NOTHING
MORE THAN THE SUBMISSION OF THE
PARTIES' AFFIDAVITS AND COUNTERAFFIDAVITS.

In
Cinco
vs.
Sandiganbayan, (G.R. Nos. 92362-67, 202
SCRA 727 [1991]) this Court held that

preliminary investigation is nothing more

than the submission of the parties'
respective affidavits, counter-affidavits
and evidence to buttress their separate
allegations.
7. ID.; ID.; ID.; MERELY INQUISITORIAL.
Preliminary
investigation
is
merely
inquisitorial, and it is often the only means
of discovering whether a person may be
reasonably charged with a crime, to
enable the prosecutor to prepare his
complaint or information.
8. ID.; ID.; NATURE OF CRIMINAL CHARGES
DETERMINED BY ACTUAL RECITAL OF
FACTS. The real nature of the criminal
charge is determined not from the caption
or preamble of the information nor from
the specification of the provision of law
alleged to have been violated, they being
conclusions of law, but by the actual
recital of facts in the complaint or
information. . . . it is not the technical
name given by the Fiscal appearing in the
title of the information that determines the
character of the crime but the facts
alleged in the body of the Information.
9. ID.; ID.; PRELIMINARY INVESTIGATION;
DEEMED
WAIVED
BY
FAILURE
TO
SEASONABLY INVOKED RIGHT THERETO.
The right to a preliminary investigation is
not a fundamental right and may be
waived expressly or by silence. Failure of
accused to invoke his right to a
preliminary investigation constituted a
waiver of such right and any irregularity
that attended it. The right may be
forfeited by inaction and can no longer be
invoked for the first time at the appellate
level.
10. ID.; ID.; ID.; MAY BE AVAILED OF EVEN
AFTER THE CASE HAS BEEN FILED.
Under the last paragraph of Section 7,
Rule 112 of 1985 Rules on Criminal
Procedure, the right to ask for preliminary
investigation is recognized even after the
case has already been filed.
11. ID.; ID.; PROBABLE CAUSE, DEFINED.
Probable cause has been defined in the
leading case of Buchanan vs. Vda. de
Esteban (32 Phil. 365) as the existence of
such facts and circumstances as would
excite the belief, in a reasonable mind,
acting on the facts within the knowledge
of the prosecutor, that the person charged
was guilty of the crime for which he was

prosecuted.
Probable
cause
is
a
reasonable ground of presumption that a
matter is, or may be, well founded, such a
state of facts in the mind of the prosecutor
as would lead a person of ordinary caution
and prudence to believe, or entertain an
honest or strong suspicion, that a thing is
so.
12.
ID.;
SPECIAL
CIVIL
ACTION;
CERTIORARI;
FINDING
BY
THE
SANDIGANBAYAN OF PROBABLE CAUSE
FOR VIOLATION OF ANTI-GRAFT AND
PRACTICES ACT, NOT IN EXCESS OF
JURISDICTION NOR WITH GRAVE ABUSE OF
DISCRETION. Having found that
respondent court has not acted in excess
of jurisdiction nor with grave abuse of
discretion in finding the existence of
probable cause in the case at bar and
consequently, in denying the motion to
quash and motion for reconsideration of
petitioner,
We
dismiss
as
clearly
unfounded the insinuations of petitioner
that Presiding Justice Francis Garchitorena
used the influence of his office in initiating
the complaint against him. We agree with
respondent court that the act of bringing
to the attention of appropriate officials
possible transgression of the law is as
much an obligation of the highest official
of the land as it is the responsibility of any
private citizen.
DECISION
NOCON, J p:
In this petition for certiorari and
mandamus, petitioner seeks to annul the
resolutions of respondent Sandiganbayan
in Criminal Case No. 16672, entitled
"People of the Philippines vs. Eduardo P.
Pilapil" dated June 27, 1991 denying his
motion to quash the information for
Violation of Section 3(e) of Republic Act
No. 3019, as amended. as well as the
resolution dated September 5, 1991
denying his motion for reconsideration.
Petitioner predicated his motion to quash
on the ground of lack of jurisdiction over
his person because the same was filed
without probable cause. In addition
thereto, petitioner cites the fact that the
information for violation of the Anti-Graft
Law was filed although the complaint upon
which the preliminary investigation was
conducted is for malversation.

The antecedent facts of the case are as

follows:
On October 16, 1987, the Philippine
Charity
Sweepstakes
Office
(PCSO)
donated one ambulance (a Mitsubishi L300) to the Municipality of Tigaon,
Camarines Sur. Petitioner, who is the
Congressman of the 3rd District of
Camarines Sur, received the ambulance in
behalf of the municipality. However, he did
not deliver the ambulance to said
municipality.
Unaware of the donation, the Sangguniang
Bayan of the municipality passed a
resolution (Resolution No. 16, Series of
1988) requesting PCSO for an ambulance.
Said request was reiterated in their
Resolution No. 117, Series of 1988. The
mayor of the municipality, Eleanor P. Lelis,
thereafter sought the intercession of
Sandiganbayan Presiding Justice Francis
Garchitorena, who is from the said
municipality, regarding said request.
Thereafter, Justice Garchitorena contacted
the PCSO and learned about the
ambulance previously donated by the
latter to Tigaon through petitioner. He
accordingly informed Mayor Lelis that the
municipality's request cannot be favorably
acted upon in view of the previous
donation.
Mayor Lelis reiterated the municipality's
request for an ambulance making
reference to the certification of the
municipal treasurer that no vehicle from
the PCSO or from anyone has been
received.
Upon verification of the whereabouts of
the Mitsubishi L-300 by the PCSO from the
petitioner,
the
latter indicated his
willingness to return the ambulance. In a
letter dated December 22, 1988, he
requested that said vehicle be donated
instead to the Municipality of Tinambac,
same province. Finally, on December 26.
1988,
he
personally
returned
the
ambulance, then already painted to cover
the logo of the PCSO and the other
markings thereon.
With the return of the Mitsubishi L-300 to
the PCSO, the Municipality of Tigaon,
through Mayor Lelis, finally received a
brand new Besta Kia Ambulance unit
complete with all accessories.

On January 2, 1989, Justice Garchitorena

wrote the then Chief Justice Marcelo B.
Fernan relating to him the whole story of
the ambulance.
On January 25, 1989, Justice Garchitorena
also sent Deputy Ombudsman Jose C.
Colayco
a
letter-complaint
against
petitioner regarding said ambulance. Said
letter-complaint
was
referred
by
Ombudsman Conrado M. Vasquez to the
Deputy Ombudsman for Luzon, Manuel C.
Domingo,
for
appropriate
action.
Thereupon, Deputy Ombudsman Domingo
required Justice Garchitorena to submit all
relevant records and documents, as well
as his affidavit and those of his witnesses.
Failing in this regard, Justice Garchitorena
was requested anew to comply. In his
stead, Anthony D. Jamora, the Regional
manager
of
the
Special
Projects
Department of the PCSO and Mayor Lelis
of Tigaon, Camarines Sur, submitted their
respective affidavits.
On October 3, 1990, Deputy Ombudsman
Domingo issued an order requiring
petitioner to submit his counter-affidavit,
affidavits of his witnesses and other
controverting evidence. This order was
captioned as Case No. OMB-1-89-0168 for
"Malversation of Public Property under
Article 217 of the Revised Penal Code."
On October 22, 1990, petitioner submitted
his
counter-affidavit
denying
the
imputation of said offense claiming that
the vehicle was not equipped with any
medical attachments or facilities so he
was constrained to request PAGCOR for
assistance to finance its conversion into a
medical ambulance which is evidenced by
his letter dated November 15, 1987 to
Mrs. Alice Reyes. He claimed that it was
only on April 28, 1988 that PAGCOR acted
on his request, but in lieu of financial
assistance,
said
office
donated
accessories, which can be installed at an
estimated cost of P5,000.00. Thus, he
allegedly made personal representations
with PAGCOR for the latter to shoulder the
expenses of the installation. While
awaiting for the financial assistance,
petitioner claimed, in explanation why the
logo of PCSO and the other markings on
the vehicle were removed, that he
acceded to the suggestion of his staff to
include the name of PAGCOR on the sides

of the ambulance in view of the

substantial contribution of the latter.
On December 5, 1990, Ombudsman
Investigator Isaac D. Tolentino issued a
resolution finding no probable cause for
malversation and recommended that the
case be dismissed, which recommendation
was approved by Deputy Ombudsman
Domingo.
On January 5, 1991, Assistant Ombudsman
Abelardo Aportadera, Jr. recommended the
disapproval of the aforesaid resolution and
instead, suggested the filing of criminal
information for violation of Article 217 of
the Revised Penal Code. This was followed
by another resolution to the same effect
by Special Prosecution Officer Wilfredo
Orencia dated February 14, 1991.
On April 1, 1991, Ombudsman Conrado
Vasquez issued a resolution sustaining the
finding
of
Ombudsman
Investigator
Tolentino that there is no malversation but
found in the same resolution, a prima facie
case for violation of Section 3(e) of
Republic Act No. 3019, the dispositive part
of which states:
"WHEREFORE, it is hereby directed that
the information to be filed against the
respondent should be for a violation of
Section 3(e) of R.A. 3019." 1
On April 3, 1991, an information for
violation of Section 3(e) of Republic Act
No. 3019, docketed as Criminal Case No.
16672, against petitioner was filed, to wit:
"The undersigned Special Prosecution
Officer III accuses EDUARDO P. PILAPIL of
the crime for 'Violation of Section 3(e) of
Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and
Corrupt Practices Act, committed as
follows:
'That on or about October 16, 1987 and
subsequent thereto, in the Municipality of
Tigaon, Province of Camarines Sur and
within the jurisdiction of this Honorable
Court, the accused is a public officer, he
being the Congressman of the Third
Congressional District of Camarines Sur,
while in the discharge of his official
functions and taking advantage of his
public position, acted with manifest
partiality and evident bad faith, did then
and there willfully cause undue injury to
the Municipality of Tigaon, Camarines Sur,
when he failed to deliver the ambulance,

Mitsubishi Van L-300, received by him on

behalf of the said municipality in a Deed of
Donation executed by the Philippine
Charity Sweepstakes Office in its favor, to
the prejudice and damage of the said
municipal government.
CONTRARY TO LAW." 2
On April 12, 1991, a warrant of arrest was
issued against petitioner. On April 18,
1991, he was allowed to deposit the sum
of P15,000.00 in court to be considered as
bail bond and the warrant of arrest was
recalled.
On May 2, 1991, petitioner filed a motion
to quash on the ground that respondent
Sandiganbayan has no jurisdiction over his
person because the information was filed
without probable cause since there is
absolutely no proof adduced in the
preliminary investigation of any of the
elements of the crime defined in Section
3(e) of Republic Act No. 3019. On June 27,
1991, respondent court denied the said
motion to quash holding that the factual
and legal issues and/or questions raised
are evidentiary in nature and are matters
of defense, the validity of which can be
best passed upon after a full-blown trial on
the merits. On September 5, 1991,
respondent court denied petitioner's
motion for reconsideration of the said
resolution and set the arraignment of
petitioner on October 21, 1991 at 8:30
a.m.
On October 12, 1991, petitioner filed the
present petition and by reason of such
filing, respondent court ordered that the
arraignment be held in abeyance.
Petitioner enumerates the following as his
reasons for filing the petition:
"I. THAT RESPONDENT COURT IS ACTING
WITHOUT OR IN EXCESS OF JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION IN
DENYING THE MOTION TO QUASH.
II.
THAT
RESPONDENT
COURT
IS
NEGLECTING A LEGAL DUTY IN NOT
QUASHING
THE
INFORMATION
OR
DISMISSING THE CASE.
III. THAT PETITIONER HAS NO PLAIN,
SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW EXCEPT THE
PRESENT PETITION." 3
Stated otherwise, the issue in this case is
whether or not the Sandiganbayan
committed grave abuse of discretion in

denying petitioner's motion to quash and

motion for reconsideration.
Petitioner harps on the lack of preliminary
investigation on the specific charge of
violation of Sec. 3(e), Republic Act No.
3019, as amended, filed before the
Sandiganbayan. He alleges that the
preliminary investigation was conducted
for the charge of malversation.
At the outset, this Court bears mention of
the rudimentary rule that the absence of a
preliminary investigation is not a ground
to quash a complaint or information under
Section 3, Rule 117 of the Rules of Court.
The proper procedure in case of lack of
preliminary investigation is to hold in
abeyance the proceedings upon such
information and the case remanded to the
Office of the Provincial Fiscal or the
Ombudsman, for that matter, for him or
the Special Prosecutor to conduct a
preliminary investigation. 4 Thus, We
enunciated in Sanciangco, Jr. vs. People, 5
and
reiterated
in
Doromal
vs.
Sandiganbayan, 6 that:
"The absence of preliminary investigation
does not affect the court's jurisdiction over
the case. Nor do they impair the validity of
the information or otherwise render it
defective, but, if there were no preliminary
investigations and the defendants, before
entering their plea, invite the attention of
the court to their absence, the court,
instead of dismissing the Information,
should conduct such investigation, order
the fiscal to conduct it or remand the case
to the inferior court so that the preliminary
investigation may be conducted . . ."
Petitioner takes exception to the doctrine
and urges this Court to take a second look
arguing
that
lack
of
preliminary
investigation
affects
the
court's
jurisdiction because it is violative of due
process. He reasons out that jurisprudence
abounds with the rule that denial of due
process is grave jurisdictional defeat
rendering the judgment void.
We are not persuaded. The lack of
jurisdiction contemplated in Section 3(b),
Rule 117 of the Revised Rules of Court
refers to the lack of any law conferring
upon the court the power to inquire into
the facts, to apply the law and to declare
the punishment for an offense in a regular
course of judicial proceeding. When the

court has jurisdiction, as in this case, any

irregularity in the exercise of that power is
not a ground for a motion to quash.
Reason is not wanting for this view. Lack
of jurisdiction is not waivable but absence
of preliminary investigation is waivable. In
fact, it is frequently waived.
We now come to the question of whether
there was no preliminary investigation
conducted in this case necessitating the
suspension of the proceedings in the case
until after the outcome of such preliminary
investigation.
The facts on record show that in an order
dated
October
3,
1990,
Deputy
Ombudsman Domingo required petitioner
to answer the charges against him as
stated in the affidavits-complaints and
supporting documents thereto. Petitioner
fully complied with said order and filed his
and his witnesses' affidavits. In other
words, petitioner was properly apprised of
the act complained of and given ample
opportunity to rebut the same. Thus,
petitioner could not validly raise violation
of his right to due process because the
bases for the information filed by the
Ombudsman were all reflected in the
complaint and the evidence supporting it.
In Cinco vs. Sandiganbayan, 7 this Court
held that preliminary investigation is
nothing more than the submission of the
parties' respective affidavits, counteraffidavits and evidence to buttress their
separate allegations.
Petitioner attaches significance to the fact
that
the
preliminary
investigation
conducted by the Ombudsman against
him was under the title of "malversation."
According to him, this is not sufficient to
justify the filing of the charge of violation
of Anti-Graft and Corrupt Practices Law.
Petitioner loses sight of the fact that
preliminary
investigation
is
merely
inquisitorial, and it is often the only means
of discovering whether a person may be
reasonably charged with a crime, to
enable the prosecutor to prepare his
complaint or information. The preliminary
designation of the offense in the directive
to file a counter-affidavit and affidavits of
one's witnesses is not conclusive. Such
designation is only a conclusion of law of
Deputy
Ombudsman
Domingo.
The
Ombudsman is not bound by the said

qualification of the crime. Rather, he is

guided by the evidence presented in the
course of a preliminary investigation and
on the basis of which, he may formulate
and designate the offense and direct the
filing of the corresponding information. In
fact, even, the designation of the offense
by the prosecutor in the information itself
has been held inconclusive, to wit:
". . . the real nature of the criminal charge
is determined not from the caption or
preamble of the information nor from the
specification of the provision of law
alleged to have been violated, they being
conclusions of law, but by the actual
recital of facts in the complaint or
information . . . it is not the technical
name given by the Fiscal appearing in the
title of the information that determines the
character of the crime but the facts
alleged in the body of the Information." 8
Petitioner cites the case of Luciano vs.
Mariano, 9 in support of its view that a
new preliminary investigation is needed.
In said case, however, the original charge
for falsification was dismissed for being
without any factual or legal basis and the
category of the offense was raised as the
alleged violation of the Anti-Graft Law was
a graver charge. In the case at bar, there
is no dismissal to speak of because under
the rules of procedure of the office of the
Ombudsman, a complaint may be
dismissed only upon the written authority
or approval of the Ombudsman. Besides,
even the petitioner admits that the
violation of the Anti-Graft law did not raise
the
category
of
the
offense
of
malversation.
The case of Doromal vs. Sandiganbayan,
10 also cited by petitioner as another
authority, is likewise inapplicable as in
said case, the information was annulled as
the then incumbent Tanodbayan was
without authority to conduct preliminary
investigations and to direct the filing of
criminal cases with the Sandiganbayan,
except upon orders of the Ombudsman.
With the annulment of the information,
this Court held that a new preliminary
investigation of the charge was in order
not only because the first was a nullity but
also because the accused demands it as
his right. In the case at bar, there is no old
or new information. Only one information

was filed as a result of the preliminary

investigation conducted by the office of
the Ombudsman.
Even on the assumption that no
preliminary investigation was conducted
for the information filed, petitioner waived
his right thereto for failure to ask the
Sandiganbayan or the Ombudsman for a
new preliminary investigation. On this
score again, petitioner's case is different
from the Luciano and Doromal cases
where the attention of the lower court was
called to the lack of a new preliminary
investigation. Petitioner bewailed the
absence of a new preliminary investigation
only before this Court. It is noteworthy
that his only basis for quashing the
information is the alleged lack of
jurisdiction of the court over his person
because there is no probable cause for the
filing of the information.
It is well-settled that the right to a
preliminary
investigation
is
not
a
fundamental right and may be waived
expressly or by silence. 11 Failure of
accused to invoke his right to a
preliminary investigation constituted a
waiver of such right and any irregularity
that attended it. 12 The right may be
forfeited by inaction and can no longer be
invoked for the first time at the appellate
level. 13
Petitioner's argument that he could not
have asked for a new preliminary
investigation in the Office of the
Ombudsman since he came to know about
the charge only after the information was
filed in the Sandiganbayan, is not tenable.
Under the last paragraph of Section 7,
Rule 112 of 1985 Rules on Criminal
Procedure, the right to ask for preliminary
investigation is recognized even after the
case has already been filed, to wit:
"If the case has been filed in court without
a preliminary Investigation having been
first conducted, the accused may within
five (5) days from the time he learns of
the filing of the information, ask for a
preliminary investigation with the same
right to adduce evidence to his favor in
the manner prescribed in this Rule."
Clearly, the alleged lack of a valid
preliminary investigation came only as an
afterthought to gain a reversal of the
denial of the motion to quash. Sad to say,

this last ditch effort came a bit late. His

failure to invoke this right below
constituted a waiver of such right.
As aforesaid, what was submitted for
consideration below was the motion to
quash of petitioner on the ground of want
of jurisdiction by the trial court over his
person because of the filing of an
information without probable cause. There
being no probable cause, according to
petitioner, then there could be no basis to
issue a warrant of arrest and hence, the
respondent court had no jurisdiction over
his person.
Contesting the findings of respondent
court that probable cause exists in this
case, petitioner insists that there is no
competent proof that all the elements of
Section 3(e) of the Anti-Graft law are
present, namely: that an act was done (1)
causing undue injury to the government,
(2) with manifest partiality or evident bad
faith, and (3) by a public officer in the
discharge of his official duties.
Petitioner
argues
that
the
injury
contemplated under the law is real or
actual damage and since there is
absolutely no proof of real or actual
damages suffered by the municipality, the
finding of undue injury by the Ombudsman
has no factual basis. Concomitantly, he
says that since there is no undue injury,
then, there can be no bad faith, as bad
faith is inseparable from undue injury for
undue injury must be through bad faith.
He claims that failure to inform the mayor
of the donation, that he returned the
vehicle after one year; that he kept the
vehicle in storage; and that he caused the
repainting to erase the words PCSO are
not evidence of bad faith since they
cannot manifest a deliberate intent to do
wrong or cause damage.
Finally, petitioner claims that the element
of "public office in the discharge of official
duties" is also absent as his acceptance of
the vehicle in question from PCSO and its
non-delivery to the municipality of Tigaon
was not done in the discharge of his duty
as a congressman tasked with enacting
laws. If at all, he admits, the act was done
in his private capacity as political leader in
his district.
We agree with respondent court that the
presence or absence of the elements of

the crime are evidentiary in nature and

are matters of defense, the truth of which
can best be passed upon after a full-blown
trial on the merits.
Probable cause has been defined in the
leading case of Buchanan vs. Vda. de
Esteban 14 as the existence of such facts
and circumstances as would excite the
belief, in a reasonable mind, acting on the
facts within the knowledge of the
prosecutor, that the person charged was
guilty of the crime for which he was
prosecuted.
Probable cause is a reasonable ground of
presumption that a matter is, or may be,
well founded, such a state of facts in the
mind of the prosecutor as would lead a
person of ordinary caution and prudence
to believe, or entertain an honest or
strong suspicion, that a thing is so" 15 The
term does not mean "actual and positive
cause" nor does it import absolute
certainty. It is merely based on opinion
and reasonable belief. Thus, a finding of
probable cause does not require an inquiry
into whether there is sufficient evidence to
procure a conviction. It is enough that it is
believed that the act or omission
complained of constitutes the offense
charged. Precisely, there is a trial for the
reception of evidence of the prosecution in
support of the charge.
Whether an act was done causing undue
injury to the government and whether the
same was done with manifest partiality or
evident bad faith can only be made out by
proper
and
sufficient
testimony.
Necessarily, a conclusion can be arrived at
when the case has already proceeded on
sufficient proof.
At the moment, in passing on a motion to
set aside an information on the ground
that the accused has been charged
without probable cause, the court should
not be guided by the rule that accused
must be shown to be guilty beyond a
reasonable doubt, but rather whether
there is sufficient evidence which inclines
the mind to believe, without necessarily
leaving room for doubt, that accused is
guilty thereof.
Having thus found that respondent court
has not acted in excess of jurisdiction nor
with grave abuse of discretion in finding
the existence of probable cause in the

case at bar and consequently, in denying

the motion to quash and motion for
reconsideration of petitioner, We dismiss
as clearly unfounded the insinuations of
petitioner that Presiding Justice Francis
Garchitorena used the influence of his
office in initiating the complaint against
him. We agree with respondent court that
the act of bringing to the attention of
appropriate officials possible transgression
of the law is as much an obligation of the
highest official of the land as it is the
responsibility of any private citizen.
WHEREFORE, the instant petition for
certiorari and mandamus is hereby
DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 130644 October 27, 1997
THE
MINOR
FRANCISCO
JUAN
LARRANAGA, represented in this suit
by
his
mother
MARGARITA
G.
LARRANAGA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES, respondents.
RESOLUTION
PUNO, J.:
On October 1, 1997, petitioner Margarita
G. Larranaga filed a petition for certiorari,
prohibition and mandamuswith writs of
preliminary prohibitory and mandatory
injunction seeking to annul the information
for
kidnapping
and
serious
illegal
detention against her minor son, Francisco
Juan Larranaga alias Paco, filed in the
RTC 1 of Cebu City as well as the warrant
of arrest issued as a consequence thereof.
Petitioner as an alternative remedy prays
for the annulment of the order 2 of the
Office of the City Prosecutor of Cebu
denying Larranaga's motion for a regular
preliminary investigation and that it be
conducted by a panel of prosecutors from
the Office of the State Prosecutor,
Department of Justice. On October 6,
1997, petitioner filed a Supplemental
Petition praying for the issuance of the
writ of habeas corpus to relieve her son
from his alleged illegal confinement or to
grant him bail.
It appears that on September 15, 1997,
some PNP CIG authorities went to the
Center for Culinary Arts located at 287
Katipunan Avenue, Loyola Heights, Quezon

City to arrest Francisco Juan Larranaga.

Larranaga,
thru
his
lawyer,
Atty.
Raymundo Armovit remonstrated against
the warrantless arrest. The police did not
carry out the arrest on the assurance that
Larranaga would be brought to Cebu City
by his lawyer on September 17, 1997 for
preliminary investigation.
On September 17, 1997, Atty. Armovit
attended the preliminary investigation
conducted by the Office of the City State
Prosecutor of Cebu. Forthwith, he moved
that his client be given a regular
preliminary
investigation.
He
also
requested for copies of all affidavits and
documents in support of the complaint
against his client and that he be granted a
non-extendible period of twenty (20) days
from their receipt to file the defense
affidavit. The motion was denied by the
city prosecutor on the ground that
Larranaga should be treated as a
detention prisoner, hence entitled only to
an inquest investigation. Atty. Armovit was
ordered to present Larranaga in person.
He was warned that his failure would be
treated as waiver of his client's right to a
preliminary investigation and he would be
proceeded against pursuant to section 7,
Rule 112 of the Rules of Court. Atty.
Armovit's
verbal
motion
for
reconsideration was denied by the city
prosecutor.
On September 19, 1997, Larranaga, thru
counsel, rushed to the Court of Appeals
assailing the actuations of the Cebu
prosecutors thru a petition for certiorari,
prohibition
and mandamus. 3 However,
Larranaga's effort to stop the filing of a
criminal information against him failed. It
turned out that on September 17, 1997
the said prosecutors had filed an
information with the RTC of Cebu charging
Larranaga with kidnapping and serious
illegal
detention.
The
prosecutors
recommended no bail. On September 22,
1997, counsel filed a Supplemental
Petition with the Court of Appeals
impleading the RTC of Cebu City to
prevent petitioner's arrest. The move
again proved fruitless as Larranaga was
arrested on the night of September 22,
1997 by virtue of a warrant of arrest
issued by the Executive Judge of the RTC
of Cebu City, the Honorable Priscila Agana.

A second Supplemental Petition was filed

by Larranaga's counsel in the Court of
Appeals bringing to its attention the arrest
of Larranaga. On September 25, 1997 the
Court of Appeals' dismissed Larranaga's
petitions, hence, the case at bar.
On October 8, 1997, we ordered the
Solicitor General to file a consolidated
comment on the petition within a nonextendible period of ten (10) days. On
October 16, 1997, we temporarily
restrained the presiding judge of Branch 7
of the RTC of Cebu from proceeding with
the case to prevent the issues from
becoming moot.
On October 20, 1997, the Office of the
Solicitor General filed a Manifestation and
Motion in lieu of Consolidated Comment.
The Solicitor General submitted that ". . . it
is within petitioner's constitutional and
legal rights to demand that a regular
preliminary investigation rather than a
mere inquest be conducted before
resolving the issue of whether or not to file
informations against him." He asked that
". . . the petition be given due course and
petitioner be accorded his right to
preliminary investigation." He further
recommended that ". . . during the
pendency thereof, petitioner be released
from detention."
We agree.
Petitioner is entitled not to a mere inquest
investigation but to a regular preliminary
investigation. Section 7 of Rule 112 cannot
be invoked to justify petitioner's inquest
investigation. Said section clearly provides
that "when a person is lawfully arrested
without a warrant for an offense
cognizable by the Regional Trial Court, the
complaint or information may be filed by
the offended party, peace officer or fiscal
without a preliminary investigation having
been first conducted, on the basis of the
affidavit of the offended party or arresting
officer or person."
The records do not show that petitioner
was "lawfully arrested." For one the
petitioner was not arrested on September
15, 1997, as his counsel persuaded the
arresting officers that he would instead be
presented in the preliminary investigation
to be conducted in Cebu City on
September 17, 1997. For another, the
arresting officers had no legal authority to

make a warrantless arrest of the petitioner

for a crime committed some two (2)
months before. So we held in Go vs. Court
of Appeals, viz: 4
Secondly, we do not belie that the
warrantless "arrest" or detention of
petitioner in the instant case falls within
the terms of Section 5 of Rule 113 of the
1985 Rules on Criminal Procedure which
provides:
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 in fact just been
committed,
and
he
has
personal
knowledge of facts indicating that the
person to be arrested has committed it;
and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or temporarily confined
while his case is pending, or has escaped
while
being
transferred
from
one
confinement to another.
In cases falling under paragraphs (a) and
(b) hereof, the person arrested without a
warrant shall be forthwith delivered to the
nearest police station or jail, and he shall
be proceeded against in accordance with
Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days
after the shooting of Maguan. The
"arresting" officers obviously were not
present, within the meaning of Section
5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest"
effected six (6) days after the shooting be
reasonably regarded as effected "when
(the shooting had) in fact just been
committed" within the meaning of Section
5(b). Moreover, none of the "arresting"
officers had any "personal knowledge" of
facts indicating that petitioner was the
gunman who had shot Maguan. The
information upon which the police acted
had been derived from statements made
by alleged eyewitnesses to the shooting
one stated that petitioner was the
gunman; another was able to take down
the alleged gunman's car's plate number

which turned out to be registered in

petitioner's wife's name. That information
did not, however, constitute "personal
knowledge."
It is thus clear to the Court that there was
no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule
113. It is clear too that Section 7 of Rule
112 is not applicable. . . . When the police
filed a complaint for frustrated homicide
with the Prosecutor, the latter should have
immediately scheduled a preliminary
investigation to determine whether there
was probable cause for charging petitioner
in court for the killing of Eldon Maguna.
Instead, as noted earlier, the Prosecutor
proceeded
under
the
erroneous
supposition that Section 7 of Rule 112 was
applicable and required petitioner to waive
the provisions of Article 125 of the Revised
Penal Code as a condition for carrying out
a preliminary investigation. This was
substantive error, for petitioner was
entitled to a preliminary investigation and
that right should have been accorded him
without any conditions. Moreover, since
petitioner had not been arrested, with or
without a warrant, he was also entitled to
be released forthwith subject only to his
appearing at the preliminary investigation.
It then follows that the right of petitioner
to a regular preliminary investigation
pursuant to section 3 of Rule 112 cannot
stand any diminution. Petitioner, a minor,
is charged with a capital offense
kidnapping and serious illegal detention.
Its filing in court means his arrest and
incarceration as in all probability he would
not be allowed bail. His conviction will
bring him face to face with the death
penalty. Thus, petitioner's counsel was far
from being unreasonable when he
demanded from the city prosecutors that
he be furnished copies of the affidavits
supporting the complaint and that he be
given a non-extendible period of twenty
(20) days to submit defense affidavit. As
well pointed out by petitioner's counsel,
the precipitate denial of his motion ". . .
prevented petitioner from preparing and
submitting the affidavits of some forty
(40) classmates, teachers, proctors and
security guards who had previously made
known their willingness to testify that:

 during the whole day of July 16 and

again on July 17 petitioner and his
classmates were all in their school at
Quezon City; in fact in the afternoon of
July 16 and 17, 1997, petitioner and his
classmates took their mid-term exams;
following their exams on July 16 they
had partied together first at petitioner's
Quezon City apartment until about 9
o'clock in the evening, and then repaired
to a Quezon City restaurant at Katipunan
Avenue where they stayed on until 3
o'clock in the morning of July 17; they
even had pictures taken of their party;
indeed petitioner's July 16 examination
papers and that of a classmate are ready
for submission as evidence, along with
petitioner's grades for the term's end in
September 1997;
two of their teachers, also a proctor,
and a security guard actually remember
seeing petitioner at their Quezon City
school on July 16 and 17;
petitioner was duly registered and
attended classes starting June 1997 until
term's end in September 1997;
petitioner had also been logged to have
been in his Quezon City apartment since
June 1997, particularly including July 16
and 17;
petitioner only went to Cebu late
afternoon of July 17 on board PAL flight No.
PR833, as shown by his plane ticket and
boarding pass.
Fairness dictates that the request of
petitioner for a chance to be heard in a
capital offense case should have been
granted by the Cebu City prosecutor.
In Webb vs. de Leon, 5 we emphasized that
"attuned to the times, our Rules have
discarded the pure inquisitorial system of
preliminary investigation. Instead, Rule
112 installed a quasi-judicial type of
preliminary investigation conducted by
one whose high duty is to be fair and
impartial. As this Court emphasized
inRolito Go vs. Court of Appeals, 'the right
to have a preliminary investigation
conducted before being bound over for
trial for a criminal offense and hence
formally at risk of incarceration or some
other penalty, is not a mere formal or
technical right; it is a substantive right.' A
preliminary investigation should therefore
be scrupulously conducted so that the

constitutional right to liberty of a potential

accused can be protected from any
material damage."
IN VIEW WHEREOF, the Court resolves: (1)
to set aside the inquest investigation of
petitioner and to order the Office of the
City Prosecutor of Cebu to conduct a
regular preliminary investigation of the
petitioner in accord with section 3, Rule
112; (2) to annul the Order for Detention
During The Pendency of the Case issued
by Executive Judge Priscila Agana against
the petitioner in Crim. Case No. CBU45303 and 45304; (3) to order the
immediate release of petitioner pending
his preliminary investigation and (4) to
order the Presiding Judge of Br. VII, RTC of
Cebu City to cease and desist from
proceeding with the arraignment and trial
of petitioner in Crim. Case No. CBU-45303
and 45304, pending the result of
petitioner's preliminary investigation.
Regalado, Mendoza and Torres, Jr., JJ.,
concur.
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON.
BENJAMIN V. PELAYO, Presiding Judge,
Branch 168, Regional Trial Court,
NCJR Pasig, M.M., and PEOPLE OF THE
PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan
Police in their Investigation Report, 1 on 2
July 1991, Eldon Maguan was driving his
car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St.
Petitioner entered Wilson St., where it is a
one-way street and started travelling in
the opposite or "wrong" direction. At the
corner of Wilson and J. Abad Santos Sts.,
petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted
from his car, walked over and shot
Maguan inside his car. Petitioner then
boarded his car and left the scene. A
security guard at a nearby restaurant was
able to take down petitioner's car plate
number. The police arrived shortly
thereafter at the scene of the shooting
and there retrieved an empty shell and
one round of live ammunition for a 9 mm

caliber pistol. Verification at the Land

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

provisions of Article 125 of the Revised

Penal Code.
In the afternoon of the same day, 11 July
1991, counsel for petitioner filed with the
Prosecutor an omnibus motion for
immediate release and proper preliminary
investigation, 4 alleging
that
the
warrantless arrest of petitioner was
unlawful
and
that
no
preliminary
investigation had been conducted before
the information was filed. Petitioner also
prayed
that
he
be
released
on
recognizance or on bail. Provincial
Prosecutor Mauro Castro, acting on the
omnibus motion, wrote on the last page of
the motion itself that he interposed no
objection to petitioner being granted
provisional liberty on a cash bond of
P100,000.00.
On 12 July 1991, petitioner filed an
urgent ex-parte motion
for
special
raffle 5 in order to expedite action on the
Prosecutor's bail recommendation. The
case was raffled to the sala of respondent
Judge, who, on the same date, approved
the cash bond 6 posted by petitioner and
ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with
the Regional Trial Court a motion for leave
to conduct preliminary investigation 8 and
prayed that in the meantime all
proceedings in the court be suspended. He
stated that petitioner had filed before the
Office of the Provincial Prosecutor of Rizal
an omnibus motion for immediate release
and preliminary investigation, which
motion had been granted by Provincial
Prosecutor Mauro Castro, who also agreed
to recommend cash bail of P100,000.00.
The Prosecutor attached to the motion for
leave a copy of petitioner's omnibus
motion of 11 July 1991.
Also on 16 July 1991, the trial court issued
an Order 9 granting leave to conduct
preliminary investigation and cancelling
the arraignment set for 15 August 1991
until after the prosecution shall have
concluded its preliminary investigation.
On 17 July 1991, however, respondent
Judge motu
proprio issued
an
Order, 10 embodying the following: (1) the
12 July 1991 Order which granted bail was
recalled; petitioner was given 48 hours
from receipt of the Order to surrender

himself; (2) the 16 July 1991 Order which

granted leave to the prosecutor to conduct
preliminary investigation was recalled and
cancelled; (3) petitioner's omnibus motion
for immediate release and preliminary
investigation dated 11 July 1991 was
treated as a petition for bail and set for
hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition
for certiorari,
prohibition
and mandamus before the Supreme Court
assailing the 17 July 1991 Order,
contending that the information was null
and
void
because
no
preliminary
investigation
had
been
previously
conducted, in violation of his right to due
process. Petitioner also moved for
suspension of all proceedings in the case
pending resolution by the Supreme Court
of his petition; this motion was, however,
denied by respondent Judge.
On 23 July 1991, petitioner surrendered to
the police.
By a Resolution dated 24 July 1991, this
Court remanded the petition for certiorari,
prohibition and mandamus to the Court of
Appeals.
On 16 August 1991, respondent Judge
issued an order in open court setting the
arraignment of petitioner on 23 August
1991.
On 19 August 1991, petitioner filed with
the Court of Appeals a motion to restrain
his arraignment.
On 23 August 1991, respondent judge
issued a Commitment Order directing the
Provincial Warden of Rizal to admit
petitioner into his custody at the Rizal
Provincial Jail. On the same date,
petitioner
was
arraigned.
In
view,
however, of his refusal to enter a plea, the
trial court entered for him a plea of not
guilty. The Trial court then set the criminal
case for continuous hearings on 19, 24
and 26 September; on 2, 3, 11 and 17
October; and on 7, 8, 14, 15, 21 and 22
November 1991. 11
On 27 August 1991, petitioner filed a
petition for habeas corpus 12 in the Court
of Appeals. He alleged that in view of
public respondent's failure to join issues in
the petition for certiorari earlier filed by
him, after the lapse of more than a month,
thus prolonging his detention, he was
entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals

issued the writ of habeas corpus. 13 The
petition
for certiorari,
prohibition
and mandamus, on the one hand, and the
petition for habeas corpus, upon the other,
were subsequently consolidated in the
Court of Appeals.
The Court of Appeals, on 2 September
1991, issued a resolution denying
petitioner's
motion
to
restrain
his
arraignment on the ground that that
motion had become moot and academic.
On 19 September 1991, trial of the
criminal case commenced and the
prosecution presented its first witness.
On 23 September 1991, the Court of
Appeals
rendered
a
consolidated
decision 14 dismissing
the
two
(2)
petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid
because the offense for which he was
arrested and charged had been "freshly
committed." His identity had been
established through investigation. At the
time he showed up at the police station,
there had been an existing manhunt for
him. During the confrontation at the San
Juan Police Station, one witness positively
identified petitioner as the culprit.
b. Petitioner's act of posting bail
constituted waiver of any irregularity
attending his arrest. He waived his right to
preliminary investigation by not invoking it
properly and seasonably under the Rules.
c. The trial court did not abuse its
discretion when it issued the 17 July 1991
Order because the trial court had the
inherent power to amend and control its
processes
so
as
to
make
them
conformable to law and justice.
d. Since there was a valid information for
murder against petitioner and a valid
commitment order (issued by the trial
judge after petitioner surrendered to the
authorities whereby petitioner was given
to the custody of the Provincial Warden),
the petition for habeas corpus could not
be granted.
On 3 October 1991, the prosecution
presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a
"Withdrawal of Appearance" 15 with the
trial court, with petitioner's conformity.
On 4 October 1991, the present Petition
for Review on Certiorari was filed. On 14

October 1991, the Court issued a

Resolution directing respondent Judge to
hold in abeyance the hearing of the
criminal case below until further orders
from this Court.
In this Petition for Review, two (2) principal
issues need to be addressed: first,
whether or not a lawful warrantless arrest
had been effected by the San Juan Police
in respect of petitioner Go; and second,
whether petitioner had effectively waived
his right to preliminary investigation. We
consider these issues seriatim.
In respect of the first issue, the Solicitor
General argues that under the facts of the
case, petitioner had been validly arrested
without warrant. Since petitioner's identity
as the gunman who had shot Eldon
Maguan on 2 July 1991 had been
sufficiently established by police work,
petitioner was validly arrested six (6) days
later at the San Juan Police Station. The
Solicitor
General
invokes Nazareno
v. Station Commander, etc., et al., 16 one
of the seven (7) cases consolidated with In
the Matter of the Petition for Habeas
Corpus of Roberto Umil, etc., v. Ramos, et
al. 17 where a majority of the Court upheld
a warrantees arrest as valid although
effected fourteen (14) days after the
killing in connection with which Nazareno
had been arrested. Accordingly, in the
view of the Solicitor General, the
provisions of Section 7, Rule 112 of the
Rules of Court were applicable and
because petitioner had declined to waive
the provisions of Article 125 of the Revised
Penal Code, the Prosecutor was legally
justified in filing the information for
murder
even
without
preliminary
investigation.
On the other hand, petitioner argues that
he was not lawfully arrested without
warrant because he went to the police
station six (6) days after the shooting
which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been
"just committed" at the time that he was
arrested. Moreover, none of the police
officers who arrested him had been an
eyewitness to the shooting of Maguan and
accordingly none had the "personal
knowledge" required for the lawfulness of
a warrantees arrest. Since there had been
no lawful warrantless arrest. Section 7,

Rule 112 of the Rules of Court which

establishes the only exception to the right
to preliminary investigation, could not
apply in respect of petitioner.
The reliance of both petitioner and the
Solicitor General upon Umil v. Ramos is, in
the circumstances of this case, misplaced.
In Umil v. Ramos, by an eight-to-six vote,
the Court sustained the legality of the
warrantless arrests of petitioners made
from one (1) to fourteen days after the
actual commission of the offenses, upon
the ground that such offenses constituted
"continuing crimes." Those offenses were
subversion, membership in an outlawed
organization like the New People's Army,
etc. In the instant case, the offense for
which petitioner was arrested was murder,
an
offense
which
was
obviously
commenced and completed at one definite
location in time and space. No one had
pretended that the fatal shooting of
Maguan was a "continuing crime."
Secondly, we do not believe that the
warrantees "arrest" or detention of
petitioner in the instant case falls within
the terms of Section 5 of Rule 113 of the
1985 Rules on Criminal Procedure which
provides as follows:
Sec. 5 Arrest without warrant; when
lawful. A peace officer or a private
person may, without warrant, arrest a
person:
(a) When, in his presence, the person to
be arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been
committed,
and
he
has
personal
knowledge of facts indicating that the
person to be arrested has committed it;
and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or temporarily confined
while his case is pending, or has escaped
while
being
transferred
from
one
confinement to another.
In cases falling under paragraphs (a) and
(b) hereof, the person arrested without a
warrant shall be forthwith delivered to the
nearest police station or jail, and he shall
be proceed against in accordance with
Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days

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

If the case has been filed in court without

a preliminary investigation having been
first conducted, the accused may within
five (5) days from the time he learns of
the filing of the information, ask for a
preliminary investigation with the same
right to adduce evidence in his favor in the
manner prescribed in this Rule. (Emphasis
supplied)
is also not applicable. Indeed, petitioner
was not arrested at all. When he walked
into San Juan Police Station, accompanied
by two (2) lawyers, he in fact placed
himself at the disposal of the police
authorities. He did not state that he was
"surrendering" himself, in all probability to
avoid the implication he was admitting
that he had slain Eldon Maguan or that he
was otherwise guilty of a crime. When the
police filed a complaint for frustrated
homicide with the Prosecutor, the latter
should have immediately scheduled a
preliminary investigation to determine
whether there was probable cause for
charging petitioner in court for the killing
of Eldon Maguan. Instead, as noted earlier,
the
Prosecutor
proceed
under the
erroneous supposition that Section 7 of
Rule 112 was applicable and required
petitioner to waive the provisions of Article
125 of the Revised Penal Code as a
condition for carrying out a preliminary
investigation. This was substantive error,
for petitioner was entitled to a preliminary
investigation and that right should have
been
accorded
him
without
any
conditions. Moreover, since petitioner had
not been arrested, with or without a
warrant, he was also entitled to be
released forthwith subject only to his
appearing at the preliminary investigation.
Turning to the second issue of whether or
not petitioner had waived his right to
preliminary investigation, we note that
petitioner had from the very beginning
demanded that a preliminary investigation
be conducted. As earlier pointed out, on
the same day that the information for
murder was filed with the Regional Trial
Court, petitioner filed with the Prosecutor
an omnibus motion for immediate release
and preliminary investigation. The Solicitor
General contends that that omnibus
motion should have been filed with the
trial court and not with the Prosecutor, and

that the petitioner should accordingly be

held to have waived his right to
preliminary investigation. We do not
believe
that
waiver of petitioner's
statutory right to preliminary investigation
may be predicated on such a slim basis.
The preliminary investigation was to be
conducted by the Prosecutor, not by the
Regional Trial Court. It is true that at the
time of filing of petitioner's omnibus
motion, the information for murder had
already been filed with the Regional Trial
Court: it is not clear from the record
whether petitioner was aware of this fact
at the time his omnibus motion was
actually
filed
with
the
Prosecutor.
In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted
by the fiscal for the purpose of
determining whether a prima facie case
exists to warranting the prosecution of the
accused is terminated upon the filing of
the information in the proper court. In
turn, as above stated, the filing of said
information sets in motion the criminal
action
against
the
accused
in
Court. Should the fiscal find it proper to
conduct a reinvestigation of the case, at
such stage, the permission of the Court
must
be
secured. After
such
reinvestigation
the
finding
and
recommendations of the fiscal should be
submitted to the Court for appropriate
action. While it is true that the fiscal has
the quasi-judicial discretion to determine
whether or not a criminal case should be
filed in court or not, once the case had
already been brought to Court whatever
disposition the fiscal may feel should be
proper in the case thereafter should be
addressed for the consideration of the
Court. The only qualification is that the
action of the Court must not impair the
substantial rights of the accused., or the
right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is
that once a complaint or information is
filed in Court any disposition of the case
[such] as its dismissal or the conviction or
acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal
retains the direction and control of the
prosecution of criminal cases even while
the case is already in Court he cannot

impose his opinion on the trial court. The

Court is the best and sole judge on what
to
do
with
the
case
before
it. . . . 20 (Citations omitted; emphasis
supplied)
Nonetheless, since petitioner in his
omnibus
motion
was
asking
for
preliminary investigation and not for a reinvestigation (Crespo v. Mogul involved
a re-investigation), and
since
the
Prosecutor himself did file with the trial
court, on the 5th day after filing the
information for murder, a motion for leave
to conduct preliminary investigation
(attaching to his motion a copy of
petitioner's omnibus motion), we conclude
that petitioner's omnibus motion was in
effect filed with the trial court. What was
crystal clear was that petitioner did ask for
a preliminary investigation on the very
day that the information was filed without
such preliminary investigation, and that
the trial court was five (5) days later
apprised of the desire of the petitioner for
such preliminary investigation. Finally, the
trial
court did
in
fact grant
the
Prosecutor's prayer for leave to conduct
preliminary investigation. Thus, even on
the (mistaken) supposition apparently
made by the Prosecutor that Section 7 of
Rule 112 of the Revised Court was
applicable, the 5-day reglementary period
in Section 7, Rule 112 must be held to
have been substantially complied with.
We believe and so hold that petitioner did
not waive his right to a preliminary
investigation. While that right is statutory
rather
than
constitutional
in
its
fundament, since it has in fact been
established by statute, it is a component
part
of
due
process
in
criminal
justice. 21 The right to have a preliminary
investigation conducted before being
bound over to trial for a criminal offense
and hence formally at risk of incarceration
or some other penalty, is not a mere
formal
or
technical
right;
it
is
a substantive right. The accused in a
criminal trial is inevitably exposed to
prolonged
anxiety,
aggravation,
humiliation, not to speak of expense; the
right to an opportunity to avoid a process
painful to any one save, perhaps, to
hardened criminals, is a valuable right. To
deny petitioner's claim to a preliminary

investigation would be to deprive him the

full measure of his right to due process.
The question may be raised whether
petitioner still retains his right to a
preliminary investigation in the instant
case considering that he was already
arraigned on 23 August 1991. The rule is
that the right to preliminary investigation
is waived when the accused fails to invoke
it before or at the time of entering a
plea at arraignment.22 In the instant case,
petitioner Go had vigorously insisted on
his
right
to
preliminary
investigation before his arraignment.At
the time of his arraignment, petitioner was
already before the Court of Appeals
on certiorari,
prohibition
and mandamusprecisely asking for a
preliminary investigation before being
forced to stand trial.
Again, in the circumstances of this case,
we do not believe that by posting bail
petitioner had waived his right to
preliminary
investigation.
In People
v. Selfaison, 23 we did hold that appellants
there had waived their right to preliminary
investigation because immediately after
their arrest, they filed bail and proceeded
to trial "without previously claiming that
they did not have the benefit of a
preliminary investigation." 24 In the instant
case, petitioner Go asked for release on
recognizance or on bail and for preliminary
investigation in one omnibus motion. He
had thus claimed his right to preliminary
investigation before respondent
Judge
approved the cash bond posted by
petitioner and ordered his release on 12
July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary
investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in
court asking for leave to conduct
preliminary investigation, he clearly if
impliedly recognized that petitioner's
claim to preliminary investigation was a
legitimate one.
We would clarify, however, that contrary
to petitioner's contention the failure to
accord preliminary investigation, while
constituting a denial of the appropriate
and full measure of the statutory process
of criminal justice, did not impair the
validity of the information for murder nor
affect the jurisdiction of the trial court. 25

It must also be recalled that the

Prosecutor had actually agreed that
petitioner was entitled to bail. This was
equivalent to an acknowledgment on the
part of the Prosecutor that the evidence of
guilt then in his hands was not strong.
Accordingly, we consider that the 17 July
1991 order of respondent Judge recalling
his own order granting bail and requiring
petitioner to surrender himself within
forty-eight (48) hours from notice, was
plainly arbitrary considering that no
evidence
at
all

and
certainly
no new or additional evidence had been
submitted to respondent Judge that could
have justified the recall of his order issued
just five (5) days before. It follows that
petitioner was entitled to be released on
bail as a matter of right.
The final question which the Court must
face is this: how does the fact that, in the
instant case, trial on the merits has
already commenced, the Prosecutor
having
already
presented
four
(4)
witnesses, impact upon, firstly, petitioner's
right to a preliminary investigation and,
secondly, petitioner's right to be released
on bail? Does he continue to be entitled to
have
a
preliminary
investigation
conducted in respect of the charge against
him? Does petitioner remain entitled to be
released on bail?
Turning first to the matter of preliminary
investigation, we consider that petitioner
remains
entitled
to
a
preliminary
investigation although trial on the merits
has already began. Trial on the merits
should be suspended or held in abeyance
and a preliminary investigation forthwith
accorded to petitioner. 26 It is true that the
Prosecutor might, in view of the evidence
that he may at this time have on hand,
conclude that probable cause exists; upon
the
other
hand,
the
Prosecutor
conceivably could reach the conclusion
that the evidence on hand does not
warrant a finding of probable cause. In any
event, the constitutional point is that
petitioner was not accorded what he was
entitled to by way of procedural due
process. 27 Petitioner
was
forced
to
undergo arraignment and literally pushed
to trial without preliminary investigation,
with extraordinary haste, to the applause
from the audience that filled the

courtroom. If he submitted to arraignment

at trial, petitioner did so "kicking and
screaming," in a manner of speaking .
During the proceedings held before the
trial court on 23 August 1991, the date set
for arraignment of petitioner, and just
before arraignment, counsel made very
clear petitioner's vigorous protest and
objection to the arraignment precisely
because of the denial of preliminary
investigation. 28 So
energetic
and
determined were petitioner's counsel's
protests and objections that an obviously
angered court and prosecutor dared him
to withdraw or walkout, promising to
replace him with counsel de oficio. During
the trial, before the prosecution called its
first witness, petitioner through counsel
once again reiterated his objection to
going
to
trial
without
preliminary
investigation: petitioner's counsel made of
record
his
"continuing
objection." 29 Petitioner had promptly gone
to the appellate court on certiorari and
prohibition to challenge the lawfulness of
the procedure he was being forced to
undergo and the lawfulness of his
detention. 30 If he did not walk out on the
trial, and if he cross-examined the
prosecution's witnesses, it was because he
was extremely loath to be represented by
counsel de oficio selected by the trial
judge, and to run the risk of being held to
have waived also his right to use what is
frequently the only test of truth in the
judicial process.
In respect of the matter of bail, we
similarly believe and so hold that
petitioner remains entitled to be released
on bail as a matter of right. Should the
evidence already of record concerning
petitioner's guilt be, in the reasonable
belief of the Prosecutor, strong, the
Prosecutor may move in the trial court for
cancellation of petitioner's bail. It would
then be up to the trial court, after a careful
and objective assessment of the evidence
on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusions here, that
is, to hold that petitioner's rights to a
preliminary investigation and to bail were
effectively
obliterated
by
evidence
subsequently admitted into the record
would be to legitimize the deprivation of

due
process
and
to
permit
the
Government to benefit from its own wrong
or culpable omission and effectively to
dilute important rights of accused persons
well-nigh to the vanishing point. It may be
that to require the State to accord
petitioner his rights to a preliminary
investigation
and
to
bail
at
this
point, could turn out ultimately to be
largely a ceremonial exercise. But the
Court is not compelled to speculate. And,
in any case, it would not be idle ceremony;
rather, it would be a celebration by the
State of the rights and liberties of its own
people and a re-affirmation of its
obligation and determination to respect
those rights and liberties.
ACCORDINGLY, the Court resolved to
GRANT
the
Petition
for
Review
on Certiorari. The Order of the trial court
dated 17 July 1991 is hereby SET ASIDE
and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September
1991 hereby REVERSED.
The Office of the Provincial Prosecutor is
hereby ORDERED to conduct forthwith a
preliminary investigation of the charge of
murder against petitioner Go, and to
complete such preliminary investigation
within a period of fifteen (15) days from
commencement thereof. The trial on the
merits of the criminal case in the Regional
Trial Court shall be SUSPENDED to await
the
conclusion
of
the
preliminary
investigation.
Meantime, petitioner is hereby ORDERED
released forthwith upon posting of a cash
bail bond of One Hundred Thousand Pesos
(P100,000.00). This release shall be
without prejudice to any lawful order that
the trial court may issue, should the Office
of the Provincial Prosecutor move for
cancellation of bail at the conclusion of the
preliminary investigation.
No pronouncement as to costs. This
Decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Bidin, Medialdea, Romero
and Nocon, JJ., concur.

Separate Opinions
GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned

by Mr. Justice Florentino P. Feliciano but
am at a loss for reasons why an
experienced Judge should insist on
proceeding to trial in a sensational murder
case without preliminary investigation
inspite of the vigorous and continued
objection and reservation of rights of the
accused
and
notwithstanding
the
recommendations of the Prosecutor that
those rights must be respected. If the
Court had faithfully followed the Rules,
trial would have proceeded smoothly and
if the accused is really guilty, then he may
have been convicted by now. As it is, the
case has to go back to square one.
I agree with Justice Isagani Cruz "that the
trial court has (apparently) been moved by
a desire to cater to public opinion to the
detriment of the impartial administration
of justice." Mass media has its duty to
fearlessly but faithfully inform the public
about events and persons. However, when
a case has received wide and sensational
publicity, the trial court should be doubly
careful not only to be fair and impartial
but also to give the appearanceof
complete objectivity in its handling of the
case.
The need for a trial court to follow the
Rules and to be fair, impartial, and
persistent in getting the true facts of a
case is present in all cases but it is
particularly important if the accused is
indigent; more so, if he is one of those
unfortunates who seem to spend more
time behind bars than outside. Unlike the
accused in this case who enjoys the
assistance of competent counsel, a poor
defendant
convicted
by
wide
and
unfavorable media coverage may be
presumed guilty before trial and be unable
to defend himself properly. Hence, the
importance of the court always following
the Rules.
While
concurring
with
Justice
Feliciano's ponencia, I am constrained to
add the foregoing observations because I
feel they form an integral part of the
Court's decision.
CRUZ, J., concurring:
I was one of the members of the Court
who initially felt that the petitioner had
waived
the
right
to
preliminary
investigation
because
he
freely

participated in his trial and his counsel

even cross-examined the prosecution
witnesses. A closer study of the record,
however, particularly of the transcript of
the
proceedings
footnoted
in
theponencia, reveals that he had from the
start
demanded
a
preliminary
investigation and that his counsel had
reluctantly participated in the trial only
because the court threatened to replace
him with a counsel de oficio if he did not.
Under the circumstances, I am convinced
that there was no waiver. The petitioner
was virtually compelled to go to trial. Such
compulsion and unjustified denial of a
clear statutory right of the petitioner
vitiated the proceedings as violative of
procedural due process.
It is true that the ruling we lay down here
will take the case back to square one, so
to speak, but that is not the petitioner's
fault. He had the right to insist that the
procedure prescribed by the Rules of Court
be strictly observed. The delay entailed by
the procedural lapse and the attendant
expense imposed on the Government and
the defendant must be laid at the door of
the trial judge for his precipitate and
illegal action.
It appears that the trial court has been
moved by a desire to cater to public
opinion to the detriment of the impartial
administration of justice. The petitioner as
portrayed by the media is not exactly a
popular person. Nevertheless, the trial
court should not have been influenced by
this irrelevant consideration, remembering
instead that its only guide was the
mandate of the law.
GRIO-AQUINO, J., dissenting:
I regret that I cannot agree with the
majority opinion in this case. At this point,
after four (4) prosecution witnesses have
already
testified,
among
them
an
eyewitness who identified the accused as
the gunman who shot Eldon Maguan
inside his car in cold blood, and a security
guard who identified the plate number of
the gunman's car, I do not believe that
there is still need to conduct a preliminary
investigation the sole purpose of which
would be to ascertain if there is sufficient
ground to believe that a crime was
committed (which the petitioner does not

dispute) and that he (the petitioner) is

probably guilty thereof (which the
prosecutor, by filing the information
against him, presumably believed to be
so).
In the present stage of the presentation of
the prosecution's evidence, to return the
case to the Prosecutor to conduct a
preliminary investigation under Rule 112
of the 1985 Rule on Criminal Procedure
would be supererogatory.
This case did not suffer from a lack of
previous investigation. Diligent police
work, with ample media coverage, led to
the identification of the suspect who,
seven (7) days after the shooting,
appeared at the San Juan police station to
verify news reports that he was the object
of a police manhunt. Upon entering the
station, he was positively identified as the
gunman by an eyewitness who was being
interrogated by the police to ferret more
clues and details about the crime. The
police thereupon arrested the petitioner
and on the same day, July 8, 1991,
promptly
filed
with
the
Provincial
Prosecutor of Rizal, a complaint for
frustrated homicide against him. As the
victim died the next day, July 9, 1991,
before an information could be filed, the
First Assistant Prosecutor, instead of filing
an information for frustrated homicide,
filed an information for murder on July 11,
1991 in the Regional Trial Court, with no
bail recommended.
However, the Provincial Prosecutor, acting
on the petitioner's omnibus motion for
preliminary investigation and release on
bail (which was erroneously filed with his
office instead of the court), recommended
a cash bond of P100,000 for his release,
and submitted the omnibus motion to the
trial court for resolution.
Respondent Judge Benjamin Pelayo must
have realized his impetuosity shortly after
he had issued: (a) his order of July 12,
1991 approving the petitioner's cash bail
bond without a hearing, and (b) his order
of July 16, 1991 granting the Prosecutor
leave
to
conduct
a
preliminary
investigation, for he motu propio issued on
July 17, 1991 another order rescinding his
previous orders and setting for hearing the
petitioner's application for bail.

The cases cited in page 15 of the majority

opinion in support of the view that the trial
of the case should be suspended and that
the prosecutor should now conduct a
preliminary investigation, are not on all
fours
with
this
case.
In Doromal
vs. Sandiganbayan, 177
SCRA
354
and People vs. Monton, 23 SCRA 1024, the
trial of the criminal case had not yet
commenced because motions to quash
the information were filed by the
accused.Lozada vs. Hernandez, 92 Phil.
1053; U.S. vs. Banzuela, 31 Phil. 565; San
Diego
vs. Hernandez, 24
SCRA
110
and People vs. Oandasan, 25 SCRA 277
are also inapplicable because in those
cases preliminary investigations had in
fact
been
conducted
before
the
informations were filed in court.
It should be remembered that as
important as is the right of the accused to
a preliminary investigation, it is not a
constitutional right. Its absence is not a
ground to quash the information (Doromal
vs. Sandiganbayan, 177 SCRA 354). It
does not affect the court's jurisdiction, nor
impair the validity of the information
(Rodis vs. Sandiganbayan, 166 SCRA 618),
nor constitute an infringement of the right
of the accused to confront witnesses
(Bustos vs. Lucero, 81 Phil. 640).
The petitioner's motion for a preliminary
investigation is not more important than
his application for release on bail, just as
the
conduct
of
such
preliminary
investigation is not more important than
the hearing of the application for bail. The
court's hearing of the application for bail
should not be subordinated to the
preliminary investigation of the charge.
The hearing should not be suspended, but
should be allowed to proceed for it will
accomplish a double purpose. The parties
will have an opportunity to show not only:
(1) whether or not there is probable cause
to believe that the petitioner killed Eldon
Maguan, but more importantly (b) whether
or not the evidence of his guilt is strong.
The judge's determination that the
evidence of his guilt is strong would
naturally foreclose the need for a
preliminary investigation to ascertain the
probability of his guilt.
The bail hearing may not be suspended
because upon the filing of an application

for bail by one accused of a capital

offense, "the judge is under a legal
obligation to receive evidence with the
view of determining whether evidence of
guilt is so strong as to warrant denial of
bond." (Payao vs. Lesaca, 63 Phil. 210;
Hadhirul Tahil vs. Eisma, 64 SCRA 378;
Peralta vs. Ramos and Provincial Fiscal of
Isabela, 71 Phil. 271; Padilla vs. Enrile, 121
SCRA 472; Ilagan vs. Ponce Enrile, 139
SCRA 349; People vs. Albofera, 152 SCRA
123)
The abolition of the death penalty did not
make the right to bail absolute, for
persons charged with offenses punishable
by reclusion perpetua, when evidence of
guilt is strong, are not bailable (Sec. 3, Art.
III,
1987
Constitution).
In People
vs. Dacudao, 170 SCRA 489, we called
down the trial court for having granted the
motion for bail in a murder case without
any hearing and without giving the
prosecution an opportunity to comment or
file objections thereto.
Similarly this Court held in People
vs. Bocar, 27 SCRA 512:
. . . due process also demands that in the
matter of bail the prosecution should be
afforded full opportunity to present proof
of the guilt of the accused. Thus, if it were
true that the prosecution in this case was
deprived of the right to present its
evidence against the bail petition, or that
the order granting such petition was
issued upon incomplete evidence, then
the issuance of the order would really
constitute abuse of discretion that would
call for the remedy of certiorari. (Emphasis
supplied.)
The petitioner may not be released
pending the hearing of his petition for bail
for it would be incongruous to grant bail to
one who is not in the custody of the law
(Feliciano vs. Pasicolan, 2 SCRA 888).
I respectfully take exception to the
statements in the ponencia that the
"petitioner was not arrested at all" (p. 12)
and that "petitioner had not been
arrested, with or without a warrant" (p.
130). Arrest is the taking of the person
into the custody in order that he may be
bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court).
An arrest is made by an actual restraint of
the person to be arrested, or by his

submission to the custody of the person

making the arrest (Sec. 2, Rule 113, Rules
of Court). When Go walked into the San
Juan Police Station on July 8, 1991, and
placed himself at the disposal of the police
authorities who clamped him in jail after
he was identified by an eyewitness as the
person who shot Maguan, he was actually
and effectively arrested. His filing of a
petition to be released on bail was a
waiver of any irregularity attending his
arrest and estops him from questioning its
validity (Callanta vs. Villanueva, 77 SCRA
377; Bagcal vs. Villaraza, 120 SCRA 525).
I vote to dismiss the petition and affirm
the trial court's order of July 17, 1991.
Melencio-Herrera, Paras, Padilla, Regalado
and Davide, Jr., JJ., concur.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur in the majority decision penned
by Mr. Justice Florentino P. Feliciano but
am at a loss for reasons why an
experienced Judge should insist on
proceeding to trial in a sensational murder
case without preliminary investigation
inspite of the vigorous and continued
objection and reservation of rights of the
accused
and
notwithstanding
the
recommendations of the Prosecutor that
those rights must be respected. If the
Court had faithfully followed the Rules,
trial would have proceeded smoothly and
if the accused is really guilty, then he may
have been convicted by now. As it is, the
case has to go back to square one.
I agree with Justice Isagani Cruz "that the
trial court has (apparently) been moved by
a desire to cater to public opinion to the
detriment of the impartial administration
of justice." Mass media has its duty to
fearlessly but faithfully inform the public
about events and persons. However, when
a case has received wide and sensational
publicity, the trial court should be doubly
careful not only to be fair and impartial
but also to give the appearanceof
complete objectivity in its handling of the
case.
The need for a trial court to follow the
Rules and to be fair, impartial, and
persistent in getting the true facts of a
case is present in all cases but it is

particularly important if the accused is

indigent; more so, if he is one of those
unfortunates who seem to spend more
time behind bars than outside. Unlike the
accused in this case who enjoys the
assistance of competent counsel, a poor
defendant
convicted
by
wide
and
unfavorable media coverage may be
presumed guilty before trial and be unable
to defend himself properly. Hence, the
importance of the court always following
the Rules.
While
concurring
with
Justice
Feliciano's ponencia, I am constrained to
add the foregoing observations because I
feel they form an integral part of the
Court's decision.
CRUZ, J., concurring:
I was one of the members of the Court
who initially felt that the petitioner had
waived
the
right
to
preliminary
investigation
because
he
freely
participated in his trial and his counsel
even cross-examined the prosecution
witnesses. A closer study of the record,
however, particularly of the transcript of
the
proceedings
footnoted
in
theponencia, reveals that he had from the
start
demanded
a
preliminary
investigation and that his counsel had
reluctantly participated in the trial only
because the court threatened to replace
him with a counsel de oficio if he did not.
Under the circumstances, I am convinced
that there was no waiver. The petitioner
was virtually compelled to go to trial. Such
compulsion and unjustified denial of a
clear statutory right of the petitioner
vitiated the proceedings as violative of
procedural due process.
It is true that the ruling we lay down here
will take the case back to square one, so
to speak, but that is not the petitioner's
fault. He had the right to insist that the
procedure prescribed by the Rules of Court
be strictly observed. The delay entailed by
the procedural lapse and the attendant
expense imposed on the Government and
the defendant must be laid at the door of
the trial judge for his precipitate and
illegal action.
It appears that the trial court has been
moved by a desire to cater to public
opinion to the detriment of the impartial

administration of justice. The petitioner as

portrayed by the media is not exactly a
popular person. Nevertheless, the trial
court should not have been influenced by
this irrelevant consideration, remembering
instead that its only guide was the
mandate of the law.
GRIO-AQUINO, J., dissenting:
I regret that I cannot agree with the
majority opinion in this case. At this point,
after four (4) prosecution witnesses have
already
testified,
among
them
an
eyewitness who identified the accused as
the gunman who shot Eldon Maguan
inside his car in cold blood, and a security
guard who identified the plate number of
the gunman's car, I do not believe that
there is still need to conduct a preliminary
investigation the sole purpose of which
would be to ascertain if there is sufficient
ground to believe that a crime was
committed (which the petitioner does not
dispute) and that he (the petitioner) is
probably guilty thereof (which the
prosecutor, by filing the information
against him, presumably believed to be
so).
In the present stage of the presentation of
the prosecution's evidence, to return the
case to the Prosecutor to conduct a
preliminary investigation under Rule 112
of the 1985 Rule on Criminal Procedure
would be supererogatory.
This case did not suffer from a lack of
previous investigation. Diligent police
work, with ample media coverage, led to
the identification of the suspect who,
seven (7) days after the shooting,
appeared at the San Juan police station to
verify news reports that he was the object
of a police manhunt. Upon entering the
station, he was positively identified as the
gunman by an eyewitness who was being
interrogated by the police to ferret more
clues and details about the crime. The
police thereupon arrested the petitioner
and on the same day, July 8, 1991,
promptly
filed
with
the
Provincial
Prosecutor of Rizal, a complaint for
frustrated homicide against him. As the
victim died the next day, July 9, 1991,
before an information could be filed, the
First Assistant Prosecutor, instead of filing
an information for frustrated homicide,

filed an information for murder on July 11,

1991 in the Regional Trial Court, with no
bail recommended.
However, the Provincial Prosecutor, acting
on the petitioner's omnibus motion for
preliminary investigation and release on
bail (which was erroneously filed with his
office instead of the court), recommended
a cash bond of P100,000 for his release,
and submitted the omnibus motion to the
trial court for resolution.
Respondent Judge Benjamin Pelayo must
have realized his impetuosity shortly after
he had issued: (a) his order of July 12,
1991 approving the petitioner's cash bail
bond without a hearing, and (b) his order
of July 16, 1991 granting the Prosecutor
leave
to
conduct
a
preliminary
investigation, for he motu propio issued on
July 17, 1991 another order rescinding his
previous orders and setting for hearing the
petitioner's application for bail.
The cases cited in page 15 of the majority
opinion in support of the view that the trial
of the case should be suspended and that
the prosecutor should now conduct a
preliminary investigation, are not on all
fours
with
this
case.
In Doromal
vs. Sandiganbayan, 177
SCRA
354
and People vs. Monton, 23 SCRA 1024, the
trial of the criminal case had not yet
commenced because motions to quash
the information were filed by the
accused.Lozada vs. Hernandez, 92 Phil.
1053; U.S. vs. Banzuela, 31 Phil. 565; San
Diego
vs. Hernandez, 24
SCRA
110
and People vs. Oandasan, 25 SCRA 277
are also inapplicable because in those
cases preliminary investigations had in
fact
been
conducted
before
the
informations were filed in court.
It should be remembered that as
important as is the right of the accused to
a preliminary investigation, it is not a
constitutional right. Its absence is not a
ground to quash the information (Doromal
vs. Sandiganbayan, 177 SCRA 354). It
does not affect the court's jurisdiction, nor
impair the validity of the information
(Rodis vs. Sandiganbayan, 166 SCRA 618),
nor constitute an infringement of the right
of the accused to confront witnesses
(Bustos vs. Lucero, 81 Phil. 640).
The petitioner's motion for a preliminary
investigation is not more important than

his application for release on bail, just as

the
conduct
of
such
preliminary
investigation is not more important than
the hearing of the application for bail. The
court's hearing of the application for bail
should not be subordinated to the
preliminary investigation of the charge.
The hearing should not be suspended, but
should be allowed to proceed for it will
accomplish a double purpose. The parties
will have an opportunity to show not only:
(1) whether or not there is probable cause
to believe that the petitioner killed Eldon
Maguan, but more importantly (b) whether
or not the evidence of his guilt is strong.
The judge's determination that the
evidence of his guilt is strong would
naturally foreclose the need for a
preliminary investigation to ascertain the
probability of his guilt.
The bail hearing may not be suspended
because upon the filing of an application
for bail by one accused of a capital
offense, "the judge is under a legal
obligation to receive evidence with the
view of determining whether evidence of
guilt is so strong as to warrant denial of
bond." (Payao vs. Lesaca, 63 Phil. 210;
Hadhirul Tahil vs. Eisma, 64 SCRA 378;
Peralta vs. Ramos and Provincial Fiscal of
Isabela, 71 Phil. 271; Padilla vs. Enrile, 121
SCRA 472; Ilagan vs. Ponce Enrile, 139
SCRA 349; People vs. Albofera, 152 SCRA
123)
The abolition of the death penalty did not
make the right to bail absolute, for
persons charged with offenses punishable
by reclusion perpetua, when evidence of
guilt is strong, are not bailable (Sec. 3, Art.
III,
1987
Constitution).
In People
vs. Dacudao, 170 SCRA 489, we called
down the trial court for having granted the
motion for bail in a murder case without
any hearing and without giving the
prosecution an opportunity to comment or
file objections thereto.
Similarly this Court held in People
vs. Bocar, 27 SCRA 512:
. . . due process also demands that in the
matter of bail the prosecution should be
afforded full opportunity to present proof
of the guilt of the accused. Thus, if it were
true that the prosecution in this case was
deprived of the right to present its
evidence against the bail petition, or that

the order granting such petition was

issued upon incomplete evidence, then
the issuance of the order would really
constitute abuse of discretion that would
call for the remedy of certiorari. (Emphasis
supplied.)
The petitioner may not be released
pending the hearing of his petition for bail
for it would be incongruous to grant bail to
one who is not in the custody of the law
(Feliciano vs. Pasicolan, 2 SCRA 888).
I respectfully take exception to the
statements in the ponencia that the
"petitioner was not arrested at all" (p. 12)
and that "petitioner had not been
arrested, with or without a warrant" (p.
130). Arrest is the taking of the person
into the custody in order that he may be
bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court).
An arrest is made by an actual restraint of
the person to be arrested, or by his
submission to the custody of the person
making the arrest (Sec. 2, Rule 113, Rules
of Court). When Go walked into the San
Juan Police Station on July 8, 1991, and
placed himself at the disposal of the police
authorities who clamped him in jail after
he was identified by an eyewitness as the
person who shot Maguan, he was actually
and effectively arrested. His filing of a
petition to be released on bail was a
waiver of any irregularity attending his
arrest and estops him from questioning its
validity (Callanta vs. Villanueva, 77 SCRA
377; Bagcal vs. Villaraza, 120 SCRA 525).
I vote to dismiss the petition and affirm
the trial court's order of July 17, 1991.
Melencio-Herrera, Paras, Padilla, Regalado
and Davide, Jr., JJ., concur.
Footnotes
JOSE U. ONG and G.R. No. 126858
NELLY M. ONG,
Petitioners, Present:
PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ ,
CALLEJO, SR.,
TINGA, and
SANDIGANBAYAN
(THIRD
NAZARIO, JJ.
DIVISION) and OFFICE OF

CHICO-

THE OMBUDSMAN,
Respondents. Promulgated:
September 16, 2005
x
-------------------------------------------------------------------x
DECISION
TINGA, J.:
This Petition
for
Certiorari,[1] dated
December 13, 1996 seeks the nullification
of theResolutions of the Sandiganbayan
dated August 18, 1994[2] and October 22,
1996.[3] The
first
assailed Resolution denied
petitioners
motion to dismiss the petition for
forfeiture filed against them, while the
second questioned Resolution denied their
motion for reconsideration.
The antecedents are as follows:
Congressman
Bonifacio
H.
Gillego
executed
a Complaint-Affidavit[4] on
February 4, 1992, claiming that petitioner
Jose U. Ong, then Commissioner of the
Bureau of Internal Revenue (BIR), has
amassed
properties
worth
disproportionately more than his lawful
income. The complaint pertinently states:
In his Statement of Assets and Liabilities
as of December 31, 1989 (Annex A),
Commissioner
Jose
U.
Ong
declared P750,000.00 as his cash on hand
and in banks. Within a short period
thereafter, he was able to acquire prime
real estate properties mostly in the
millionaires choice areas in Alabang,
Muntinglupa, Metro Manila costing millions
of pesos as follows:
1.
A house and lot in Alabang bought on
October 9, 1990 for P5,500,000.00, now
titled in the name of Jose U. Ong under
Transfer Certificate of Title No. 172168,
Registry of Deeds for Makati (Annexes B &
C);

2.
Another lot in Alabang bought
for P5,700,000.00, now titled in the name
of Jose U. Ong and Nelly M. Ong under
Transfer Certificate of Title No. 173901.
Registered on January 25, 1991 in the
Registry of Deeds for Makati (Annex D);

3.
Still another lot in Alabang bought
for P4,675,000.00 on January 16, 1991,
now titled in the name of spouses Jose U.
Ong and Nelly Mercado Ong under
Transfer Certificate of Title No. 173760 in
the Registry of Deeds for Makati (Annexes
E and F);

promptly submitted* with

recommendation:

the

following

1.
Forfeiture Proceedings be instituted
against the properties of Jose U. Ong
which he illegitimately acquired in just a
span of two (2) years as Commissioner of
the Bureau of Internal Revenue. Such
properties are briefly specified as follows:
a)
House and lot in Ayala Alabang
bought on October 9, 1990 for P5.5 million
under TCT No. 172168 of the Registry of
Deeds for Makati, Metro Manila;
b)
Lot in Ayala Alabang bought on
January 23, 1991 for P5.5 million under
TCT No. 173901;

4.
Again, another lot in Alabang bought
on December 3, 1990 for P5,055,000.00,
now titled in the name of the Children of
Commissioner Ong and his son-in-law
under transfer Certificate of Title No.
173386 in the Registry of Deeds for Makati
(Annex G and H);

c)
Lot in Ayala Alabang bought on
January 16, 1991 for P4,675,000.00 under
TCT No. 173760;

5.
Again, a lot in Makati bought
for P832,000.00 on July 1, 1990, now titled
in the name of the Daughter of
Commissioner Ong and his son-in-law
under transfer certificate of title No.
171210 in the Registry of Deeds of Makati
(Annex I & J).

e)
Condominium Unit 804, located at
the eight floor of the Asian Mansion,
bought forP744,585.00 under CCT No.
20735 of the Registry of Deeds for Makati,
Metro Manila.[8]

The above documented purchases of

Commissioner Ong alone which are worth
millions
of
pesos
are
obviously
disproportionate to his income of just a
little more than P200,000.00 per annum.[5]
Ong submitted an explanation and
analysis of fund sourcing, reporting his net
worth covering the calendar years 1989 to
1991 and showing his sources and uses of
funds, the sources of the increase in his
net worth and his net worth as of
December 13, 1991.[6]
The Director* of the Fact-Finding and
Intelligence Bureau of the Office of the
Ombudsman (Ombudsman) ordered the
conduct of a pre-charge investigation on
the matter. AFact-Finding Report[7] was

d)
Lot in Ayala Alabang bought on
December 3, 1990 for P5,055,000.00
under TCT No. 173386; and

Finding that a preliminary inquiry under

Sec. 2 of Republic Act No. 1379 (RA 1379)
should be conducted, Ong was directed to
submit his counter-affidavit and other
controverting
evidence
in
the Order[9] dated November 18, 1992. For
this purpose, Ong was furnished copies of
Gillegos Complaint-Affidavit and the FactFinding
Report, with
annexes
and
supporting documents.
Ong
filed
a Counter-Affidavit[10] dated
December 21, 1992, submitting his
Statement of Assets and Liabilities for the
years 1988-1990, income tax return for
1988, bank certificate showing that he
obtained a loan from Allied Banking
Corporation (Allied Bank), certificate from
SGV & Co. (SGV) showing that he received
retirement benefits from the latter, a
document entitled Acknowledgement of

Trust showing that he acquired one of the

questioned assets for his brother-in-law,
and other documents explaining the
sources of funds with which he acquired
the questioned assets.

credit agreements, receipt of payment on

amortization of the loan, if any, and such
other pertinent documents that will show
existence and availment of the loan
granted;

In view of Ongs arguments,

the
Ombudsman
issued
another Order[11] dated February 11, 1993,
the pertinent portions of which state:

b)
All documents in his possession that
he was indeed granted by SGV and
Co. P7.8 million as retirement benefits
including such additional benefits as
claimed as evidenced by vouchers,
accounting
records,
computation
of
benefits, that would signify fact of receipt
of the claimed retirement benefits;

Results of the subpoena duces tecum ad

testificandum issued to Allied Banking
Corporation, Sycip, Gorres, Velayo & Co.,
including the BIR insofar as it pertains to
the production of the documents that
respondents claimed in justification of the
sources of his funding/income, proved
negative since Allied Bank could not
produce documents that would show
availment of the loan, nor could SGV
itemize the documents/vouchers that
would, indeed signify the grant and receipt
of the claimed retirement benefits, as well
as the BIR insofar as it pertains on
respondents filed income tax returns for
the years 1987, 1988, 1989, 1990 and
1991.

Such being the case, and in line with

respondents defense as claimed in his
counter-affidavit that all his acquisitions
were from legitimate and valid sources
based from his (respondents) salary and
other sources of income, and he being the
recipient thereof, copies of which he is
entitled as a matter of right and party
recipient on the claimed loan and
retirement benefits, respondent Jose U.
Ong, is hereby directed to submit in
writing within a period of fifteen (15) days
from receipt of this ORDER, the following,
namely:-a)
all documents in his possession
relevant to the approval by the Allied
Banking Corporation on the P6.5 million
term
loan
including
documents
in
availment of the loan such as the
execution of promissory note/s, execution
of real/chattel mortgage/s and the fact of
its registration with the Register of Deeds,

c)
All documents showing the money
market placements such as but not limited
to the (a) confirmation sale on the
placements and (b) confirmation of the
purchase on the placements;
d)
Income tax returns as filed in the
Bureau of Internal Revenue for the years,
1987, 1988, 1989, 1990 and 1991.
Failure of the respondent to comply with
this ORDER within the period hereinabove
prescribed shall be deemed a waiver on
his
part
to
submit
the
required
controverting evidence and that he has no
evidence on hand to show proof on the
existence of the claimed defenses as
above set forth and that this case shall be
considered for resolution without further
notice.[12]
Instead of complying with the Order, Ong
filed a Motion,[13] dated February 17, 1993
for its recall, the voluntary inhibition of the
handling investigators, and reassignment
of the case. Ong objected to the
proceedings taken thus far, claiming that
he was not notified of the subpoenas
issued to SGV and Allied Bank requiring
them to substantiate Ongs claims.
TheOrder allegedly violates his right to
due process and to be presumed innocent
because it requires him to produce
evidence to exculpate himself.
A Resolution[14] dated May 31, 1993 was
thereafter issued finding that Ong
miserably failed to substantiate his claim
that the sources of financing his said

acquisition came from his other lawful

income, taking into account his annual
salary of P200,000.00 more or less and his
cash standing at the time, even without
considering his normal expenses befitting
his
stature
and
position
in
the
Government, as well as his acquisition of
movable properties for the calendar
year[s]
1989
to
1991,
totaling P930,000.00, and concluding that
the properties acquired by him in a matter
of ELEVEN (11) MONTHS from October,
1990 to September, 1991, during his
incumbency as Commissioner of the
Bureau of Internal Revenue, are manifestly
and grossly disproportionate to his salary
as a public official and his other lawful
income.[15]
The Resolution directed the filing by the
Ombudsman, in collaboration with the
Office of the Solicitor General (OSG), of a
petition
for
recovery
of
illgotten/unexplained wealth under RA 1379,
in relation to RAs 3019 and 6770, against
Ong and all other persons concerned.
The Resolution was reviewed by the Office
of
the
Special
Prosecutor
(Special
Prosecutor) which concurred with the
findings and recommendation of the
Ombudsman.[16]
A Petition[17] dated November 15, 1993 for
forfeiture of unlawfully acquired property
was
accordingly
filed
before
the
Sandiganbayan by the Republic, through
the Special Prosecutor and the Deputy
Ombudsman for Luzon,[18] against Ong and
his wife, petitioner Nelly Ong, and
docketed as Civil Case No. 0160.
The Petition alleged that the total value of
the questioned assets is P21,474,585.00
which is grossly disproportionate to Ongs
lawful income from his public employment
and
other
sources
amounting
to P1,060,412.50, considering that Nelly
Ong has no visible means of income. This
circumstance allegedly gave rise to the
presumption under Sec. 2 of RA 1379 that
the questioned properties were unlawfully
acquired.
In its Order[19] dated November 17, 1993,
the Sandiganbayan directed the issuance

of a writ of preliminary attachment against

the properties of petitioners. The writ,
issued on November 18, 1993, was duly
served and implemented as shown in the
Sheriffs Return dated December 1, 1993.
[20]

Petitioners Jose and Nelly Ong filed

an Answer[21] dated January 27, 1994,
denying that their lawful income is grossly
disproportionate to the cost of the real
properties they acquired during the
incumbency of Ong as BIR Commissioner.
According to them, the Special Prosecutor
and the Ombudsman intentionally failed to
consider the retirement and separation
pay Ong received from SGV and other
lawful sources of funds used in the
acquisition of the questioned properties.
They
presented
several
affirmative
defenses, such as the alleged deprivation
of their right to due process considering
that no preliminary investigation was
conducted as regards Nelly Ong, and the
nullity of the proceedings before the
Ombudsman because the latter, who
acted both as investigator and adjudicator
in the determination of the existence of
probable cause for the filing of the case,
will also prosecute the same. Moreover,
the Petition also allegedly failed to state a
cause of action because RA 1379 is
unconstitutional as it is vague and does
not sufficiently define ill-gotten wealth and
how it can be determined in violation of
the non-delegation of legislative power
provision, and insofar as it disregards the
presumption of innocence by requiring
them to show cause why the properties in
question should not be declared property
of the state. They also objected to the fact
that
they
were
not
notified
of
theResolution directing the filing of the
case and were thereby prevented from
filing a motion for reconsideration.
A hearing of petitioners affirmative
defenses was conducted as in a motion to
dismiss, after which the Sandiganbayan
issued
the
assailed Resolution dated
August 18, 1994. The Sandiganbayan
ruled that a petition for forfeiture is an
action in rem, civil in character. As such,
the participation of Nelly Ong in the

inquiry
to
determine
whether
the
properties acquired by her husband are
manifestly disproportionate to his salary
and other lawful income is not a
mandatory requirement. Neither is the
conduct of a preliminary investigation as
regards Nelly Ong required. Further, Nelly
Ong was only impleaded in the petition as
a formal party.
The court held that the power of the
Ombudsman to investigate and prosecute
unexplained wealth cases is founded on
RAs
1379,
3019
and
6770.
The
Sandiganbayan, moreover, declared that
the Petition sufficiently states a cause of
action.
Petitioners
filed
a Motion
for
Reconsideration[22] dated September 11,
1994, averring that although a forfeiture
proceeding is technically a civil action, it is
in substance a criminal proceeding as
forfeiture is deemed a penalty for the
violation of RA 1379. Hence, Nelly Ong is
entitled to a preliminary investigation. To
proceed against her conjugal share of the
questioned assets without giving her the
opportunity to present her side in a
preliminary investigation violates her right
to due process.
Petitioners reiterated their argument that
they
were
not
notified
of
the Resolutiondirecting the filing of the
petition
for
forfeiture
and
were
consequently deprived of their right to file
a motion for reconsideration under RA
6770 and pertinent rules.
The Sandiganbayan issued the second
assailed Resolution dated
October
22,
1996, directing the Ombudsman to furnish
petitioners
with
a
copy
of
the Resolution to file the forfeiture case
and giving them a period of five (5) days
from receipt of the Resolution within which
to file a motion for reconsideration. The
Ombudsman was given a period of sixty
(60) days to resolve the motion for
reconsideration and to report to the court
the action it has taken thereon.

Instead of awaiting the Ombudsmans

compliance
with
the Resolution, petitioners
filed
the
instant Petition for Certiorari contending
that the Sandiganbayan gravely abused its
discretion in ruling that Nelly Ong is not
entitled to preliminary investigation;
failing to annul the proceedings taken
before the Ombudsman despite the
alleged bias and prejudice exhibited by
the latter and the disqualification of the
Ombudsman
from
acting
both
as
prosecutor and judge in the determination
of probable cause against petitioners; and
failing
to
declare
RA
1379
unconstitutional.
The
OSG
filed
a Comment[23] dated
December 10, 1997, averring that the
reason why Nelly Ong was not made a
party to the proceedings before the
Ombudsman is because her husband
never mentioned any specific property
acquired solely and exclusively by her.
What he stated was that all the
acquisitions were through his own efforts.
Hence, the Sandiganbayan correctly held
that Nelly Ong is a mere formal party.

Furthermore,
the
presumption
of
innocence clause of the Constitution refers
to criminal prosecutions and not to
forfeiture proceedings which are civil
actions in rem. The Constitution is likewise
not violated by RA 1379 because statutes
which declare that as a matter of law a
particular inference follows from the proof
of
a
particular
fact,
one
fact
becoming prima facieevidence of another,
are not necessarily invalid, the effect of
the presumption being merely to shift the
burden of proof upon the adverse party.
Neither is the constitutional authority of
the Supreme Court to promulgate rules
concerning
the
protection
and
enforcement of constitutional rights,
pleading, practice and procedure in all
courts violated by RA 1379 merely by
authorizing the OSG to grant immunity
from criminal prosecution to any person

who testifies to the unlawful manner in

which a respondent has acquired any
property. There is no showing that the OSG
or the Ombudsman is about to grant
immunity to anybody under RA 1379. At
any rate, the power to grant immunity in
exchange for testimony has allegedly
been upheld by the Court.
The OSG further argued that the
Ombudsman did not exhibit any bias and
partiality against Ong. It considered his
claim that he received retirement benefits
from SGV, obtained a loan from Allied
Bank, and had high yielding money market
placements, although it found that these
claims were unsubstantiated based on its
investigation. Moreover, the sending of
subpoenas to SGV and Allied Bank was in
accordance with the powers of the
Ombudsman under RA 6770.
The OSG likewise alleged that RA 1379 is
not vague as it defines legitimately
acquired property and specifies that the
acquisition of property out of proportion to
the legitimate income of a public officer is
proscribed.
Petitioners
filed
a Reply
Comment[24] dated
April
1,
reiterating their arguments.

to
1998,

In the Resolution[25] dated April 14, 1999,

the Court gave due course to the petition
and required the parties to submit their
respective
memoranda.
Accordingly,
petitioners
filed
theirMemorandum[26] dated June 29, 1999,
while
the
OSG
submitted
its Memorandum[27] dated September 27,
1999. The Special Prosecutor submitted its
own Memorandum[28] dated June 20, 1999.
We deny the petition.

Petitioners contend that Nelly Ong was

denied due process inasmuch as no
separate notices or subpoena were sent to
her during the preliminary investigation
conducted by the Ombudsman. They aver

that Nelly Ong is entitled to a preliminary

investigation
because
a
forfeiture
proceeding is criminal in nature.
On the other hand, the OSG and the
Ombudsman contend that Nelly Ong is not
entitled
to
preliminary
investigation, first, because
forfeiture
proceedings under RA 1379 are in the
nature
of
civil
actions in
rem and
preliminary
investigation
is
not
required; second, because even assuming
that the proceeding is penal in character,
the right to a preliminary investigation is a
mere statutory privilege which may be,
and was in this case, withheld by law;
and third,
because
a
preliminary
investigation would serve no useful
purpose considering that none of the
questioned assets are claimed to have
been acquired through Nelly Ongs funds.
In Republic v. Sandiganbayan,[29] we ruled
that forfeiture proceedings under RA 1379
are civil in nature and not penal or
criminal in character, as they do not
terminate in the imposition of a penalty
but merely in the forfeiture of the
properties illegally acquired in favor of the
State. Moreover, the procedure outlined in
the law is that provided for in a civil
action,viz:
Sec. 3. The petition.The petition
contain the following information:
(a) The name
respondent.

and

address

of

shall
the

(b) The public office or employment he

holds and such other public officer or
employment which he has previously held.
(c) The approximate amount of property
he has acquired during his incumbency in
his past and present offices and
employments.
(d) A description of said property, or such
thereof as has been identified by the
Solicitor General.
(e) The total amount of his government
salary and other proper earnings and

incomes
from
property, and

legitimately

acquired

(f)
Such other information as may
enable the court to determine whether or
not the respondent has unlawfully
acquired property during his incumbency.
Sec.
4. Period
for
the
answer.The
respondent shall have a period of fifteen
days within which to present his answer.
Sec. 5. Hearing.The court shall set a date
for a hearing which may be open to the
public, and during which the respondent
shall be given ample opportunity to
explain, to the satisfaction of the court,
how he has acquired the property in
question.
Sec. 6. Judgment.If the respondent is
unable to show to the satisfaction of the
court that he has lawfully acquired the
property in question, then the court shall
declare such property, forfeited in favor of
the State, and by virtue of such judgment
the property aforesaid shall become
property of the State: Provided, that no
judgment shall be rendered within six
months before any general election or
within three months before any special
election. The court may, in addition,
refer this case to the corresponding
Executive
Department
for
administrative or criminal action, or
both. [Emphasis supplied.]
Hence, unlike in a criminal proceeding,
there is to be no reading of the
information, arraignment, trial and reading
of the judgment in the presence of the
accused.[30]
In the earlier case of Cabal v. Kapunan,
[31]
however, we declared that forfeiture to
the State of property of a public official or
employee partakes of the nature of a
penalty and proceedings for forfeiture of
property, although technically civil in form,
are deemed criminal or penal. We clarified
therein that the doctrine laid down
in Almeda
v.
Perez[32] that
forfeiture
proceedings are civil in nature applies
purely to the procedural aspect of such
proceedings and has no bearing on the

substantial rights of the respondents

therein. This ruling was reiterated
in Katigbak v. Solicitor General,[33] where
we held that the forfeiture of property
provided for in RA 1379 is in the nature of
a penalty.
It is in recognition of the fact that
forfeiture partakes the nature of a penalty
that RA 1379 affords the respondent
therein
the
right
to
a
previous
inquiry similar to
a
preliminary
investigation in criminal cases.
Preliminary investigation is an inquiry or
proceeding to determine whether there is
sufficient ground to engender a wellfounded belief that a crime has been
committed and the respondent is probably
guilty thereof, and should be held for trial.
Although the right to a preliminary
investigation is not a fundamental right
guaranteed by the Constitution but a mere
statutory privilege, it is nonetheless
considered a component part of due
process in criminal justice.[34]
It is argued, however, that even if RA 1379
is considered a criminal proceeding, Nelly
Ong is still not entitled to a preliminary
investigation because the law itself
withholds such right from a respondent
who is not himself or herself a public
officer or employee, such as Nelly Ong.
RA 1379, entitled An Act Declaring
Forfeiture in Favor of the State of Any
Property Found to Have Been Unlawfully
Acquired by Any Public Officer or
Employee and Providing for the Procedure
Therefor, expressly affords a respondent
public officer or employee the right to a
previous inquiry similar to preliminary
investigation in criminal cases, but is
silent as to whether the same right is
enjoyed by a co-respondent who is not a
public officer or employee. Sec. 2 thereof
provides:
Sec.
2. Filing
of
petition.Whenever
any public officer or employee has
acquired during his incumbency an
amount of property which is manifestly
out of proportion to his salary as such
public officer or employee and to his other

lawful income and the income from

legitimately
acquired
property,
said
property shall be presumed prima facie to
have been unlawfully acquired. The
Solicitor General, upon complaint by any
taxpayer to the city or provincial fiscal
who shallconduct a previous inquiry
similar to preliminary investigations
in criminal cases and shall certify to the
Solicitor General that there is reasonable
ground to believe that there has been
committed a violation of this Act and
the respondent is
probably
guilty
thereof, shall file, in the name and on
behalf of the Republic of the Philippines, in
the Court of First Instance of the city or
province where said public officer or
employee resides or holds office, a
petition for a writ commanding said officer
or employee to show cause why the
property aforesaid, or any part thereof,
should not be declared property of the
State: Provided, That no such petition shall
be filed within one year before any
general election or within three months
before any special election.[Emphasis
supplied.]
Is this silence to be construed to mean
that
the
right
to
a
preliminary
investigation is withheld by RA 1379 from
a co-respondent, such as Nelly Ong, who is
not herself a public officer or employee?
The answer is no.
It is a significant fact in this case that the
questioned
assets
are
invariably
registered under the names of both Jose
and Nelly Ong owing to their conjugal
partnership. Thus, even as RA 1379
appears to be directed only against the
public officer or employee who has
acquired during his incumbency an
amount of property which is manifestly
out of proportion to his salary as such
public officer or employee and his other
lawful income and the income from
legitimately acquired property, the reality
that the application of the law is such that
the conjugal share of Nelly Ong stands to
be subjected to the penalty of forfeiture
grants her the right, in line with the due
process clause of the Constitution, to a
preliminary investigation.

There is in this case, however, another

legal complexion which we have to deal
with. As the OSG noted, there is nothing in
the affidavits and pleadings filed by
petitioners which attributes the acquisition
of any of the questioned assets to Nelly
Ong.
In his Counter-Affidavit, Ong explained
that
the
questioned
assets
were
purchased usinghis retirement benefits
from SGV amounting to P7.8 Million,
various money market placements, and
loan from Allied Bank in the amount
of P6.5 Million. He averred:
6.
To fully explain the valid and legal
acquisition of the foregoing listed property
pointing out the sources of funding,
circumstances and details of acquisition,
the following information is related:
A.
As to the acquisition of the lot
covered by TCT No. 172168, located at
Ayala Alabang, Muntinlupa, Metro Manila,
for P5,500,000.00 on October 9, 1990.
Respondents
sources
the P5,500,000.00 were:

for

a. Interest from his money market

placements up to September 30, 1990
--------------P2,404,643
b. Partial liquidation of money market
placements
-------------------------------------------------P3,095,
357
Total
-----------------------------------------P5,500,000

A brief historical narration of the money

placements made by Respondent is
included in the Report on the Statement of
Net Worth of Com. Jose U. Ong Calendar
Year 1989 to 1991, submitted by him to
the Office of the Ombudsman, on or about
March 24, 1992.

After the acquisition of the above

property, Respondents money market
placements were reduced to P4,365,834
(inclusive of interest which was not used
to finance the above acquisition, and
which remaining balance was rolled over
as part of the placements.
B. As to the acquisition of the lot
covered by TCT No. 173386, located at
Ayala Alabang, Muntinlupa, Metro Manila,
on December 3, 1990, for P5,055,000.00.
Respondent was offered this lot, and
finding the same to be a good investment,
he obtained a loan from the Allied Banking
Corporation for P6,500,000.00. P5,500,000
was used by him in the purchase of the
above
property.
Respondents
credit
worthiness is self evident from his
Statement of Assets and Liabilities as of
end of December, 1989 where his net
worth is duly reflected to beP10.9 Million.
Xerox copy of the Certification executed
by the Corporate Secretary of Allied
Banking Corporation attesting to the grant
of a five (5) year Term Loan of P6.5 Million
pesos to Respondent on October 24, 1990,
is attached and incorporated as Annex 3.
C. As to the acquisition of the lot
covered by TCT No. 173760, located at
Ayala Alabang, Muntinlupa, Metro Manila,
on January 16, 1991, for P4,675,000.00.
After the acquisition of the property
described in the next preceding subparagraph B, Respondent had available
investible
funds,
money
market
placements,
in
the
total
sum
ofP5,894,815.00, the details of which are
as follows:

Balance of Money Market placements after

acquisition of the property covered by TCT
No. 173386 ------------ 4,365,834.00
Interest earned in the above money
market placements up to December 31,
1990 ------------------------ 83,981.00

Unused portion of the loan of P6.5 Million

---- .P1,445,000.00
Total --------------------------- ..P5,894,815.00
From
the
foregoing
balance
of P5,894,815.00, came the P4,375,000.00
with which Respondent purchased the real
property covered by TCT No. 173760.
There
remained
a
balance
ofP1,219,815.00.
D. As to the acquisition in Respondents
name of the lot at Ayala Alabang,
Muntinlupa, Metro Manila, covered by TCT
No. 173901, on July 1, 1990.
This is an acquisition that had to be made
in Respondents name for the benefit of
Hamplish
D.
Mercado
(respondents
brother-in-law) and Florentina S. Mercado,
Filipino/Americans, both residents of
Persippany, New Jersey, U.S.A. The funding
of this purchase came from Hamplish D.
Mercado who previously left funds with
Respondent for the purpose of acquiring
suitable property where the Mercado
spouses could stay when they return to
the Philippines upon retirement. Due to
circumstances prevailing at the time when
the sale was executed, it was done in the
name of Respondent and his wife.
Respondent
immediately
thereafter
executed an Acknowledgment of Trust
stating the aforementioned fact, duly
notarized under date of 5 February 1991.
Respondent has likewise executed and
signed a Deed of Absolute Sale,
confirming the truth of all the foregoing.
Xerox copy of the said Acknowledgment of
Trust dated February 5, 1991, and the duly
signed Deed of Absolute Sale still undated,
are hereto attached as Annexes 4 and 4-A,
respectively.
E.
As to the alleged acquisition of the
lot at Makati, Metro Manila, covered by
TCT No. 171210 on July 1, 1990
for P832,000.00.

Regarding the aforementioned alleged

acquisition,
there
was
even
an
acknowledgment of error in the very
making of the charge. Suffice it just to say
that the Fact-Finding Report itself stated,
Hence, the accusation that it was Com.
Ong who provided funds for such
acquisition is DEVOID of merit.

which Nelly Ong could have raised relative

to the sources of funds used in the
purchase of the questioned assets are
deemed waived owing to the fact that
they are subsumed in the submissions of
her husband. Hence, even if she is entitled
to a preliminary investigation, such an
inquiry would be an empty ceremony.

F.
As to the acquisition of Condominium
Unit covered by CCT No. 20785.

We now consider Ongs allegations of bias

and
prejudice
exhibited
by
the
Ombudsman
during
the
preliminary
investigation.

Though not included in the ComplaintAffidavit, this was added by Investigator

Soguilon, and who unilaterally and
arbitrarily declared its acquisition by
Respondent as coming from illegal means
without
affording
Respondent
his
constitutional right to due process. Had
respondent been afforded the opportunity
to comment on the acquisition of subject
Condominium Unit, he could have readily
explained
the
purchase
price
of P744,585.00. Under No. 6-C of this
statement, it appears that there still
remained
an
unused
balance
of P1,219,815.60. Thus, even Respondents
remaining investible funds easily covered
the purchase price.
He
acknowledges
the
unintentional
omission of the Condominium Unit in the
listing of the same in his Statements of
Assets and Liabilities. However, as
explained in the preceding paragraph the
acquisition cost of P744,585.00 is well
within his readily available balance for
investment after the acquisition of the
property covered by TCT No. 173760,
which isP1,219,815.60.[35]

Even as petitioners denied the allegation

in the petition for forfeiture that Nelly Ong
has no visible means of income with which
she could have purchased the questioned
assets, there is neither indication nor
pretense that Nelly Ong had a hand in the
acquisition of the properties. Jose Ong
clearly declared that he purchased the
properties
with his retirement
funds,
money market placements, and proceeds
from a bank loan. Whatever defenses

A perusal of the records reveals that the

Graft Investigation Officer duly considered
Ongs explanation as to the sources of
funds with which he acquired the
questioned assets. His averment that he
received retirement benefits from the SGV
was understandably disregarded because
the
only
supporting
document
he
presented then was the certification of the
controller of SGV to the effect that he
received such benefits. Ong was likewise
unable to substantiate his claim that he
had money market placements as he did
not present any document evidencing
such placements. Further, apart from a
certification from the corporate secretary
of Allied Bank to the effect that he
obtained a loan from the said bank, no
other
document, e.g.,loan
application,
credit investigation report, loan approval,
schedule of loan releases, real estate
mortgage document, promissory notes,
cancelled checks, receipts for amortization
payments, and statement of account, was
presented to support the claim.
Ong was even given the opportunity to
present the documents in his possession
relevant to the approval of the Allied Bank
loan, his receipt of retirement benefits
from SGV, and money market placements
which would have validated his assertion
that all the questioned acquisitions were
from legitimate sources.[36] Up to this
point, therefore, we find that the
Ombudsman
did
not
make
any
unwarranted conclusions or proceed with
arbitrariness in the conduct of the
preliminary inquiry.

However, Ong calls the Courts attention to

the fact that he was not notified of
thesubpoenas
duces
tecum
ad
testificandum apparently issued to SGV,
Allied Bank and the BIR and the
proceedings taken thereon. This objection
was raised in his Motion[37] dated February
17, 1993, which was, unfortunately,
perfunctorily denied.
The Rules of Procedure of the Office of the
Ombudsman[38] provides
that
the
preliminary investigation of cases falling
under
the
jurisdiction
of
the
Sandiganbayan and Regional Trial Court
shall be conducted in the manner
prescribed in Section 3, Rule 112 of the
Rules of Court, subject to the following
provisions:

the filing of a petition for forfeiture deprive

him of his statutory right to be furnished
with a copy of theResolution to file a
petition for forfeiture and to file a motion
for reconsideration therefrom with the
Ombudsman within five (5) days from
receipt of such Resolution pursuant to Sec.
27 of RA 6770. The law provides:

Sec. 27. Effectivity and Finality of

Decisions.(1) All provisionary orders of the
Office of the Ombudsman are immediately
effective and executory.
A motion for reconsideration of any order,
directive or decision of the Office of the
Ombudsman must be filed within five (5)
days after receipt of written notice . . . .

(f) If, after the filing of the requisite

affidavits and their supporting evidences,
there are facts material to the case which
the investigating officer may need to be
clarified on, he may conduct a clarificatory
hearing during which the parties shall be
afforded the opportunity to be present but
without the right to examine or crossexamine the witness being questioned.
Where the appearance of the parties or
witness is impracticable, the clarificatory
questioning may be conducted in writing,
whereby the questions desired to be asked
by the investigating officer or a party shall
be reduced into writing and served on the
witness concerned who shall be required
to answer the same in writing and under
oath.

For these reasons, we find that the

Sandiganbayan,
in
its
second
assailed Resolution,correctly ordered the
Ombudsman to
immediately furnish
petitioners a copy of the Resolutionto file
the petition for forfeiture, and gave
petitioners a period of five (5) days from
receipt of such Resolution within which to
file a motion for reconsideration. Although
the second Sandiganbayan Resolution was
only intended to remedy the Ombudsmans
failure to give petitioners a copy of
the Resolution to file the petition for
forfeiture, it would also have served to
cure the Ombudsmans failure to notify
petitioners of the issuance of subpoenas
duces tecum ad testificandum to SGV,
Allied Bank and the BIR.

Ong, therefore, should have been notified

of the subpoenas duces tecum ad
testificandumissued to SGV, Allied Bank
and the BIR. Although there is no
indication on record that clarificatory
hearings were conducted pursuant to the
subpoenas, Ong is entitled to be notified
of the proceedings and to be present
thereat. The fact that he was not so
notified is a denial of fundamental fairness
which taints the preliminary investigation.

Instead of awaiting the Ombudsmans

compliance with the Resolution and filing
their
motion
for
reconsideration
therefrom, however, petitioners opted to
go directly to this Court. With this
maneuver, petitioners effectively deprived
themselves of an avenue of redress with
the Sandiganbayan. They are deemed to
have waived their right to avail of the
remedy
afforded
by
the
second Resolution.

So, too, did the fact that Ong was not

served a copy of the Resolution directing

The next question is whether we should

direct the Ombudsman to rectify the errors

committed
during
the
preliminary
investigation, i.e., the failure to give Ong
notice of the subpoenas issued to SGV,
Allied Bank and the BIR and notice of
the Resolution directing the filing of the
petition for forfeiture.
To so order the Ombudsman at this point
would no longer serve any useful purpose
and would only further delay the
proceedings in this case. Verily, petitioners
have been allowed to fully plead their
arguments before this Court. After all has
been said, this case should now be
allowed to proceed in its course.
Nonetheless, we find this an opportune
time to admonish the Ombudsman to be
more circumspect in its conduct of
preliminary investigation to the end that
participants therein are accorded the full
measure of their rights under the
Constitution and our laws.
The other issues raised by petitioners
concern the alleged disqualification of the
Ombudsman to file a petition for forfeiture
considering that it also conducted the
preliminary investigation to determine
probable cause. According to petitioners,
the duality of the functions of the
Ombudsman,
as
investigator
and
prosecutor, impairs its ability to act as a
fair and impartial magistrate in the
determination of probable cause.
Petitioners are the first to agree that the
Ombudsman is vested with jurisdiction to
investigate and prosecute any act or
omission of a public officer or employee
when such act or omission appears to be
illegal, unjust, improper or inefficient. They
recognize that the Ombudsman has
primary jurisdiction over cases, such as
the present one, cognizable by the
Sandiganbayan.
The problem with petitioners contention is
their assumption that the Ombudsman, a
constitutionally-created body, will not
perform its functions faithfully. The duality
of roles which the Ombudsman exercises
does not necessarily warrant a conclusion
that it will be given to making a finding of
probable cause in every case.

At any rate, [I]n the debates on this

matter in the Constitutional Commission, it
was stressed by the sponsors of the Office
of the Ombudsman that, whereas the
original Tanodbayan was supposed to be
limited to the function of prosecution of
cases
against
public
functionaries,
generally for graft and corruption, the
former would be considered the champion
of the citizen, to entertain complaints
addressed to him and to take all
necessary action thereon.[39] This should
leave
no
doubt
as
regards
the
constitutionality and propriety of the
functions exercised by the Ombudsman in
this case.
Verily,
the
Court
in Republic
v.
Sandiganbayan,[40] reviewed the powers of
the Ombudsman and held:
At
present,
the
powers
of
the
Ombudsman, as defined by Republic Act
No. 6770 corollary to Section 13, Article XI
of the 1987 Constitution, include, inter
alia, the authority to: (1) investigate and
prosecute on its own or on complaint by
any person, any act or omission of any
public officer or employee, office or
agency, when such act or omission
appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan
and, in the exercise of this primary
jurisdiction, it may take over, at any stage,
from
any
investigatory
agency
of
Government, the investigation of such
cases; and (2) investigate and intiate the
proper action for the recovery of ill-gotten
wealth
and/or
unexplained
wealth
amassed after February 25, 1986 and the
prosecution of the parties involved there.
[41]

In the same case, we declared that the

Ombudsman has the correlative powers to
investigate and initiate the proper action
for the recovery of ill-gotten and/or
unexplained wealth which were amassed
after February 25, 1986. There is therefore
no merit in petitioners contention that the
absence of participation of the OSG taints
the petition for forfeiture with nullity.

Finally,
the
attacks
against
the
constitutionality of RA 1379 because it is
vague, violates the presumption of
innocence and the right against self
incrimination, and breaches the authority
and prerogative of the Supreme Court to
promulgate
rules
concerning
the
protection
and
enforcement
of
constitutional rights, are unmeritorious.
The law is not vague as it defines with
sufficient particularity unlawfully acquired
property of a public officer or employee as
that which is manifestly out of proportion
to his salary as such public officer or
employee and to his other lawful income
and the income from legitimately acquired
property. It also provides a definition of
what is legitimately acquired property.
Based on these parameters, the public is
given fair notice of what acts are
proscribed. The law, therefore, does not
offend the basic concept of fairness and
the due process clause of the Constitution.
Neither is the presumption of innocence
clause violated by Sec. 2 of RA 1379 which
states that property acquired by a public
officer or employee during his incumbency
in an amount which is manifestly out of
proportion to his salary as such public
officer or employee and to his other lawful
income and the income from legitimately
acquired
property
shall
be
presumed prima
facie to
have
been
unlawfully acquired. As elaborated by Fr.
Joaquin Bernas, under the principle of
presumption of innocence, it is merely
required of the State to establish a prima
facie case, after which the burden of proof
shifts to the accused.[42] In People v.
Alicante,[43] the Court held:
No rule has been better established in
criminal law than that every man is
presumed to be innocent until his guilt is
proved beyond a reasonable doubt. In a
criminal prosecution, therefore, the burden
is upon the State to prove every fact and
circumstance constituting the crime
charged, for the purpose of showing the
guilt of the accused.

While that is the rule, many of the States

have established a different rule and have
provided that certain facts only shall
constitute prima facie evidence, and that
then the burden is put upon the defendant
to show or to explain that such facts or
acts are not criminal.
It has been frequently decided, in case of
statutory
crimes,
that
no
constitutional provision is violated by a
statute providing that proof by the State
of some material fact or facts shall
constitute prima facie evidence of guilt,
and that then the burden is shifted to the
defendant for the purpose of showing that
such act or acts are innocent and are
committed without unlawful intention.
. . . The State having the right to declare
what acts are criminal, within certain well
defined limitations, has a right to specify
what act or acts shall constitute a crime,
as
well
as
what
proof
shall
constitute prima facie evidence of guilt,
and then to put upon the defendant the
burden of showing that such act or acts
are innocent and are not committed with
any criminal intent or intention.[44]
The constitutional assurance of the right
against self incrimination likewise cannot
be invoked by petitioners. The right is a
prohibition against the use of physical or
moral
compulsion
to
extort
communications from the accused. It is
simply a prohibition against legal process
to extract from the accuseds own lips,
against his will, admission of his guilt.[45] In
this case, petitioners are not compelled to
present themselves as witnesses in
rebutting the presumption established by
law. They may present documents
evidencing the purported bank loans,
money market placements and other fund
sources in their defense.
As regards the alleged infringement of the
Courts authority to promulgate rules
concerning
the
protection
and
enforcement of constitutional rights,
suffice it to state that there is no showing
that the Ombudsman or the OSG is about
to grant immunity to anyone under RA

1379. The question, therefore, is not ripe

for adjudication.
WHEREFORE, the petition is hereby
DISMISSED. Costs against petitioners.
SO ORDERED.
G.R. No. 134744
January 16, 2001
GIAN PAULO VILLAFLOR, petitioner,
vs.
DINDO VIVAR y GOZON, respondent.
PANGANIBAN, J.:
The absence of a preliminary investigation
does not impair the validity of an
information or render it defective. Neither
does it affect the jurisdiction of the court
or constitute a ground for quashing the
information. Instead of dismissing the
information, the court should hold the
proceeding in abeyance and order the
public prosecutor to conduct a preliminary
investigation.1wphi1.nt
The Case
Before us is a Petition for Review under
Rule 45 of the Rules of Court, seeking to
set aside the Orders issued by the
Regional Trial Court (RTC) of Muntinlupa
City (Branch 276) in Civil Case No. 97134.1 Dated January 20, 1998,2 the first
Order granted the Motion to Quash the
Informations and ordered the Dismissal of
the two criminal cases. The second Order
dated July 6, 1998, denied the Motion for
Reconsideration.
The Facts
Culled from the records and the pleadings
of the parties are the following undisputed
facts.
An Information3 for slight physical injuries,
docketed as Criminal Case No. 23365, was
filed against Respondent Dindo Vivar on
February 7, 1997. The case from the
alleged mauling of Petitioner Gian Paulo
Villaflor by respondent around 1:00 a.m.
on January 27, 1997 outside the Fat
Tuesday Bar at the Ayala Alabang Town
Center, Muntinlupa City. After the severe
beating he took from respondent, petition
again met respondent who told him, "Sa
susunod gagamitin ko na itong baril
ko"4 ("Next time, I will use my gun on
you").
When the injuries sustained by petitioner
turned out to be more serious than they

had appeared at first, an Information5 for

more serious physical injuries, docketed as
Criminal Case No. 23787, was filed against
respondent.6 The earlier charge of slight
physical injuries was withdrawn.
At the same time, another Information7 for
grave threats, docketed as Criminal Case
No. 237288, was filed against respondent
on March 17, 1997.
On April 14, 1997, respondent posted a
cash bond of P6,000 in Criminal Case No.
23787 (for serious physical injuries) 9.
Instead of filing a counter-affidavit as
required by the trial court, he filed on April
21, 1997, a Motion to Quash the
Information in Criminal Case No. 23787
(for grave threats). He contended that the
latter should have absorbed the threat,
having been made in connection with the
charge of serious physical injuries. Thus,
he concluded, Criminal Case No. 23728
should be dismissed, as the trial court did
not acquire jurisdiction over it.10
In an Order dated April 28, 1997 in
Criminal Case No. 23728, the Metropolitan
Trial Court (MTC) denied the Motion to
Quash, as follows:
"For consideration is a motion to quash
filed by accused counsel. Considering that
jurisdiction is conferred by law and the
case filed is grave threats which is within
the jurisdiction of this Court and
considering further that a motion to quash
is a prohibited [pleading] under the rule on
summary procedure, the motion to quash
filed by the accused counsel is DENIED.
WHEREFORE, the motion to quash filed by
accused counsel is hereby DENIED and let
the arraignment of the accused be set on
June 25, 1997 at 2:00 0'clock in the
afternoon."11
The Motion for Reconsideration filed by
Respondent was denied by the MTC on
June 17, 1997.12 Thus, he was duly
arraigned in Criminal Case No. 23728 (for
grave threats), and he pleaded not guilty.
On July 18, 1997, respondent filed a
Petition for Certiorari with the RTC of
Muntinlupa City. This was docketed as Civil
Case No. 97-134. On July 20, 1998, after
the parties submitted their respective
Memoranda, the RTC issued the assailed
Order, which reads as follows:
"The Judicial Officer appears to have acted
with grave abuse of discretion amounting

to lack of jurisdiction in declaring and

denying the MOTION TO QUASH as a
prohibitive motion. The same should have
been treated and [should have] proceeded
under the regular rules of procedure. The
MOTION TO QUASH THE INFORMATION
filed without preliminary investigation is
therefore granted and these cases should
have been dismissed.
Let this Petition be turned to the
Metropolitan Trial Court, Branch 80Muntinlupa City for appropriate action."13
The RTC, in an Order dated July 6, 1998,
denied
the
unopposed
Motion
for
Reconsideration, as follows:
"Submitted for resolution is the unopposed
Motion for Reconsideration filed by Private
Respondent.
The Court agrees with the contention of
private respondent that the Motion quash
filed by petitioner in the interior court is a
prohibited pleading under Rules on
Summary Procedure so that its denial is
tenable. However, it would appear that the
criminal charges were filed without the
preliminary investigation having been
conducted by the Prosecutor's Office.
Although preliminary investigation in
cases triable by interior courts is not a
matter of right, the provision of Sec. 51
par 3(a) of Republic Act 7926 entitled "An
Act Converting the Municipality of
Muntinlupa Into Highly Urbanized City To
Be Known as the City of Muntinlupa"
provides that the city prosecutor shall
conduct preliminary investigations of ALL
crimes, even violations of city ordinances.
This Act amended the Rules on Criminal
Procedure. Since this procedure was not
taken against accused, the Order dated
January 20, 1998 stands.
The
Motion
for
Reconsideration
is
therefore denied."14
Hence, this Petitioner.15
The Issues
Petitioner submitted the following issues
for our consideration:16
"I
Can the court motu propio order the
dismissal of two (2) criminal cases for
serious physical injuries and grave threats
on the ground that the public prosecutor
failed
to
conduct
a
preliminary
investigation?
"II

Should the failure of the public prosecutor

to conduct a preliminary investigation be
considered a ground to quash the criminal
Informations for serious physical injuries
and grave threats filed against the
accused-respondent?
"III
Should respondent's entry of plea in the
[grave] threats case and posting of cash
bond waiver of this right, if any, to
preliminary investigation?"
The Court Ruling
The Petitioner is meritorious.
First Issue:
Lack of Preliminary Investigation
Preliminary investigation is "an inquiry or
proceeding
to
determine
whether
sufficient ground to engender a wellfounded belief that a crime has been
committed and the respondent is probably
guilty thereof, and should be held for
trial."17 A component part of due process
in
criminal
justice,
preliminary
investigation
is
a
statutory
and
substantive right accorded to the accused
before trial. To deny their claim to a
preliminary investigation would be to
deprive them of the full measure of their
right to due process.18
However, the absence of a preliminary
investigation does not impair the validity
of the information or otherwise render it
defective.19 Neither does it affect the
jurisdiction of the court or constitute a
ground for quashing the information.20 The
trial court, instead of dismissing the
information, should hold in abeyance the
proceedings
and
order
the
public
prosecutor to conduct a preliminary
investigation.
Hence, the RTC in this case erred when it
dismissed the two criminal cases for
serious physical injuries (Criminal case No.
23787) and grave threats (Criminal Case
No. 23728) on the ground that the public
prosecutor had failed to conduct a
preliminary investigation.
Furthermore, we do not agree that a
preliminary
investigation
was
not
conducted. In fact, the assistant city
prosecutor of Muntinlupa City made a
preliminary
investigation
for
slight
physical injuries. The said Information
was, however, amended when petitioner's
injuries turned out to be more serious and

did not heal within the period specified in

the Revised Penal Code.21
We believe that a new preliminary
investigation cannot be demanded by
respondent. This is because the charge
made by the public prosecutor was only a
formal amendment.22
The filing of the Amended Information,
without a new preliminary investigation,
did not violate the right of respondent to
be protected from a hasty, malicious and
oppressive prosecution; an open and
public accusation of a crime; or from the
trouble, the expenses and the anxiety of a
public trial. The Amended Information
could not have come as a surprise to him
for the simple and obvious reason that it
charged essentially the same offense as
that under the original Information.
Moreover, if the original charge was
related to the amended one, such that an
inquiry would elicit substantially the same
facts, then a new preliminary investigation
was not necessary.23
Second Issue:
Motion to Quash
As previously stated, the absence of a
preliminary investigation does not impair
the validity of the information or otherwise
render it defective. Neither does it affect
the jurisdiction of the court over the case
or constitute a ground for quashing
the information.24
Section 3, Rule 117 of the Revised Rules of
Criminal Procedure provides the grounds
on which an accused can move to quash
the complaint or information. These are:
(a) the facts charged do not constitute an
offense; (b) the court trying the case has
no jurisdiction over the offense charged
(c) the court trying the case has no
jurisdiction over the person of the
accused; (d) the officer who filed the
information had no authority to do so; (e)
the
information
does
not
conform
substantially to the prescribed form; (f)
more than one offense is charged, except
in those cases in which existing laws
prescribe a single punishment for various
offense; (g) the criminal action or liability
has been extinguished; (h) information
contains averments which, if true, would
constitute a legal excuse or justification;
and (I) the accused has been previously
convicted or is in jeopardy of being

convicted or acquitted of the offense

charged.25
Nowhere in the above-mentioned section
is there any mention of a lack of a
preliminary investigation as a ground for a
motion to quash. Moreover, such motion is
a prohibited pleading under Section 19 of
the Revised Rules on Summary Procedure.
In the present case, the RTC therefore
erred in granting herein respondent's
Motion to Quash.
Furthermore, we stress that the failure of
the accused to assert any ground for a
motion to quash before arraignment,
either because he had not filed the motion
or had failed to allege the grounds
therefor, shall be deemed a waiver of such
grounds.26 In this case, he waived his right
to file such motion when he pleaded not
guilty
to
the
charge
of
grave
threats.1wphi1.nt
In view of the foregoing, we find no more
need to resolve the other points raised by
petitioner.
WHEREFORE,
the
petition
is GRANTED, and the assailed Orders of
the Regional Trial Court of Muntinlupa City
are REVERSED. No costs.
SO ORDERED.
G.R. No. L-37949 September 30, 1974
JUAN
ALONZO, petitioner,
vs.
COURT OF FIRST INSTANCE OF
CAGAYAN,
BRANCH
IV,
and
BIENVENIDO
QUIROLGICO, respondents.
Raymundo R. Armovit for petitioner.
Faustino F. Tugade for private respondent.
ANTONIO, J.:p
In
this
special
civil
action
for certiorari and mandamus with
preliminary
mandatory
injunction,
petitioner Juan Alonzo seeks to nullify the
order of respondent judge in Election Case
No. 336-S of the Court of First instance of
Cagayan, Sanchez Mira, Branch IV, dated
October 20, 1973, dismissing his election
protest mainly on the ground that section
9 of Article XVII of the new Constitution in
relation to General Orders Nos. 1 and 3 of
the President of the Philippines, had
rendered the election protest moot. This
ground is untenable. We have already
ruled in previous cases that section 9,

Article XVII of the Transitory Provisions of

the new Constitution, had not rendered
moot election protest for provincial, city or
municipal officials pending at the time of
the effectivity of the new fundamental
charter. The aforesaid constitutional
provision refers only to those provincial,
city and municipal officials who had been
duly elected, and who could, therefore,
continue in office until otherwise provided
by law or decreed by the incumbent
President. 1 The right of herein petitioner
Juan Alonzo to challenge the right of
private respondent Bienvenido Quirolgico
to continue holding the office of Municipal
Mayor of Ballesteros, Cagayan, is,
therefore, maintained, because if private
respondent was not duly elected as
Municipal Mayor, he should not be allowed
to enjoy the indefinite term of office
accorded to him by section 9, Article XVII,
of the Constitution. Private respondent,
however, claims that the order of
dismissal was also justified by the
previous failure of petitioner to appear at
the hearings of the election protest. This
was not, however, the reason of
respondent Judge in his order of October
20, 1973, It is that for the repeated failure
of petitioner to appear at the hearings of
the electoral protest, the case was
dismissed on June 11, 1973, but the order
of dismissal was reconsidered by said
Judge on August 25, 1973 when he
modified his order of June 11, 1973 by
allowing petitioner a period of 30 days to
file his memorandum. Considering that the
revision of the ballots had been
completed, and documentary and other
evidence submitted by the parties, the
least that the respondent Judge could
have done, upon the failure of petitioner
to appear on October 4, 1973, the date set
for the hearing of petitioner's motion for
leave to submit additional documentary
evidence to support his counter-protest in
Precinct No. 25-A, was to deny the motion
and decide the case on the basis of the
evidence in the case. An election protest
involves public interest, its purpose being
to enable the court to ascertain the
candidate lawfully elected into office. In
the circumstances of the case it became
the imperative duty of respondent Court to

ascertain the lawful choice of the

electorate.
We have deemed it proper to consider the
case submitted for decision immediately
after the hearing held in this Court on
September 30, 1974, considering that an
election contest should be concluded as
speedily as possible to the end that any
doubt as to, the true expression of the will
of the electorate may be dissipated
without delay and that the public faith,
confidence and cooperation, so essential
to the processes of government, may not
be undermined. 2
WHEREFORE, the petition is hereby
granted and the questioned order of
dismissal dated October 20, 1973 is
declared null and void. Accordingly, the
respondent Court of First Instance is
ordered to continue the proceeding in its
Electoral Case No. 336-S, pursuant to this
opinion and in accordance with law.
Fernando,
Barredo,
Fernandez
and
Aquino, JJ., concur.

ESMAEL ORQUINAZA, G.R. No. 165596

Petitioner,
Present:
- versus - Puno, J.,
Chairman,
Austria-Martinez,
Callejo, Sr.,
PEOPLE OF THE PHILIPPINES, Tinga,
and
RTC JUDGE OF BRANCH 35, *ChicoNazario, JJ.
CALAMBA CITY, MTC
JUDGE
OF
CALAMBA
CITY
Promulgated:
and EDELYN ARIDA,
Respondents. November 17, 2005
x- - - - - - - - - - - - - - - - - - - - - - - - - - ------------------------x
DECISION
Puno, J.:
Petitioner Esmael Orquinaza filed the
instant petition for review assailing the

Decision dated July 21, 2004 of the

Regional Trial Court (RTC) of Calamba,
Laguna, Branch 35 in Civil Case No. 34852003-C and its Order dated October 4,
2004.
The facts are as follows:
On February 5, 2003, respondent Edelyn
Arida, together with her witness, Julio
Espinili, executed a sworn statement
before the Calamba City Police Station
regarding the alleged act of petitioner of
kissing her and touching her breasts while
she was taking a nap inside the
Development Room of the Calamba Model
Makers factory. [1] Arida was an employee
of Calamba Model Makers while petitioner
was its General Manager. In a letter dated
February 5, 2003, SPO4 Filipina Manaig
referred the case of sexual harassment to
the City Prosecutor of Calamba for
evaluation and proper disposition. [2]
On February 13, 2003, Assistant City
Prosecutor Rodel Paderayon issued a
subpoena ordering respondent Arida and
petitioner to appear at the Office of the
Provincial/City Prosecutor for preliminary
investigation. [3]
Petitioner filed a motion to dismiss before
the Office of the City Prosecutor, arguing
that the affidavits of Arida and Espinili do
not contain allegations to constitute the
crime of sexual harassment. [4]
On March 25, 2003, Assistant City
Prosecutor Paderayon issued a resolution
finding that there was no transgression of
the anti-sexual harassment law, but
petitioner's act of grabbing complainant's
breasts and kissing her is punishable
under
another
law
for
acts
of
lasciviousness. [5] Thus, he filed with the
Municipal Trial Court in Cities (MTCC) an
information charging petitioner with acts
of lasciviousness. The information states:
That on or about 12:45 oclock [sic] in the
afternoon of January 16, 2003 in Brgy.
Halang, City of Calamba and within the
jurisdiction of this Honorable Court, the
above-named accused, with lewd design,
did then and there, wil[l]fully, unlawfully
and feloniously grab the breasts and kiss
EDELYN ARIDA y PONCE, while the latter
was asleep inside the development room
of Calamba Model Makers, Inc., without
her consent, to her damage and prejudice.

CONTRARY TO LAW. [6]

The case was docketed as Crim. Case No.
40217-03.
On April 10, 2003, Judge Wilhelmina B.
Jorge-Wagan issued a warrant of arrest
against petitioner.[7]
Petitioner filed with the court an omnibus
motion praying that (1) the warrant of
arrest be recalled, (2) the information be
quashed,
(3)
the
arraignment
be
invalidated and set aside, and (4) the case
be dismissed. He argued primarily that the
information for acts of lasciviousness was
void as the preliminary investigation
conducted by the prosecutor was for
sexual harassment and not for acts of
lasciviousness. He claimed to have been
deprived of his right to due process. [8]
The motion was denied in an order dated
June 4, 2003. [9] The court held that the
authority to ascertain what charge or
offense should be filed based on the
evidence belongs to the public prosecutors
and not to the courts. The court said:
It need not be overemphasized that public
prosecutors have the option to ascertain
which prosecutions should be initiated on
the basis of the evidence at hand. That a
criminal act may have elements common
to more than one offense does not rob the
prosecutor of that option (or discretion)
and mandatorily require him to charge the
lesser offense although the evidence
before him may warrant prosecution of the
more serious one. Conversely, this holds
true if the prosecutor found, after
conducting the preliminary investigation,
that a lesser offense should be filed
instead. As to limit this authority would
eventually undermine the authority of the
prosecutor and impose an intolerable
burden on the trial court. x x x [10]
Petitioner
filed
a
motion
for
reconsideration [11] which was likewise
denied, [12] prompting him to file a
petition for certiorari with the RTC of
Calamba City. Petitioner invoked the same
arguments raised before the MTCC. [13]
The RTC, in its Decision dated July 21,
2004 [14] and its Order dated October 4,
2004, [15]affirmed the order of the MTCC.
Hence, this petition where petitioner cites
the following assignment of errors:

1. The court a quo erred in not finding that

information for 'acts of lasciviousness' is
null and void for lack of preliminary
investigation on the offense charged in the
information.
2. The court a quo erred in finding that the
Omnibus Motion to Recall Warrant of
Arrest, Motion to Quash Information, and
to Dismiss the case was not timely
interposed. [16]
The petition is unmeritorious.
The
Court's
ruling
in People
v.
Casiano [17] applies to the case at bar.
In that case, a preliminary investigation
was conducted for the charge of estafa
against the accused. However, upon
conclusion
of
the
preliminary
investigation, the provincial fiscal filed an
information for illegal possession and use
of a false treasury or bank notes against
her. Counsel for the accused filed a motion
to dismiss on the ground that there had
been no preliminary investigation of the
charge of illegal possession and use of a
false bank notes, and that absence of such
preliminary investigation affected the
jurisdiction of the court. The trial court
granted said motion. This Court, reversing
the decision of the trial court, held:
x x x The issue before us is whether
defendant is entitled to a preliminary
investigation of the crime of illegal
possession and use of a false bank note as
charged in the information herein. The
answer to this question depends
upon whether or not such crime was
included actually in the allegations of
the amended complaint filed with the
justice of the peace court, regardless
of the term used in said pleading
to designate the
offense
charged
therein.
In this connection, the offended party,
Ricardo Macapagal, averred in the
amended complaint that the '
accused under false manifestation and
fraudulent representations which she
made to Ricardo Macapagal, that a check
on its face valued at $300.00 and
numbered 728681, was good and genuine
as it was drawn by the American Bankers

Association against the Guaranty Trust

Company of New York in favor of Domingo
Flores as Payee, sold to Ricardo Macapagal
said
check
for P580.00
Philippine
Currency,
which
manifestations
and
representations the accused well knew
were false and fraudulent and were only
made to induce the aforementioned
Ricardo Macapagal to buy said check as
he in fact bought said check, paying to
mentioned accused the stated amount
of P580.00, which amount the accused
converted unlawfully to her own use and
benefit to the damage and prejudice of
Ricardo Macapagal in said sum for the
reason that the check upon presentation
for collection was dishonored on the
ground that it was fraudulent.
Thus,
complainant
alleged
in
said
amended complaint ' as he did in the
original complaint ' that defendant
appellee had knowingly had in her
possession, with intent to use, and
actually used, a false or falsified bank note
or other obligation payable to bearer,
which is the crime defined and punished in
Article 168, in relation to Article 166, of
the Revised Penal Code, and the
substance of the charge contained in the
information above quoted.
In other words, regardless of whether or
not the crime of 'estafa includes or is
included in that of illegal possession or
use of a false bank note or other
obligation payable to bearer, the Court of
First Instance of Pangasinan erred in
holding that the allegations of the
information filed in this case were not
included in those of the aforementioned
amended complaint and that defendantappellee
was
entitled
to
another
preliminary investigation of the charge
contained in the information. It erred, also,
in dismissing the case for, even if
defendant had a right to such other
preliminary investigation, the same was
deemed waived upon her failure to invoke
it prior to or, at least, at the time of the
entry of her plea in the court of first
instance. Independently
of
the
foregoing, the
absence
of
such
investigation did not impair the
validity
of
the
information
or

otherwise render it defective. Much

less did it affect the jurisdiction of
the court of first instance over the
present case. Hence, had defendantappellee been entitled to another
preliminary investigation, and had his
plea of not guilty upon arraignment
not implied a waiver of said right, the
court of first instance should have,
either conducted such preliminary
investigation,
or
ordered
the
Provincial Fiscal to make it, in
pursuance of section 1687 of the
Revised Administrative Code (as
amended by Republic Act No. 732), or
remanded
the
record
for
said
investigation to the justice of the
peace court, instead of dismissing
the case, as it did in the order
appealed
from. [18] (citations
omitted,emphases supplied)
In the case at bar, the complainant gave
the following statement before the
Calamba City Police Station:
T: Bakit ka naririto sa himpilan ng pulisya
ng Calamba?
S: Para po ireklamo itong si ESMAEL
ORQUINAZA sa ginawang panghahalik at
panghihipo sa aking suso.
xxx
T: Isalaysay mo nga kung paano ito
naganap?
S: Nasa trabaho ko po noon ako sa
pabrika at kasalukuyang namamahinga
ako at naidlip na nakasubsob sa lamesa sa
loob ng DEVELOPMENT ROOM namin ng
bigla na lang ako magulat dahil bigla na
lang akong dinakot sa aking magkabilang
suso mula sa likod nitong si ESMAEL
ORQUINAZA tuloy halik sa aking bibig
kaya sa gulat ko ay napatayo ako at
natigilan na tanging ang nasabi ko ay 'SIR,
BAKIT HO? na wala itong sinabi kundi
tumawa lang sa akin kung kaya dali-dali
akong lumabas at agad ay sinabi ko sa
aking kasamahan na si BERT CAPILI at
TESSIE CABUHAT na aking kapatid at
kasamahan din doon at sinabihan naman
ako ng mga ito na 'MANAHIMIK KA NA
LANG AT TALAGANG GANYAN IYAN,
MANYAK IYAN kaya di na ako kumibo .

T: Ano pa ang sumunod na pangyayari?

S:
Noon
pong
kinasabadohan
ay
nakasalubong ko ito at dahil kabiruan ko
noon ang aking mga kasamahan kung
kaya nagtatawanan kami at sinabihan ako
nito ng 'MUKHANG MASAYA KA DAHIL
NAKIPAGHALIKAN KA na sinagot ko naman
ng 'MUKHA NYO at tatawa-tawa pa rin na
parang nakakaloko habang palayo ako,
kaya noong kinagabihan ay sinabi ko na
ang nangyari sa asawa ko kung kaya nagaway kami na hindi naman ako nito
naunawaan kung kaya pinalayas pa ako
sa bahay kaya doon na ako umuwi sa
amin sa Calauan, Laguna at pagpasok ko
ng Huwebes ay kinumpronta ako nitong si
ESMAEL ORQUINAZA at pinasunod ako sa
kanya sa DEVELOPMENT ROOM at
tinanong
ako
na,
'ANO
BA
ANG
PROBLEMA, BAKIT ABSENT ANG IYONG
ASAWA tuloy yapos sa akin kung kaya
itinulak ko siya at sinabi ko na 'IYAN NA
HO ANG DAHILAN KAYA KAMI NAG-AWAY
MAG-ASAWA DAHIL SINABI KO ANG
GINAWA NINYONG PANGHAHALIK AT
PANGHIHIPO SA AKIN na sinabi niya na
'WALA YON, I LIKE YOUR FACE, I LIKE YOU,
NATUWA LANG AKO SA IYO na naputol ang
usapan
namin
dahil
biglang
may
dumating. [19]
This statement was submitted by the
Calamba City Police to the Office of the
Prosecutor for the conduct of the
preliminary investigation. Clearly, Arida's
statement contains all the allegations to
support
the
charge
of
acts
of
lasciviousness under Article 336 of the
Revised Penal Code, i.e., (1) the offender
commits any act of lasciviousness or
lewdness, (2) under any of the following
circumstances:
(a)
using
force
or
intimidation, (b) the offended party is
deprived
of
reason
or
otherwise
unconscious, or (c) offended party is under
12 years of age. Petitioner had the
opportunity to refute all the allegations
made by Arida when the Assistant City
Prosecutor required him to submit his
counter-affidavit. The conduct of another
preliminary investigation for the offense of
acts of lasciviousness would be a futile
exercise because the complainant would
only be presenting the same facts and
evidence which have already been studied

by the prosecutor. The Court frowns upon

such superfluity which only serves to
delay the prosecution and disposition of
the criminal complaint.
The designation by the police officer of the
offense as sexual harassment when she
referred the case to the Office of the
Prosecutor is not conclusive as it is within
the competence of the prosecutor to
assess the evidence submitted and
determine therefrom the appropriate
offense to be charged. That is precisely
the
purpose
of
the
preliminary
investigation. It is a means to allow the
parties to present their affidavits and
counter-affidavits before the prosecutor to
enable the latter to ascertain whether
there is sufficient ground to indict the
accused and to help him prepare the
information to be filed in court. Preliminary
investigation is an inquiry or proceeding to
determine whether there is sufficient
ground to engender a well-founded belief
that a crime has been committed and the
respondent is probably guilty thereof and
should be held for trial. [20]This function
is
lodged
with
the
public
prosecutors. [21] The Court said in the
similar
case
ofPilapil
v.
Sandiganbayan: [22]
Petitioner attaches significance to the fact
that
the
preliminary
investigation
conducted by the Ombudsman against
him was under the title of 'malversation.
According to him, this is not sufficient to
justify the filing of the charge of violation
of Anti-Graft and Corrupt Practices Law.
Petitioner loses sight of the fact that
preliminary
investigation
is
merely
inquisitorial, and it is often the only means
of discovering whether a person may be
reasonably charged with a crime, to
enable the prosecutor to prepare his
complaint
or
information. The
preliminary
designation
of
the
offense in the directive to file a
counter-affidavit and affidavits of
one's witnesses is not conclusive.
Such designation is only a conclusion
of
law
of
Deputy
Ombudsman
Domingo. The Ombudsman is not
bound by the said qualification of the
crime. Rather, he is guided by the
evidence presented in the course of a

preliminary investigation and on the

basis of which, he may formulate and
designate the offense and direct the
filing
of
the
corresponding
information. In
fact,
even
the
designation of the offense by the
prosecutor in the information itself has
been held inconclusive, to wit:
x x x the real nature of the criminal charge
is determined not from the caption or
preamble of the information nor from the
specification of the provision of law
alleged to have been violated, they being
conclusions of law, but by the actual
recital of facts in the complaint or
information. x x x it is not the technical
name given by the Fiscal appearing in the
title of the information that determines the
character of the crime but the facts
alleged
in
the
body
of
the
Information. [23] (emphasis supplied)
Also in that case, the Court found
inapplicable the ruling in Luciano v.
Mariano, [24] the same case cited by
herein petitioner to justify the need for
another preliminary investigation, thus:
Petitioner cites the case of Luciano vs.
Mariano, in support of its view that a new
preliminary investigation is needed. In said
case, however, the original charge for
falsification was dismissed for being
without any factual or legal basis and the
category of the offense was raised as the
alleged violation of the Anti-Graft Law was
a graver charge. In the case at bar, there
is no dismissal to speak of because under
the rules of procedure of the office of the
Ombudsman, a complaint may be
dismissed only upon the written authority
or approval of the Ombudsman. Besides,
even the petitioner admits that the
violation of the Anti-Graft law did not raise
the
category
of
the
offense
of
malversation. [25]
The same observation applies in the case
at bar. After the Calamba City Police
referred the case to the Office of the
Prosecutor, Assistant City Prosecutor Rodel
Paderayon
conducted
a
preliminary
investigation where he required petitioner
and respondent to submit their respective
affidavits and supporting evidence. Based
on the submissions of the parties, he

concluded that the more proper charge

should be acts of lasciviousness, and
accordingly
filed
the
appropriate
information.
Unlike
inLuciano
v.
Mariano, [26] the
Assistant
City
Prosecutor in this case found sufficient
ground to charge petitioner in court. The
complaint against petitioner was not
dismissed. As earlier discussed, the
preliminary
investigation
conducted
against petitioner sufficiently complies
with his right under Rule 112 of the
Revised Rules of Criminal Procedure.
Finally, it is worthy to state that even if it
were necessary to conduct another
preliminary investigation for the charge of
acts of lasciviousness, the lack of such
preliminary investigation would still not be
a ground to quash the information against
the accused. The Court has often held that
the lack of preliminary investigation is not
a ground to quash or dismiss a complaint
or information. Much less does it affect the
court's jurisdiction. [27] The absence of a
preliminary investigation does not affect
the court's jurisdiction over the case nor
impair the validity of the information or
otherwise render it defective. The remedy
of the accused in such case is to call the
attention of the court to the lack of a
preliminary investigation and demand, as
a matter of right, that one be conducted.
The court, instead of dismissing the
information, should merely suspend the
trial and order the fiscal to conduct a
preliminary investigation. [28]
We find, therefore, that the RTC did not err
in affirming the order of the MTCC which
denied the motion of petitioner to quash
the information and to recall the warrant
of arrest against him. We also hold that
the resolution of the first issue raised by
petitioner renders irrelevant the discussion
of the second issue, for even if we find the
motion to quash to be timely filed, it would
still be denied for lack of merit.
IN
VIEW
WHEREOF,
the
petition
is DENIED. Costs against petitioner.
SO ORDERED.
G. R. No. 164317
February 6,
2006
ALFREDO
CHING, Petitioner,
vs.
THE SECRETARY OF JUSTICE, ASST.
CITY PROSECUTOR ECILYN BURGOS-

VILLAVERT, JUDGE EDGARDO SUDIAM

of the Regional Trial Court, Manila,
Branch
52;
RIZAL
COMMERCIAL
BANKING CORP. and THE PEOPLE OF
THE PHILIPPINES, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on
certiorari of the Decision1 of the Court of
Appeals (CA) in CA-G.R. SP No. 57169
dismissing the petition for certiorari,
prohibition and mandamus filed by
petitioner
Alfredo
Ching,
and
its
Resolution2 dated June 28, 2004 denying
the motion for reconsideration thereof.
Petitioner was the Senior Vice-President of
Philippine Blooming Mills, Inc. (PBMI).
Sometime in September to October 1980,
PBMI, through petitioner, applied with the
Rizal Commercial Banking Corporation
(respondent bank) for the issuance of
commercial letters of credit to finance its
importation of assorted goods.3
Respondent
bank
approved
the
application, and irrevocable letters of
credit were issued in favor of petitioner.
The goods were purchased and delivered
in trust to PBMI. Petitioner signed 13 trust
receipts4 as
surety,
acknowledging
delivery of the following goods:
T/
R
No
s.

Dat
e
Gra
nte
d

Mat Princip
urity al
Dat
e

Descriptio
n
of
Goods

18
45

120580

030581

P1,596, 79.9425
470.05 M/T "SDK"
Brand
Synthetic
Graphite
Electrode

18
53

120880

030681

P198,1
50.67

3,000 pcs.
(15
bundles)
Calorized
Lance
Pipes

18
24

112880

022681

P707,8
79.71

One
Lot
High Fired
Refractory
Tundish

Bricks
17
98

112180

021981

P835,5
26.25

5
cases
spare
parts for
CCM

18
08

112180

021981

P370,3
32.52

200 pcs.
ingot
moulds

20
42

013081

043081

P469,6
69.29

High Fired
Refractory
Nozzle
Bricks

18
01

112180

021981

P2,001, Synthetic
715.17 Graphite
Electrode
[with]
tapered
pitch filed
nipples

18
57

120980

030981

P197,8
43.61

3,000 pcs.
(15
bundles
calorized
lance
pipes [)]

18
95

121780

031781

P67,65
2.04

Spare
parts for
Spectroph
otometer

19
11

122280

032081

P91,49
7.85

50
pcs.
Ingot
moulds

20
41

013081

043081

P91,45
6.97

50
pcs.
Ingot
moulds

20
99

021081

051181

P66,16
2.26

8
pcs.
Kubota
Rolls
for
rolling
mills

21
00

021081

051281

P210,7
48.00

Spare
parts for
Lacolabor
atory
Equipmen

t5
Under the receipts, petitioner agreed to
hold the goods in trust for the said bank,
with authority to sell but not by way of
conditional sale, pledge or otherwise; and
in case such goods were sold, to turn over
the proceeds thereof as soon as received,
to apply against the relative acceptances
and payment of other indebtedness to
respondent bank. In case the goods
remained unsold within the specified
period, the goods were to be returned to
respondent bank without any need of
demand. Thus, said "goods, manufactured
products or proceeds thereof, whether in
the form of money or bills, receivables, or
accounts separate and capable of
identification" were respondent banks
property.
When
the
trust
receipts
matured,
petitioner failed to return the goods to
respondent bank, or to return their value
amounting
to P6,940,280.66
despite
demands. Thus, the bank filed a criminal
complaint for estafa6 against petitioner in
the Office of the City Prosecutor of Manila.
After
the
requisite
preliminary
investigation, the City Prosecutor found
probable cause estafa under Article 315,
paragraph 1(b) of the Revised Penal Code,
in relation to Presidential Decree (P.D.) No.
115, otherwise known as the Trust
Receipts Law. Thirteen (13) Informations
were filed against the petitioner before the
Regional Trial Court (RTC) of Manila. The
cases were docketed as Criminal Cases
No. 86-42169 to 86-42181, raffled to
Branch 31 of said court.
Petitioner appealed the resolution of the
City Prosecutor to the then Minister of
Justice. The appeal was dismissed in a
Resolution7 dated March 17, 1987, and
petitioner moved for its reconsideration.
On December 23, 1987, the Minister of
Justice granted the motion, thus reversing
the previous resolution finding probable
cause
against
petitioner.8 The
City
Prosecutor was ordered to move for the
withdrawal of the Informations.
This time, respondent bank filed a motion
for reconsideration, which, however, was
denied on February 24, 1988.9 The RTC, for
its part, granted the Motion to Quash the
Informations filed by petitioner on the

ground that the material allegations

therein did not amount to estafa.10
In the meantime, the Court rendered
judgment in Allied Banking Corporation v.
Ordoez,11 holding that the penal provision
of P.D. No. 115 encompasses any act
violative of an obligation covered by the
trust receipt; it is not limited to
transactions involving goods which are to
be sold (retailed), reshipped, stored or
processed as a component of a product
ultimately sold. The Court also ruled that
"the non-payment of the amount covered
by a trust receipt is an act violative of the
obligation of the entrustee to pay."12
On February 27, 1995, respondent bank
re-filed the criminal complaint for estafa
against petitioner before the Office of the
City Prosecutor of Manila. The case was
docketed as I.S. No. 95B-07614.
Preliminary investigation ensued. On
December 8, 1995, the City Prosecutor
ruled that there was no probable cause to
charge petitioner with violating P.D. No.
115, as petitioners liability was only civil,
not criminal, having signed the trust
receipts as surety.13 Respondent bank
appealed the resolution to the Department
of Justice (DOJ) via petition for review,
alleging that the City Prosecutor erred in
ruling:
1. That there is no evidence to show that
respondent
participated
in
the
misappropriation of the goods subject of
the trust receipts;
2. That the respondent is a mere surety of
the trust receipts; and
3. That the liability of the respondent is
only civil in nature.14
On July 13, 1999, the Secretary of Justice
issued Resolution No. 25015 granting the
petition and reversing the assailed
resolution
of
the
City
Prosecutor.
According to the Justice Secretary, the
petitioner, as Senior Vice-President of
PBMI, executed the 13 trust receipts and
as such, was the one responsible for the
offense. Thus, the execution of said
receipts is enough to indict the petitioner
as the official responsible for violation of
P.D. No. 115. The Justice Secretary also
declared that petitioner could not contend
that P.D. No. 115 covers only goods
ultimately destined for sale, as this issue
had already been settled in Allied Banking

Corporation v. Ordoez,16where the Court

ruled that P.D. No. 115 is "not limited to
transactions in goods which are to be sold
(retailed), reshipped, stored or processed
as a component of a product ultimately
sold but covers failure to turn over the
proceeds of the sale of entrusted goods, or
to return said goods if unsold or not
otherwise disposed of in accordance with
the terms of the trust receipts."
The Justice Secretary further stated that
the respondent bound himself under the
terms of the trust receipts not only as a
corporate official of PBMI but also as its
surety; hence, he could be proceeded
against in two (2) ways: first, as surety as
determined by the Supreme Court in its
decision in Rizal Commercial Banking
Corporation v. Court of Appeals;17 and
second,
as
the
corporate
official
responsible for the offense under P.D. No.
115, via criminal prosecution. Moreover,
P.D. No. 115 explicitly allows the
prosecution of corporate officers "without
prejudice to the civil liabilities arising from
the criminal offense." Thus, according to
the Justice Secretary, following Rizal
Commercial Banking Corporation, the civil
liability imposed is clearly separate and
distinct from the criminal liability of the
accused under P.D. No. 115.
Conformably with the Resolution of the
Secretary of Justice, the City Prosecutor
filed 13 Informations against petitioner for
violation of P.D. No. 115 before the RTC of
Manila. The cases were docketed as
Criminal Cases No. 99-178596 to 99178608 and consolidated for trial before
Branch 52 of said court. Petitioner filed a
motion for reconsideration, which the
Secretary
of
Justice
denied
in
a
Resolution18 dated January 17, 2000.
Petitioner then filed a petition for
certiorari, prohibition and mandamus with
the CA, assailing the resolutions of the
Secretary of Justice on the following
grounds:
1. THE RESPONDENTS ARE ACTING WITH
AN UNEVEN HAND AND IN FACT, ARE
ACTING OPPRESSIVELY AGAINST ALFREDO
CHING WHEN
THEY ALLOWED HIS
PROSECUTION DESPITE THE FACT THAT NO
EVIDENCE HAD BEEN PRESENTED TO
PROVE
HIS
PARTICIPATION
IN
THE
ALLEGED TRANSACTIONS.

2. THE RESPONDENT SECRETARY OF

JUSTICE COMMITTED AN ACT IN GRAVE
ABUSE OF DISCRETION AND IN EXCESS OF
HIS JURISDICTION WHEN THEY CONTINUED
PROSECUTION
OF
THE
PETITIONER
DESPITE THE LENGTH OF TIME INCURRED
IN THE TERMINATION OF THE PRELIMINARY
INVESTIGATION THAT SHOULD JUSTIFY THE
DISMISSAL OF THE INSTANT CASE.
3. THE RESPONDENT SECRETARY OF
JUSTICE
AND
ASSISTANT
CITY
PROSECUTOR ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO AN EXCESS
OF JURISDICTION WHEN THEY CONTINUED
THE PROSECUTION OF THE PETITIONER
DESPITE LACK OF SUFFICIENT BASIS.19
In his petition, petitioner incorporated a
certification stating that "as far as this
Petition is concerned, no action or
proceeding in the Supreme Court, the
Court of Appeals or different divisions
thereof, or any tribunal or agency. It is
finally certified that if the affiant should
learn that a similar action or proceeding
has been filed or is pending before the
Supreme Court, the Court of Appeals, or
different divisions thereof, of any other
tribunal or agency, it hereby undertakes to
notify this Honorable Court within five (5)
days from such notice."20
In its Comment on the petition, the Office
of the Solicitor General alleged that A.
THE HONORABLE SECRETARY OF JUSTICE
CORRECTLY RULED THAT PETITIONER
ALFREDO
CHING
IS
THE
OFFICER
RESPONSIBLE
FOR
THE
OFFENSE
CHARGED AND THAT THE ACTS OF
PETITIONER FALL WITHIN THE AMBIT OF
VIOLATION OF P.D. [No.] 115 IN RELATION
TO ARTICLE 315, PAR. 1(B) OF THE
REVISED PENAL CODE.
B.
THERE IS NO MERIT IN PETITIONERS
CONTENTION THAT EXCESSIVE DELAY HAS
MARRED
THE
CONDUCT
OF
THE
PRELIMINARY INVESTIGATION OF THE
CASE, JUSTIFYING ITS DISMISSAL.
C.
THE PRESENT SPECIAL CIVIL ACTION FOR
CERTIORARI,
PROHIBITION
AND
MANDAMUS IS NOT THE PROPER MODE OF
REVIEW FROM THE RESOLUTION OF THE
DEPARTMENT OF JUSTICE. THE PRESENT

PETITION
MUST
THEREFORE
BE
DISMISSED.21
On April 22, 2004, the CA rendered
judgment dismissing the petition for lack
of merit, and on procedural grounds. On
the procedural issue, it ruled that (a) the
certification
of
non-forum
shopping
executed by petitioner and incorporated in
the petition was defective for failure to
comply with the first two of the three-fold
undertakings prescribed in Rule 7, Section
5 of the Revised Rules of Civil Procedure;
and (b) the petition for certiorari,
prohibition and mandamus was not the
proper remedy of the petitioner.
On the merits of the petition, the CA ruled
that the assailed resolutions of the
Secretary of Justice were correctly issued
for the following reasons: (a) petitioner,
being the Senior Vice-President of PBMI
and the signatory to the trust receipts, is
criminally liable for violation of P.D. No.
115; (b) the issue raised by the petitioner,
on whether he violated P.D. No. 115 by his
actuations, had already been resolved and
laid to rest in Allied Bank Corporation v.
Ordoez;22 and (c) petitioner was estopped
from raising the
City Prosecutors delay in the final
disposition of the preliminary investigation
because he failed to do so in the DOJ.
Thus, petitioner filed the instant petition,
alleging that:
I
THE COURT OF APPEALS ERRED WHEN IT
DISMISSED THE PETITION
ON THE
GROUND THAT THE CERTIFICATION OF
NON-FORUM SHOPPING INCORPORATED
THEREIN WAS DEFECTIVE.
II
THE COURT OF APPEALS ERRED WHEN IT
RULED THAT NO GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR
EXCESS
OF
JURISDICTION
WAS
COMMITTED BY THE SECRETARY OF
JUSTICE IN COMING OUT WITH THE
ASSAILED RESOLUTIONS.23
The Court will delve into and resolve the
issues seriatim.
The petitioner avers that the CA erred in
dismissing his petition on a mere
technicality. He claims that the rules of
procedure should be used to promote, not
frustrate, substantial justice. He insists
that the Rules of Court should be

construed liberally especially when, as in

this case, his substantial rights are
adversely affected; hence, the deficiency
in his certification of non-forum shopping
should not result in the dismissal of his
petition.
The Office of the Solicitor General (OSG)
takes the opposite view, and asserts that
indubitably, the certificate of non-forum
shopping incorporated in the petition
before the CA is defective because it failed
to disclose essential facts about pending
actions concerning similar issues and
parties. It asserts that petitioners failure
to comply with the Rules of Court is fatal
to his petition. The OSG cited Section 2,
Rule 42, as well as the ruling of this Court
in Melo v. Court of Appeals.24
We agree with the ruling of the CA that the
certification
of
non-forum
shopping
petitioner incorporated in his petition
before the appellate court is defective.
The certification reads:
It is further certified that as far as this
Petition is concerned, no action or
proceeding in the Supreme Court, the
Court of Appeals or different divisions
thereof, or any tribunal or agency.
It is finally certified that if the affiant
should learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, of
any other tribunal or agency, it hereby
undertakes to notify this Honorable Court
within five (5) days from such notice.25
Under Section 1, second paragraph of Rule
65 of the Revised Rules of Court, the
petition should be accompanied by a
sworn certification of non-forum shopping,
as provided in the third paragraph of
Section 3, Rule 46 of said Rules. The latter
provision reads in part:
SEC. 3. Contents and filing of petition;
effect
of
non-compliance
with
requirements. The petition shall contain
the full names and actual addresses of all
the petitioners and respondents, a concise
statement of the matters involved, the
factual background of the case and the
grounds relied upon for the relief prayed
for.
xxx
The petitioner shall also submit together
with the petition a sworn certification that

he has not theretofore commenced any

other action involving the same issues in
the Supreme Court, the Court of Appeals
or different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or
any other tribunal or agency, he
undertakes to promptly inform the
aforesaid courts and other tribunal or
agency thereof within five (5) days
therefrom. xxx
Compliance with the certification against
forum shopping is separate from and
independent of the avoidance of forum
shopping itself. The requirement is
mandatory. The failure of the petitioner to
comply with the foregoing requirement
shall be sufficient ground for the dismissal
of the petition without prejudice, unless
otherwise provided.26
Indubitably, the first paragraph of
petitioners certification is incomplete and
unintelligible. Petitioner failed to certify
that he "had not heretofore commenced
any other action involving the same issues
in the Supreme Court, the Court of
Appeals or the different divisions thereof
or any other tribunal or agency" as
required by paragraph 4, Section 3, Rule
46 of the Revised Rules of Court.
We agree with petitioners contention that
the certification is designed to promote
and facilitate the orderly administration of
justice, and therefore, should not be
interpreted with absolute literalness. In his
works on the Revised Rules of Civil
Procedure, former Supreme Court Justice
Florenz Regalado states that, with respect
to the contents of the certification which
the pleader may prepare, the rule of
substantial compliance may be availed
of.27 However, there must be a special
circumstance or compelling reason which
makes the strict application of the
requirement
clearly
unjustified.
The
instant petition has not alleged any such
extraneous circumstance. Moreover, as
worded, the certification cannot even be
regarded as substantial compliance with
the procedural requirement. Thus, the CA

was not informed whether, aside from the

petition
before
it,
petitioner
had
commenced any other action involving the
same issues in other tribunals.
On the merits of the petition, the CA ruled
that the petitioner failed to establish that
the Secretary of Justice committed grave
abuse of discretion in finding probable
cause against the petitioner for violation
of estafa under Article 315, paragraph 1(b)
of the Revised Penal Code, in relation to
P.D. No. 115. Thus, the appellate court
ratiocinated:
Be that as it may, even on the merits, the
arguments advanced in support of the
petition are not persuasive enough to
justify the desired conclusion that
respondent Secretary of Justice gravely
abused its discretion in coming out with
his assailed Resolutions. Petitioner posits
that, except for his being the Senior VicePresident of the PBMI, there is no iota of
evidence that he was a participes crimines
in violating the trust receipts sued upon;
and that his liability, if at all, is purely civil
because he signed the said trust receipts
merely as a xxx surety and not as the
entrustee. These assertions are, however,
too dull that they cannot even just dent
the findings of the respondent Secretary,
viz:
"x x x it is apropos to quote section 13 of
PD 115 which states in part, viz:
xxx If the violation or offense is
committed by a corporation, partnership,
association or other judicial entities, the
penalty provided for in this Decree shall
be imposed upon the directors, officers,
employees or other officials or persons
therein responsible for the offense,
without prejudice to the civil liabilities
arising from the criminal offense.
"There is no dispute that it was the
respondent, who as senior vice-president
of PBM, executed the thirteen (13) trust
receipts. As such, the law points to him as
the official responsible for the offense.
Since a corporation cannot be proceeded
against criminally because it cannot
commit crime in which personal violence
or malicious intent is required, criminal
action is limited to the corporate agents
guilty of an act amounting to a crime and
never against the corporation itself (West
Coast Life Ins. Co. vs. Hurd, 27 Phil. 401;

Times, [I]nc. v. Reyes, 39 SCRA 303). Thus,

the execution by respondent of said
receipts is enough to indict him as the
official responsible for violation of PD 115.
"Parenthetically, respondent is estopped
to still contend that PD 115 covers only
goods which are ultimately destined for
sale and not goods, like those imported by
PBM, for use in manufacture. This issue
has already been settled in the Allied
Banking Corporation case, supra, where
he was also a party, when the Supreme
Court ruled that PD 115 is not limited to
transactions in goods which are to be sold
(retailed), reshipped, stored or processed
as a component or a product ultimately
sold but covers failure to turn over the
proceeds of the sale of entrusted goods, or
to return said goods if unsold or disposed
of in accordance with the terms of the
trust receipts.
"In regard to the other assigned errors, we
note that the respondent bound himself
under the terms of the trust receipts not
only as a corporate official of PBM but also
as its surety. It is evident that these are
two (2) capacities which do not exclude
the other. Logically, he can be proceeded
against in two (2) ways: first, as surety as
determined by the Supreme Court in its
decision in RCBC vs. Court of Appeals, 178
SCRA 739; and, secondly, as the corporate
official responsible for the offense under
PD 115, the present case is an appropriate
remedy under our penal law.
"Moreover, PD 115 explicitly allows the
prosecution of corporate officers without
prejudice to the civil liabilities arising from
the criminal offense thus, the civil liability
imposed on respondent in RCBC vs. Court
of Appeals case is clearly separate and
distinct from his criminal liability under PD
115."28
Petitioner asserts that the appellate
courts ruling is erroneous because (a) the
transaction between PBMI and respondent
bank is not a trust receipt transaction; (b)
he entered into the transaction and was
sued in his capacity as PBMI Senior VicePresident; (c) he never received the goods
as an entrustee for PBMI, hence, could not
have committed any dishonesty or abused
the confidence of respondent bank; and
(d) PBMI acquired the goods and used the

same in operating its machineries and

equipment and not for resale.
The OSG, for its part, submits a contrary
view, to wit:
34. Petitioner further claims that he is not
a person responsible for the offense
allegedly because "[b]eing charged as the
Senior
Vice-President
of
Philippine
Blooming Mills (PBM), petitioner cannot be
held criminally liable as the transactions
sued upon were clearly entered into in his
capacity as an officer of the corporation"
and that [h]e never received the goods as
an entrustee for PBM as he never had or
took possession of the goods nor did he
commit
dishonesty
nor
"abuse
of
confidence in transacting with RCBC."
Such argument is bereft of merit.
35. Petitioners being a Senior VicePresident of the Philippine Blooming Mills
does not exculpate him from any liability.
Petitioners responsibility as the corporate
official of PBM who received the goods in
trust is premised on Section 13 of P.D. No.
115, which provides:
Section 13. Penalty Clause. The failure of
an entrustee to turn over the proceeds of
the sale of the goods, documents or
instruments covered by a trust receipt to
the extent of the amount owing to the
entruster or as appears in the trust receipt
or to return said goods, documents or
instruments if they were not sold or
disposed of in accordance with the terms
of the trust receipt shall constitute the
crime of estafa, punishable under the
provisions of Article Three hundred and
fifteen, paragraph one (b) of Act
Numbered Three thousand eight hundred
and fifteen, as amended, otherwise known
as the Revised Penal Code. If the violation
or offense is committed by a corporation,
partnership, association or other juridical
entities, the penalty provided for in this
Decree shall be imposed upon the
directors, officers, employees or other
officials or persons therein responsible for
the offense, without prejudice to the civil
liabilities arising from the criminal offense.
(Emphasis supplied)
36. Petitioner having participated in the
negotiations for the trust receipts and
having received the goods for PBM, it was
inevitable that the petitioner is the proper
corporate officer to be proceeded against

by virtue of the PBMs violation of P.D. No.

115.29
The ruling of the CA is correct.
In Mendoza-Arce v. Office of the
Ombudsman (Visayas),30 this Court held
that the acts of a quasi-judicial officer may
be assailed by the aggrieved party via a
petition for certiorari and enjoined (a)
when necessary to afford adequate
protection to the constitutional rights of
the accused; (b) when necessary for the
orderly administration of justice; (c) when
the acts of the officer are without or in
excess of authority; (d) where the charges
are manifestly false and motivated by the
lust for vengeance; and (e) when there is
clearly no prima facie case against the
accused.31 The Court also declared that, if
the officer conducting a preliminary
investigation (in that case, the Office of
the Ombudsman) acts without or in excess
of his authority and resolves to file an
Information despite the absence of
probable cause, such act may be nullified
by a writ of certiorari.32
Indeed, under Section 4, Rule 112 of the
2000 Rules of Criminal Procedure, 33 the
Information shall be prepared by the
Investigating Prosecutor against the
respondent only if he or she finds probable
cause to hold such respondent for trial.
The Investigating Prosecutor acts without
or in excess of his authority under the Rule
if the Information is filed against the
respondent despite absence of evidence
showing probable cause therefor.34 If the
Secretary
of
Justice
reverses
the
Resolution of the Investigating Prosecutor
who found no probable cause to hold the
respondent for trial, and orders such
prosecutor to file the Information despite
the absence of probable cause, the
Secretary of Justice acts contrary to law,
without authority and/or in excess of
authority. Such resolution may likewise be
nullified in a petition for certiorari under
Rule 65 of the Revised Rules of Civil
Procedure.35
A preliminary investigation, designed to
secure the respondent against hasty,
malicious and oppressive prosecution, is
an inquiry to determine whether (a) a
crime has been committed; and (b)
whether there is probable cause to believe
that the accused is guilty thereof. It is a

means of discovering the person or

persons who may be reasonably charged
with a crime. Probable cause need not be
based on clear and convincing evidence of
guilt, as the investigating officer acts upon
probable cause of reasonable belief.
Probable cause implies probability of guilt
and requires more than bare suspicion but
less than evidence which would justify a
conviction. A finding of probable cause
needs only to rest on evidence showing
that more likely than not, a crime has
been committed by the suspect.36
However, while probable cause should be
determined in a summary manner, there is
a need to examine the evidence with care
to prevent material damage to a potential
accuseds constitutional right to liberty
and the guarantees of freedom and fair
play37 and to protect the State from the
burden of unnecessary expenses in
prosecuting alleged offenses and holding
trials arising from false, fraudulent or
groundless charges.38
In this case, petitioner failed to establish
that the Secretary of Justice committed
grave abuse of discretion in issuing the
assailed resolutions. Indeed, he acted in
accord with law and the evidence.
Section 4 of P.D. No. 115 defines a trust
receipt transaction, thus:
Section 4. What constitutes a trust receipt
transaction. A trust receipt transaction,
within the meaning of this Decree, is any
transaction by and between a person
referred to in this Decree as the entruster,
and another person referred to in this
Decree as entrustee, whereby the
entruster, who owns or holds absolute title
or security interests over certain specified
goods,
documents
or
instruments,
releases the same to the possession of the
entrustee upon the latters execution and
delivery to the entruster of a signed
document called a "trust receipt" wherein
the entrustee binds himself to hold the
designated
goods,
documents
or
instruments in trust for the entruster and
to sell or otherwise dispose of the goods,
documents or instruments with the
obligation to turn over to the entruster the
proceeds thereof to the extent of the
amount owing to the entruster or as
appears in the trust receipt or the goods,
documents or instruments themselves if

they are unsold or not otherwise disposed

of, in accordance with the terms and
conditions specified in the trust receipt, or
for other purposes substantially equivalent
to any of the following:
1. In case of goods or documents, (a) to
sell the goods or procure their sale; or (b)
to manufacture or process the goods with
the purpose of ultimate sale; Provided,
That, in the case of goods delivered under
trust
receipt
for
the
purpose
of
manufacturing or processing before its
ultimate sale, the entruster shall retain its
title over the goods whether in its original
or processed form until the entrustee has
complied fully with his obligation under
the trust receipt; or (c) to load, unload,
ship or otherwise deal with them in a
manner preliminary or necessary to their
sale; or
2. In the case of instruments a) to sell or
procure their sale or exchange; or b) to
deliver them to a principal; or c) to effect
the consummation of some transactions
involving delivery to a depository or
register; or d) to effect their presentation,
collection or renewal.
The sale of goods, documents or
instruments by a person in the business of
selling goods, documents or instruments
for profit who, at the outset of the
transaction, has, as against the buyer,
general property rights in such goods,
documents or instruments, or who sells
the same to the buyer on credit, retaining
title or other interest as security for the
payment of the purchase price, does not
constitute a trust receipt transaction and
is outside the purview and coverage of
this Decree.
An entrustee is one having or taking
possession of goods, documents or
instruments
under
a
trust
receipt
transaction, and any successor in interest
of such person for the purpose of payment
specified
in
the
trust
receipt
agreement.39 The entrustee is obliged to:
(1) hold the goods, documents or
instruments in trust for the entruster and
shall
dispose
of
them
strictly
in
accordance with the terms and conditions
of the trust receipt; (2) receive the
proceeds in trust for the entruster and
turn over the same to the entruster to the
extent of the amount owing to the

entruster or as appears on the trust

receipt; (3) insure the goods for their total
value against loss from fire, theft,
pilferage or other casualties; (4) keep said
goods or proceeds thereof whether in
money or whatever form, separate and
capable of identification as property of the
entruster; (5) return the goods, documents
or instruments in the event of non-sale or
upon demand of the entruster; and (6)
observe all other terms and conditions of
the trust receipt not contrary to the
provisions of the decree.40
The entruster shall be entitled to the
proceeds from the sale of the goods,
documents or instruments released under
a trust receipt to the entrustee to the
extent of the amount owing to the
entruster or as appears in the trust
receipt, or to the return of the goods,
documents or instruments in case of nonsale, and to the enforcement of all other
rights conferred on him in the trust
receipt; provided, such are not contrary to
the provisions of the document.41
In the case at bar, the transaction
between petitioner and respondent bank
falls under the trust receipt transactions
envisaged in P.D. No. 115. Respondent
bank imported the goods and entrusted
the same to PBMI under the trust receipts
signed by petitioner, as entrustee, with
the bank as entruster. The agreement was
as follows:
And in consideration thereof, I/we hereby
agree to hold said goods in trust for the
said BANK as its property with liberty to
sell the same within ____days from the
date of the execution of this Trust Receipt
and for the Banks account, but without
authority to make any other disposition
whatsoever of the said goods or any part
thereof (or the proceeds) either by way of
conditional sale, pledge or otherwise.
I/we agree to keep the said goods insured
to their full value against loss from fire,
theft, pilferage or other casualties as
directed by the BANK, the sum insured to
be payable in case of loss to the BANK,
with the understanding that the BANK is,
not to be chargeable with the storage
premium or insurance or any other
expenses incurred on said goods.
In case of sale, I/we further agree to turn
over the proceeds thereof as soon as

received to the BANK, to apply against the

relative acceptances (as described above)
and for the payment of any other
indebtedness of mine/ours to the BANK. In
case of non-sale within the period
specified herein, I/we agree to return the
goods under this Trust Receipt to the BANK
without any need of demand.
I/we agree to keep the said goods,
manufactured
products
or
proceeds
thereof, whether in the form of money or
bills, receivables, or accounts separate
and capable of identification as property
of the BANK.42
It must be stressed that P.D. No. 115 is a
declaration by legislative authority that, as
a matter of public policy, the failure of
person to turn over the proceeds of the
sale of the goods covered by a trust
receipt or to return said goods, if not sold,
is a public nuisance to be abated by the
imposition of penal sanctions.43
The Court likewise rules that the issue of
whether P.D. No. 115 encompasses
transactions involving goods procured as a
component of a product ultimately sold
has been resolved in the affirmative in
Allied
Banking
Corporation
v.
Ordoez.44 The law applies to goods used
by the entrustee in the operation of its
machineries and equipment. The nonpayment of the amount covered by the
trust receipts or the non-return of the
goods covered by the receipts, if not sold
or otherwise not disposed of, violate the
entrustees obligation to pay the amount
or to return the goods to the entruster.
In Colinares v. Court of Appeals, 45 the
Court declared that there are two possible
situations in a trust receipt transaction.
The first is covered by the provision which
refers to money received under the
obligation involving the duty to deliver it
(entregarla) to the owner of the
merchandise sold. The second is covered
by the provision which refers to
merchandise received under the obligation
to
return
it
(devolvera)
to
the
owner.46 Thus, failure of the entrustee to
turn over the proceeds of the sale of the
goods covered by the trust receipts to the
entruster or to return said goods if they
were not disposed of in accordance with
the terms of the trust receipt is a crime
under P.D. No. 115, without need of

proving intent to defraud. The law

punishes dishonesty and abuse of
confidence in the handling of money or
goods to the prejudice of the entruster,
regardless of whether the latter is the
owner or not. A mere failure to deliver the
proceeds of the sale of the goods, if not
sold, constitutes a criminal offense that
causes prejudice, not only to another, but
more to the public interest.47
The Court rules that although petitioner
signed the trust receipts merely as Senior
Vice-President of PBMI and had no physical
possession of the goods, he cannot avoid
prosecution for violation of P.D. No. 115.
The penalty clause of the law, Section 13
of P.D. No. 115 reads:
Section 13. Penalty Clause. The failure of
an entrustee to turn over the proceeds of
the sale of the goods, documents or
instruments covered by a trust receipt to
the extent of the amount owing to the
entruster or as appears in the trust receipt
or to return said goods, documents or
instruments if they were not sold or
disposed of in accordance with the terms
of the trust receipt shall constitute the
crime of estafa, punishable under the
provisions of Article Three hundred and
fifteen, paragraph one (b) of Act
Numbered Three thousand eight hundred
and fifteen, as amended, otherwise known
as the Revised Penal Code.1wphi1 If the
violation or offense is committed by a
corporation, partnership, association or
other juridical entities, the penalty
provided for in this Decree shall be
imposed upon the directors, officers,
employees or other officials or persons
therein responsible for the offense,
without prejudice to the civil liabilities
arising from the criminal offense.
The crime defined in P.D. No. 115 is malum
prohibitum but is classified as estafa
under paragraph 1(b), Article 315 of the
Revised Penal Code, or estafa with abuse
of confidence. It may be committed by a
corporation or other juridical entity or by
natural persons. However, the penalty for
the crime is imprisonment for the periods
provided in said Article 315, which reads:
ARTICLE 315. Swindling (estafa). Any
person who shall defraud another by any
of the means mentioned hereinbelow shall
be punished by:

1st. The penalty of prision correccional in

its maximum period to prision mayor in its
minimum period, if the amount of the
fraud is over 12,000 pesos but does not
exceed 22,000 pesos; and if such amount
exceeds the latter sum, the penalty
provided in this paragraph shall be
imposed in its maximum period, adding
one year for each additional 10,000 pesos;
but the total penalty which may be
imposed shall not exceed twenty years. In
such cases, and in connection with the
accessory penalties which may be
imposed and for the purpose of the other
provisions of this Code, the penalty shall
be termed prision mayor or reclusion
temporal, as the case may be;
2nd. The penalty of prision correccional in
its minimum and medium periods, if the
amount of the fraud is over 6,000 pesos
but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its
maximum period to prision correccional in
its minimum period, if such amount is over
200 pesos but does not exceed 6,000
pesos; and
4th. By arresto mayor in its medium and
maximum periods, if such amount does
not exceed 200 pesos, provided that in the
four cases mentioned, the fraud be
committed by any of the following means;
xxx
Though the entrustee is a corporation,
nevertheless, the law specifically makes
the officers, employees or other officers or
persons responsible for the offense,
without prejudice to the civil liabilities of
such corporation and/or board of directors,
officers, or other officials or employees
responsible for the offense. The rationale
is that such officers or employees are
vested
with
the
authority
and
responsibility to devise means necessary
to ensure compliance with the law and, if
they fail to do so, are held criminally
accountable; thus, they have a responsible
share in the violations of the law.48
If the crime is committed by a corporation
or other juridical entity, the directors,
officers, employees or other officers
thereof responsible for the offense shall be
charged and penalized for the crime,
precisely because of the nature of the
crime and the penalty therefor. A
corporation cannot be arrested and

imprisoned; hence, cannot be penalized

for
a
crime
punishable
by
imprisonment.49 However, a corporation
may be charged and prosecuted for a
crime if the imposable penalty is fine.
Even if the statute prescribes both fine
and
imprisonment
as
penalty,
a
corporation may be prosecuted and, if
found guilty, may be fined.50
A crime is the doing of that which the
penal code forbids to be done, or omitting
to do what it commands. A necessary part
of the definition of every crime is the
designation of the author of the crime
upon whom the penalty is to be inflicted.
When a criminal statute designates an act
of a corporation or a crime and prescribes
punishment therefor, it creates a criminal
offense which, otherwise, would not exist
and such can be committed only by the
corporation. But when a penal statute
does not expressly apply to corporations,
it does not create an offense for which a
corporation may be punished. On the
other hand, if the State, by statute,
defines a crime that may be committed by
a corporation but prescribes the penalty
therefor to be suffered by the officers,
directors,
or
employees
of
such
corporation or other persons responsible
for the offense, only such individuals will
suffer such penalty.51 Corporate officers or
employees, through whose act, default or
omission the corporation commits a crime,
are themselves individually guilty of the
crime.52
The principle applies whether or not the
crime requires the consciousness of
wrongdoing. It applies to those corporate
agents who themselves commit the crime
and to those, who, by virtue of their
managerial positions or other similar
relation to the corporation, could be
deemed responsible for its commission, if
by virtue of their relationship to the
corporation, they had the power to
prevent the act.53 Moreover, all parties
active in promoting a crime, whether
agents or not, are principals. 54 Whether
such officers or employees are benefited
by their delictual acts is not a touchstone
of their criminal liability. Benefit is not an
operative fact.
In this case, petitioner signed the trust
receipts in question. He cannot, thus, hide

behind the cloak of the separate corporate

personality of PBMI. In the words of Chief
Justice Earl Warren, a corporate officer
cannot
protect
himself
behind
a
corporation where he is the actual,
present and efficient actor.55
IN LIGHT OF ALL THE FOREGOING, the
petition is DENIED for lack of merit. Costs
against the petitioner.
SO ORDERED.
ROMEO
J.
CALLEJO,
SR.
Associate Justice
WE CONCUR:
LAILA G. DE OCAMPO, G.R. No.
147932
Petitioner,
Present:
QUISUMBING, J., Chairperson,
CARPIO,
-versus- CARPIO MORALES, and
TINGA, JJ.
THE HONORABLE
SECRETARY OF JUSTICE,
MAGDALENA
DACARRA, Promulgated:
and ERLINDA P. ORAYAN,
Respondents. January 25, 2006

B.

x- - - - - - - - - - - - - - - - - - - - - - - - - - ------------------------x
DECISION
CARPIO, J.:
The Case
This petition for certiorari[1] assails the
Resolutions dated 15 September 2000 and
19 April 2001 of the Secretary of the
Department of Justice (DOJ Secretary) in
I.C.
No.
99-6254.[2] The
DOJ
[3]
Secretary denied Laila G. De Ocampos
(petitioner) petition for review of the
investigating
prosecutors
finding
of
probable
cause
against
her
for
homicide[4]in relation to Section 10(a),
Article VI of Republic Act No. 7610 (RA
7610)[5] and for violation of the same
provision
of
RA
7610.
The
DOJ

Secretary[6] also denied petitioners motion

for reconsideration.

The Facts
The present case arose from a sworn
statement of respondent Magdalena B.
Dacarra (Magdalena) executed before the
Womens Desk of the CPD Police Station in
Batasan Hills, Quezon City on 10
December 1999. Magdalena stated that on
4 December 1999, her nine-year-old son
Ronald complained of dizziness upon
arriving home at about six in the evening.
Ronald
then
vomited,
prompting
Magdalena to ask what happened. Ronald
replied that petitioner, who was Ronalds
teacher, banged his head against that of
his classmate Lorendo Orayan (Lorendo).
Magdalena inspected Ronalds head and
saw a woundless contusion. Due to
Ronalds continued vomiting, Magdalena
brought him to a quack doctor (arbularyo)
on 5 December 1999. The following
morning, Magdalena brought Ronald to the
East Avenue Medical Center where he
underwent an x-ray. The attending
physician
informed
Magdalena
that
Ronalds head had a fracture. Blood oozed
out of Ronalds nose before he died on 9
December 1999.
Lorendo also executed a sworn statement
narrating how petitioner banged his head
against Ronalds.

During the inquest proceedings on 14

December 1999, Assistant Quezon City
Prosecutor Maria Lelibet Sampaga (inquest
prosecutor) ruled as follows:
Evidence warrants the release of the
respondent for further investigation of the
charges against her. The case is not
proper for inquest as the incident
complained of happened on December 4,
1999. Further, we find the evidence
insufficient to support the charge for
homicide against the respondent. There is
no concrete evidence to show proof that
the alleged banging of the heads of the

two minor victims could be the actual and

proximate cause of the death of minor
Ronald Dacarra y Baluton. Besides, the
police report submitted by the respondent
in this case states that said victim bears
stitches or sutures on the head due to a
vehicular accident. There is no certainty,
therefore,
that
respondents
alleged
wrongdoing contributed or caused the
death of said victim.[7]
Subsequently, the case was referred to
Assistant Quezon City Prosecutor Lorna F.
Catris-Chua
Cheng
(investigating
prosecutor) for preliminary investigation.
She scheduled the first hearing on 6
January 2000.
Respondent Erlinda P. Orayan (Erlinda),
Lorendos mother, attended the hearing of
6 January 2000 and alleged that petitioner
offered her P100,000, which she initially
accepted, for her and her sons nonappearance
at
the
preliminary
investigation.
Erlinda
presented
the
money to the investigating prosecutor.
On 7 January 2000, Jennilyn Quirong, who
witnessed the head-banging incident, and
Melanie Lugales, who claimed to be
another victim of petitioners alleged cruel
deeds, filed their sworn statements with
the Office of the Quezon City Prosecutor.

On 18 January 2000, petitioner submitted

her counter-affidavit. Petitioner invoked
the disposition of the inquest prosecutor
finding insufficient evidence to support the
charges against her. Petitioner assailed
the omission in Magdalenas sworn
statement about Ronalds head injury due
to a vehicular accident in November 1997.
Petitioner pointed out the absence of
damage or injury on Lorendo as borne out
by his medical certificate. Petitioner
contended that the head-banging incident
was not the proximate cause of Ronalds
death, but the failed medical attention or
medical negligence. Petitioner also alleged
that Jennilyn Quirong and Melanie Lugales
have immature perception. Petitioner
further asserted that the causes of death

stated in Ronalds Death Certificate are

hearsay
and
inadmissible
in
the
preliminary investigation.
Ronalds Death Certificate shows the
immediate cause of his death as Cardio
Pulmonary Arrest, the underlying cause as
Cerebral Edema, and other significant
conditions contributing to death as
Electrolyte imbalance and vomiting. The
Autopsy
Report,
obtained
by
the
investigating prosecutor from the PNP
Crime Laboratory in Camp Crame, states
the cause of death as Intracranial
hemorrhage secondary to traumatic injury
of the head.
The investigating prosecutor issued a
Resolution finding probable cause against
petitioner for the offenses charged. The
dispositive portion of the Resolution reads:
WHEREFORE, in view of the foregoing, it is
respectfully
recommended
that
[petitioner] be charged with Homicide in
relation to Art. VI, Sec. 10 of R.A. 7610 and
Violation of Art. VI, Sec. 10(a) of R.A. 7610
with no bail recommended for the
Homicide since par. 6 of Art. VI of Sec. 10
of R.A. 7610 provides that:
For purposes of this Act, the penalty for
the commission of acts punishable under
Articles 248, 249, 262, par. 2 and 263, par.
1 Act No. 3815, as amended, the Revised
Penal
Code,
for
the
crimes
of
murder,homicide,
other
intentional
mutilation and serious physical injuries,
respectively,
shall
be reclusion
perpetua when the victim is under twelve
(12) years of age.
Bail recommended: No bail recommended
Homicide, in relation to Art. VI, Sec. 10,
R.A. 7610; and Twenty Thousand pesos
(P20,000.00) Viol. of Sec. 10(a) of R.A.
7610[8]
Consequently, petitioner filed a petition
for review with the DOJ.
In her appeal to the DOJ, petitioner
contended
that
the
investigating
prosecutor showed bias in favor of

complainants Magdalena and Erlinda

(complainants) for not conducting a
clarificatory hearing and unilaterally
procuring the autopsy report. Petitioner
argued that the investigating prosecutor
erred in concluding that her alleged act of
banging Ronald and Lorendos heads was
the cause of Ronalds injury and that such
was an act of child abuse. Petitioner also
alleged that it is the Office of the
Ombudsman which has jurisdiction over
the case, and not the Quezon City
Prosecutors Office.
The Resolution of the DOJ Secretary
The DOJ Secretary denied the petition for
review. The DOJ Secretary held that there
was no bias in complainants favor when
the investigating prosecutor did not
conduct a clarificatory hearing and
unilaterally procured the autopsy report as
nothing precluded her from doing so.
The
DOJ
Secretary
upheld
the
investigating prosecutors finding that
Ronalds injury was the direct and natural
result of petitioners act of banging Ronald
and Lorendos heads. The DOJ Secretary
stated that petitioner never denied such
act, making her responsible for all its
consequences even if the immediate
cause of Ronalds death was allegedly the
failed medical attention or medical
negligence. The DOJ Secretary held that
assuming there was failure of medical
attention or medical negligence, these
inefficient intervening causes did not
break the relation of the felony committed
and the resulting injury.
The DOJ Secretary rejected petitioners
claim that she is innocent as held by the
inquest prosecutor. The inquest prosecutor
did not dismiss the case. She merely
recommended petitioners release for
further investigation since the case was
not proper for inquest and the evidence
was then insufficient.
The DOJ Secretary further stated that the
omission in Magdalenas sworn statement
about Ronalds head injury due to a
vehicular accident in November 1997 and

the absence of any injury on Lorendo are

inconsequential.
Moreover, the DOJ Secretary ruled that
whether the statements of the causes of
death in the death certificate and autopsy
report are hearsay, and whether Jennilyn
Quirong and Melanie Lugales have
immature perception, are evidentiary
matters which should be determined
during trial. The DOJ Secretary also
sustained the investigating prosecutors
conclusion that the banging of Ronald and
Lorendos heads is an act of child abuse.
Petitioner
filed
a
motion
for
reconsideration[9] which the DOJ Secretary
denied in his Resolution dated 19 April
2001.[10]
Hence, this petition.

The Issues
Petitioner raises the following issues:
1.
Whether petitioner was denied due
process
during
the
preliminary
investigation; and
2. Whether there is probable cause
against petitioner for homicide under
Article 249 of the Revised Penal Code in
relation to Section 10(a), Article VI of RA
7610 and for violation of Section 10(a),
Article VI of RA 7610.

The Ruling of the Court

The petition lacks merit.
Before resolving the substantive issues in
this case, the Court will address the
procedural issue raised by the Office of
the
Solicitor
General
(OSG).
[11]
The OSG contends that instead of Rule
65, Rule 43 is applicable to the present
case. Thus, the OSG argues that the

petition should be dismissed outright for

being filed with this Court, instead of with
the Court of Appeals, under a wrong mode
of appeal. On the other hand, assuming
Rule 65 applies, the OSGpoints out that
the petition for certiorari should be filed
with the Court of Appeals.
Based on Memorandum Circular No. 58,
[12]
the resolution of the DOJ Secretary is
appealable administratively to the Office
of the President since the offenses
charged in this case are punishable
by reclusion perpetua.[13] From the Office
of the President, the aggrieved party may
file an appeal with the Court of Appeals
pursuant to Rule 43.[14]
Even assuming that the DOJ Secretary
committed grave abuse of discretion in
rendering
the
assailed
Resolutions
amounting to lack or excess of jurisdiction,
petitioner should have filed the instant
petition forcertiorari with the Court of
Appeals. Hence, on the issue alone of the
propriety of the remedy sought by
petitioner, this petition for certiorari must
fail. However, considering the gravity of
the offenses charged and the need to
expedite the disposition of this case, the
Court will relax the rules and finally
resolve this case in the interest of
substantial justice.
Whether petitioner was denied
due process during the preliminary
investigation
Absence of a clarificatory hearing
The Court rejects petitioners contention
that she was denied due process when the
investigating prosecutor did not conduct a
clarificatory
hearing.
A
clarificatory
hearing is not indispensable during
preliminary investigation. Rather than
being mandatory, a clarificatory hearing is
optional on the part of the investigating
officer as evidenced by the use of the
term may in Section 3(e) of Rule 112. This
provision states:

(e) If
the
investigating
officer
believes that there are matters to be
clarified, he may set a hearing to
propound clarificatory questions to the
parties or their witnesses, during which
the
parties shall be
afforded an
opportunity to be present but without the
right to examine or cross-examine.
xxx[15] (emphasis supplied)
The use of the word may in a statute
commonly denotes that it is directory in
nature. The term may is generally
permissive only and operates to confer
discretion.[16] Under Section 3(e) of Rule
112, it is within the discretion of the
investigation officer whether to set the
case for further hearings to clarify some
matters.
In this case, the investigating prosecutor
no longer conducted hearings after
petitioner submitted her counter-affidavit.
This simply means that at that point the
investigating prosecutor believed that
there were no more matters for
clarification. It is only in petitioners mind
that some crucial points still exist and
need clarification. In any event, petitioner
can raise these important matters during
the trial proper.
Petitioner was not deprived of due process
since both parties were accorded equal
rights in arguing their case and presenting
their respective evidence during the
preliminary investigation. Due process is
merely an opportunity to be heard.
[17]
Petitioner cannot successfully invoke
denial of due process since she was given
the opportunity of a hearing.[18] She even
submitted her counter-affidavit to the
investigating prosecutor on 18 January
2000.
Preliminary
investigation
is
merely
inquisitorial. It is not a trial of the case on
the merits.[19] Its sole purpose is to
determine whether a crime has been
committed and whether the respondent
is probably guilty of the crime.[20] It is
not the occasion for the full and
exhaustive display of the parties evidence.
[21]
Hence, if the investigating prosecutor is

already satisfied that he can reasonably

determine the existence of probable cause
based on the parties evidence thus
presented,
he
may
terminate
the
proceedings and resolve the case.
Obtaining a copy of the autopsy report
Petitioner argues that she was denied the
right to examine evidence submitted by
complainants when the investigating
prosecutor unilaterally obtained a copy of
the autopsy report from the PNP Crime
Laboratory.
Petitioner fails to persuade us. Though the
autopsy report is not part of the parties
evidence, the Rules on preliminary
investigation
do
not
forbid
the
investigating prosecutor from obtaining it.
Neither is there a law requiring the
investigating prosecutor to notify the
parties before securing a copy of the
autopsy report. The autopsy report, which
states the causes of Ronalds death, can
either absolve or condemn the petitioner.
Unfortunately
for
petitioner,
the
investigating prosecutor found that the
autopsy report bolstered complainants
allegations.
Moreover, there is nothing to support
petitioners claim that the investigating
prosecutor was biased in favor of
complainants. There are other pieces of
evidence aside from the autopsy report
upon which the investigating prosecutor
based her finding of probable cause. The
autopsy report is not the sole piece of
evidence against petitioner. The sworn
statement of the other victim, Lorendo,
and the eyewitness account of Jennilyn
Quirong, substantiate the charges against
petitioner. Petitioners failure to deny the
occurrence of the head-banging incident
also
strengthened
complainants
allegations.
Petitioner mistakenly cites Section 3(d) of
Rule
112[22] in
arguing
that
the
investigating prosecutor should not go
beyond the evidence presented by
complainants in resolving the case. This
provision applies if the respondent cannot
be subpoenaed or if subpoenaed fails to

submit her counter-affidavit within the

prescribed period. Such is not the case
here where petitioner filed her counteraffidavit and both parties presented their
respective evidence.
Whether there is probable cause
for the offenses charged against
petitioner
Existence of probable cause
Petitioner challenges the finding of
probable cause against her for the
offenses charged arguing that the headbanging incident was not the proximate
cause of Ronalds death. Petitioner insists
that efficient intervening events caused
Ronalds death.
We do not agree. There is probable cause
for
the
offenses
charged
against
petitioner. Probable cause is the existence
of such facts and circumstances as would
excite the belief in a reasonable mind that
a crime has been committed and the
respondent is probably guilty of the crime.
[23]

In the present case, Ronald, a nine-yearold student, died five days after his
teacher, petitioner in this case, allegedly
banged his head against that of his
classmate Lorendo. There is nothing in the
records showing petitioners specific denial
of the occurrence of such act. Petitioner
simply stated that the head-banging
incident happened but [she] did not
perpetrate it.[24] In effect, petitioner admits
the occurrence of the head-banging
incident but denies committing it.
The alleged intervening events before
Ronald died, namely: (a) the consultation
with a quack doctor, and (b) the three-day
confinement in the East Avenue Medical
Center, are not sufficient to break the
relation of the felony committed and the
resulting injury. Were it not for the headbanging incident, Ronald might not have
needed medical assistance in the first
place.

These circumstances which allegedly

intervened causing Ronalds death are
evidentiary matters which should be
threshed out during the trial. The following
are also matters better left for the trial
court to appreciate: (a) the contents of the
death certificate and autopsy report, (b)
the medical records of Ronalds accident in
November 1997, (c) the perception of
witnesses Jennilyn Quirong and Melanie
Lugales, and (d) the alleged lack of
medical assistance or medical negligence
which caused Ronalds death.
To repeat, what is determined during
preliminary investigation is only probable
cause, not proof beyond reasonable doubt.
[25]
As implied by the words themselves,
probable
cause
is
concerned
with
probability,
not
absolute
or
moral
certainty.[26]
Asserting
her
innocence,
petitioner
continues to invoke the disposition of the
inquest prosecutor finding insufficient
evidence for the charges against her. As
correctly ruled by the DOJ Secretary, the
inquest prosecutor did not dismiss the
case but merely recommended it for
further investigation since it was not
proper for inquest and the evidence was
then insufficient. Moreover, petitioners
active participation in the preliminary
investigation without questioning the
propriety of such proceedings indicates
petitioners
agreement
with
the
recommendation of the inquest prosecutor
for the further investigation of the case.
Charges of Homicide and Child Abuse
Petitioners single act of allegedly banging
the heads of her students had two distinct
victims, namely Ronald and Lorendo.
Therefore,
petitioner
has
to
face
prosecution for cruelty to each victim. For
Ronalds death, petitioner is being charged
with homicide under Article 249 of the
Revised Penal Code[27] in relation to
Section 10(a), Article VI of RA 7610
punishable
by reclusion
perpetua.
[28]
However, this does not mean that
petitioner is being charged with the
distinct offenses of homicide and child
abuse for Ronalds death. On the other

hand, for her cruelty to Lorendo, petitioner

is being charged with violation of Section
10(a), Article VI of RA 7610 punishable
by prision mayor in its minimum period.
Contrary to petitioners contention, Section
10(a), Article VI of RA 7610 is clear. This
provision reads:
(a) Any person who shall commit any
other acts of child abuse, cruelty or
exploitation or be responsible for other
conditions prejudicial to the childs
development including those covered by
Article 59 of Presidential Decree No. 603,
as amended, but not covered by the
Revised Penal Code, as amended, shall
suffer the penalty of prision mayor in its
minimum period.
Ambiguity is a condition of admitting two
or more meanings, of being understood in
more than one way, or of referring to two
or more things at the same time. A statute
is ambiguous if it is susceptible to more
than one interpretation.[29] In the present
case, petitioner fails to show convincingly
the ambiguity in Section 10(a), Article VI
of RA 7610.
Section 3(b), Article VI of RA 7610 defines
child abuse as the maltreatment, whether
habitual or not, of the child which includes

physical abuse and cruelty. Petitioners

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