G.R. No. 169554.October 28, 2009.

*
NIEVA M. MANEBO, petitioner, vs. SPO1 ROEL D. ACOSTA and NUMERIANO SAPIANDANTE, respondents.
Criminal Procedure; Preliminary Investigation; Probable Cause; Probable causes need not to be based
on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief.
Probable cause implies probability of guilt and requires more than bare suspicion but less than
evidence to justify a conviction.Probable cause has been defined as the existence of such facts and
circumstances as would lead a person of ordinary caution and prudence to entertain an honest and
strong suspicion that the person charged is guilty of the crime subject of the investigation. Being
based merely on opinion and reasonable belief, it does not import absolute certainty. Probable cause
need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon
reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but
less than evidence to justify a conviction.
Same; Same; Same; To determine the existence of probable cause, there is a need to conduct a
preliminary investigation. A preliminary investigation constitutes a realistic judicial appraisal of the
merits of a case. Its purpose is to determine whether (a) a crime has been committed; and (b) there is
probable cause to believe that the accused is guilty thereof.To determine the existence of probable
cause, there is a need to conduct a preliminary investigation. A preliminary investigation constitutes a
realistic judicial appraisal of the merits of a case. Its purpose is to determine whether (a) a crime has
been committed; and (b) there is probable cause to believe that the accused is guilty thereof. It is a
means of discovering which person or persons may be reasonably charged with a crime.
Evidence; Credibility of a Witness; Initial reluctance to volunteer information regarding a crime due to
fear of reprisal is common enough that is has been judicially declared as not affecting a witness
credibility; People react differently to emotional stress. There is simply no standard form of behavioral
response that can be expected from anyone when confronted with a strange, startling or frightful
occurrence.The execution of Bagasans affidavit four months after the incident should not be taken
against her, as such reaction is within the bounds of expected human behavior. Notably, the police
report stated that during the conduct of the investigation, Bagasan was shocked after the incident and
could not possibly be interviewed. Initial reluctance to volunteer information regarding a crime due to
fear of reprisal is common enough that it has been judicially declared as not affecting a witness
credibility. Bagasans action revealed a spontaneous and natural reaction of a person who had yet to
fully comprehend a shocking and traumatic event. Besides, the workings of the human mind are
unpredictable. People react differently to emotional stress. There is simply no standard form of
behavioral response that can be expected from anyone when confronted with a strange, startling or
frightful occurrence.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Braulio RG Tansinsin for petitioner.
N.A. Aranzaso & Associates for respondents.
PERALTA,J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1
dated August 31, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 83300.
The antecedents of this case are as follows:
On May 4, 2000, at 6:30 p.m. at Barangay San Mariano, Sta. Rosa, Nueva Ecija, Bernadette M.
Dimatulac, the victim, and Flordeliza V. Bagasan (Bagasan)2 were seated beside each other on a
papag watching television inside the church of the Kaibigan Foundation, Inc. Suddenly, a man later
identified as SPO1 Roel Acosta (respondent Acosta), with an unidentified male companion, both with
short firearms, entered the church premises. Respondent Acosta approached the victim and Bagasan
and, at an arms length distance, respondent Acosta shot the victim several times on the head and
body causing her instantaneous death.
Severino Sardia (Sardia), who was standing in front of his house at Barangay San Mariano, Sta. Rosa,
Nueva Ecija, heard several gunshots and saw two men with short firearms run out of the Kaibigan
Foundation, Inc. Chapel. The two men immediately boarded an owner-type jeep without a plate
number parked along Maharlika Highway and proceeded to the direction going to San Leonardo town.
While the driver of the jeep was in the process of backing up his vehicle, Sardia recognized the driver
as Numeriano Sapiandante (respondent Sapiandante), the Barangay Captain of Barangay Tagumpay,
San Leonardo, Nueva Ecija.
A complaint for murder was filed by Nieva Manebo (Manebo), sister of the victim, against respondents
Acosta and Sapiandante before the Special Action Unit (SAU) of the National Bureau of Investigation
(NBI).
The findings of the SAU recommending the filing of a murder case against respondents and a certain
John Doe was referred to the Office of the Chief State Prosecutor (OCSP), Department of Justice (DOJ),
for preliminary investigation.3 Respondents, in turn, filed directly with the DOJ a counter-charge of
perjury, offering false witness and violation of Presidential Decree (PD) No. 1829 against Manebo,
Bagasan, and Sardia.4

Respondents denied the accusations against them. Respondent Acosta claimed that on May 4, 2000,
he was on a special assignment in San Leonardo, Nueva Ecija, pursuant to a directive issued by Police
Chief Inspector Fernando Galang; that there was no reason for him to kill the victim, as he had no
grudge against her; that Bagasans description of him did not fit his physical attributes; that there was
a substitution of witness, considering that the person beside the victim when she was shot was
identified in the police report as Liza Gragasan and not Flordeliza Bagasan. Respondent Acosta also
presented the affidavits of his witnesses corroborating his claim that he was in San Leonardo, Nueva
Ecija at the time of the shooting incident.
Respondent Sapiandante denied that he was the driver of the get-away vehicle, as he did not know
how to drive nor was he a holder of a drivers license; that Sardia had a grudge against him because of
the dismissal of the case filed by the former against him; and that respondent Acosta never testified
for him in a case, contrary to Sardias claim.
On January 22, 2001, State Prosecutor Melvin J. Abad issued a Joint Resolution,5 approved by the Chief
State Prosecutor, the dispositive portion of which reads:
WHEREFORE, it is respectfully recommended that the foregoing Joint Resolution be approved and the
attached information for murder against respondents SPO1 Roel D. Acosta, Bgy. Captain Numeriano R.
Sapiandante, and a certain John Doe be filed before the proper court and that the counter-charge for
perjury, offering false witness, and violation for P.D. 1829 against Severino S. Sardia, Flordeliza
Bagasan and Nieva M. Manebo be dismissed for lack of merit.6
On the same day, an Information7 for murder was filed with the Regional Trial Court (RTC), Branch 27,
Cabanatuan City against respondents and a certain John Doe, committed as follows:
That on or about May 4, 2000, at around 6:30 p.m. in the Municipality of Sta. Rosa, Nueva Ecija, and
within the jurisdiction of this Honorable Court, the said three (3) accused, two (2) being armed,
conspiring, confederating and acting together, and mutually helping each other, did then and there
willfully, unlawfully and feloniously, with malice, intent to kill and treachery, attack, assault and use
personal violence upon one BERNADETTE M. DIMATULAC, with accused SPO1 Roel D. Acosta suddenly
and unexpectedly firing several shots at her with the use of his firearm and accused John Doe and
Numeriano Sapiandante, acting as back-up and driver, respectively, thereby inflicting upon the said
BERNADETTE M. DIMATULAC mortal wounds which were the direct and immediate cause of her death.
CONTRARY TO LAW.
Respondents filed their motion for reconsideration, which was denied in a Resolution8 dated March
On March 23, 2001, respondents filed their appeal with the DOJ Secretary.
In the meantime, the herein murder case filed in the RTC of Cabanatuan City, Branch 27, was
transferred to the RTC of Manila, Branch 18, and docketed as Criminal Case No. 01-196354. Alias
warrants of arrest9 for respondents were issued on February 28, 2003.
On June 27, 2003, the DOJ Secretary issued his Resolution10 reversing the appealed resolution, the
dispositive portion of which reads:
WHEREFORE, the appealed resolution is hereby REVERSED. The Chief State Prosecutor is directed to
move for the withdrawal of the information filed against respondents and to report the action taken
hereon within ten (10) days from receipt hereof.11
In so ruling, the DOJ said:
Undoubtedly, denial and alibi are inherently weak for they can easily be fabricated and is invariably
received with caution. Truly, alibi cannot prevail over the positive identification of an accused.
Nevertheless, this judicial dictum presupposes the absence of any doubt as to the positive
identification of the accused. In other words, the prosecution is not relieved of the required quantum of
proof simply because the defense invoked is alibi. Where questionable, alibi assumes strength and
significance which is the situation in the present case.
Immediately after receiving a call from a certain Marlon de Guzman regarding the incident, Police Chief
Inspector (PCI) Peter Guibong led the investigation of the case and prepared a report. In the course
thereof, it was gathered that the victim was shot while watching television in the company of one Liza
Gragasan. Still in a state of shock, Gragasan was then not available to provide any information as
regards the incident. Nonetheless, PCI Guibong sent a formal letter to Gragasan to provide information
on the shooting incident. Gragasan never responded to the invitation.
Comes now, instead, a certain Flordeliza Bagasan who executed an affidavit after more than four (4)
months alleging that she was seated beside the victim and witnessed the actual shooting. In turn,
Bagasan gave a description of the assailant which, admittedly, does not fit the physical attributes of
respondent Acosta. Complainant Manebo could only ascribe the variance to the insinuation that
respondent Acosta, short of undergoing plastic surgery, altered his image to avoid being recognized.
This is rather too strenuous to be believed.
Under the circumstances, Bagasans presence at the crime scene when the crime was being
committed is highly suspect. Bagasans delayed testimony coupled with an erroneous description,
casts a thick cloud of doubt on her credibility. Such testimony deserves no consideration at all.

The same is true with the testimony of witness Sardia as regards the alleged participation of
respondent Sapiandante. Sardia was not among those mentioned in the police report. Surprisingly, his
testimony was likewise belatedly executed. Granting that he was already a resident of the barangay
where the incident occurred, no reason was given as to why it took him a long period of time to give a
statement about the killing. Fear could not have been the reason because as early as June 1998, he
filed a complaint for attempted murder against Sapiandante which was later dismissed. As it were, the
victim, involved in several criminal incidents, likewise filed a number of cases rooted from the
complaint of one Alicia Yambot against Sardia as reported by PCI Guibong. Sardias testimony may also
not be given credence with respect to respondent Acosta since he did not witness the actual shooting
of the victim.
All told, the evidence against respondents Acosta and Sapiandante lack the required quantum of proof
sufficient to indict them for the offense charged.12
Pursuant to the resolution of the DOJ Secretary, the prosecutor filed a Motion to Withdraw the
Information.
Petitioner filed an appeal13 with the Office of the President (OP) which, on January 27, 2004 rendered
its Decision14 dismissing the appeal and affirming in toto the resolution of the DOJ Secretary. The OP
found the findings of fact and conclusions of law of the DOJ Secretary to be amply supported by
substantial evidence.
Petitioners motion for reconsideration was denied by the OP in an Order15 dated March 5, 2004.
Aggrieved, petitioner filed a petition for certiorari under Rule 43 with the CA.
Meanwhile, the RTC of Manila, Branch 18, issued an Order16 dated June 22, 2004, which resolved to
suspend the resolution on the motion to withdraw information filed by the prosecutor, considering that
respondents were still at-large and had not been prejudiced by the petition for review filed with the CA
and also in deference to the appellate court. The RTC likewise ruled for the suspension of the
implementation of the warrants of arrest for respondents as moved by the respondents counsel until
after the resolution of the petition filed before the CA.
On August 31, 2005, the CA rendered the assailed Decision dismissing the petition for lack of merit.
The CA said that the OP committed no error in affirming the resolution of the DOJ Secretary; that courts
will not interfere in the conduct of preliminary investigations and leave to the investigating prosecutor
a sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will
establish probable cause for the filing of information against the offender. The CA found that all was
not lost for petitioner, since the denial of her petition did not mean an automatic dismissal of the
information following the resolution of the DOJ Secretary, as the RTC was mandated to independently
evaluate the merits of the case; and it may agree or disagree with the recommendation of the DOJ
Secretary, since reliance on the latter alone would be an abdication of the RTCs duty and jurisdiction
to determine a prima facie case.
Hence, this petition, which raises the following issues:
Whether or not the Honorable Court of Appeals, the Office of the President and the Secretary of Justice
committed grave errors in the appreciation of facts and of laws in recommending the dismissal of the
complaint based solely on the matters, which are best, determined during a full-blown trial.
Whether or not the Secretary of Justice may disregard the provisions of Department Circular No. 70
dated July 3, 2000, which became effective on September 1, 2000, particularly Sections 5 and 6.
Whether or not there is probable cause to charge the respondents for the crime of murder.17
We shall first resolve the second issue, where petitioner claims that the appeal filed by respondents
with the Secretary of Justice should have been denied for their failure to comply with Sections 5 and 6
of Department Circular No. 7018 issued by the Department of Justice on September 1, 2000.
Section5.Contents of the Petition.
xxxx
If an information has been filed in court pursuant to the appealed resolution, a copy of the motion to
defer proceedings filed in court must also accompany the petition.
xxxx
Section6.Effect of failure to comply with requirements.The failure of the petitioner to comply with
any of the foregoing requirements shall constitute sufficient ground for the dismissal of the petition.
Respondents filed their petition for review with the DOJ Secretary on March 23, 2001. On August 20,
2001, they filed with the RTC of Cabanatuan City, Branch 27, a Motion to Suspend Proceedings19
pending a final determination of the merits of their petition by the DOJ Secretary. On August 27, 2001,
respondents filed with the DOJ a document captioned as Compliance20 where they submitted the
motion to suspend proceedings filed in the RTC. Notably, the motion to suspend proceedings was only
filed with the RTC after respondents had already filed their petition for review with the DOJ which
explains why the petition was not accompanied by a motion to suspend proceedings. Notably,

immediately after the motion to suspend proceeding was filed with the RTC, respondents submitted a
copy of such motion with the DOJ. Under the circumstances, we hold that there was substantial
compliance with the requirements under Section 5 of Department Circular No. 70.
The first and third issues refer to the question of whether the CA erred in affirming the ruling of the
Office of the President, which adopted the finding of the DOJ Secretary that there was no probable
cause to indict respondents for murder.
Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate
case is confined to the issue of whether the executive or judicial determination, as the case may be, of
probable cause was done without or in excess of jurisdiction or with abuse of discretion amounting to
want of jurisdiction.21 However, this Court may ultimately resolve the existence or non-existence of
probable cause by examining the records of the preliminary investigation when necessary for the
orderly administration of justice.22 We find that the present case warrants the application of the
exception.
Probable cause has been defined as the existence of such facts and circumstances as would lead a
person of ordinary caution and prudence to entertain an honest and strong suspicion that the person
charged is guilty of the crime subject of the investigation.23 Being based merely on opinion and
reasonable belief, it does not import absolute certainty.24 Probable cause need not be based on clear
and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable
cause implies probability of guilt and requires more than bare suspicion but less than evidence to
justify a conviction.25
To determine the existence of probable cause, there is a need to conduct a preliminary investigation.26
A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case.27 Its
purpose is to determine whether (a) a crime has been committed; and (b) there is probable cause to
believe that the accused is guilty thereof.28 It is a means of discovering which person or persons may
be reasonably charged with a crime.
The conduct of a preliminary investigation is executive in nature.29 As we have said, the Court may
not be compelled to pass upon the correctness of the exercise of the public prosecutors function,
unless there is a showing of grave abuse of discretion or manifest error in his findings.30 Grave abuse
of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of
jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by
reason of passion or personal hostility.31 It must have been so patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.
In this case, we find that the DOJ committed a manifest error in finding no probable cause to charge
respondents with the crime of murder.
In reversing the findings of the prosecutor, the DOJ Secretary found that the police report prepared
after the killing incident stated that the person seated beside the victim, who was watching television
when shot, was Liza Gragasan. However, the DOJ Secretary continued that more than four months
after the incident, a witness appeared in the person of Flordeliza Bagasan who claimed to be seated
beside, and witnessed the actual shooting of, the victim. The DOJ Secretary found Flordelizas
description of respondent Acosta different from the latters physical attributes. He then ruled that
Flordelizas delayed testimony, coupled with her erroneous description of respondent Acosta, cast a
cloud of doubt on her credibility.
The DOJ Secretary also did not give credence to witness Sardias testimony on respondent
Sapiandantes participation in the incident. He found that Sardia was not among those mentioned in
the police report, and that his testimony was likewise belatedly executed without any reason given for
such delay; that fear could not have been Sardias reason, since in June 1998, he had already filed a
complaint for attempted murder against respondent Sapiandante, which was later dismissed; and that
Sardia did not witness the actual shooting of the victim.
We are not persuaded.
While the initial police report stated that the name of the person who was seated beside the victim
when the latter was shot was Liza Gragasan, such report would not conclusively establish that Liza
Gragasan could not have been Flordeliza Bagasan, the witness who executed an affidavit four months
after the incident. Notably, Flordelizas nickname is Liza, and her surname Bagasan sounds similar to
Gragasan. Under the rule of idem sonans, two names are said to be idem sonantes if the attentive
ear finds difficulty in distinguishing them when pronounced.32 The question whether a name sounds
the same as another is not one of spelling but of pronunciation.33 While the surname Bagasan was
incorrectly written as Gragasan, when read, it has a sound similar to the surname Bagasan. Thus, the
presence of Bagasan at the crime scene was established, contrary to the conclusion arrived at by the
DOJ Secretary.
The execution of Bagasans affidavit four months after the incident should not be taken against her, as
such reaction is within the bounds of expected human behavior. Notably, the police report stated that
during the conduct of the investigation, Bagasan was shocked after the incident and could not possibly
be interviewed. Initial reluctance to volunteer information regarding a crime due to fear of reprisal is
common enough that it has been judicially declared as not affecting a witness credibility.34 Bagasans
action revealed a spontaneous and natural reaction of a person who had yet to fully comprehend a
shocking and traumatic event.35 Besides, the workings of the human mind are unpredictable. People

react differently to emotional stress. There is simply no standard form of behavioral response that can
be expected from anyone when confronted with a strange, startling or frightful occurrence.36
Moreover, a witness delay in reporting what she knows about a crime does not render her testimony
false or incredible, for the delay may be explained by the natural reticence of most people to get
involved in a criminal case.37
The DOJ Secretarys finding that the description given by Bagasan did not fit the physical attributes of
respondent Acosta is not persuasive, since Bagasan was able to positively identify respondent Acosta.
She did so when a cartographic sketch of respondent Acosta was shown to her and later when she was
asked to identify him from among the three pictures of men shown to her during the investigation at
the NBI. Notably, there was nothing in the records that showed that Bagasan was impelled by any
improper motive in pointing to respondent Acosta.
The identification made by Bagasan, with respect to respondent Acosta was corroborated by another
witness, Sardia, who saw Acosta with another unidentified male companion rushing out of the chapel
where the killing incident took place. Sardia was familiar with the face of respondent Acosta, since the
latter was a witness in a case of frustrated murder against Sapiandante. Although Sapiandante denied
in his counter-affidavit that respondent Acosta ever became such witness, this allegation should be
proven during the trial of the case. Sardia was also able to positively identify Sapiandante as the driver
of the get-away vehicle.
The DOJ Secretary did not also find the statements given by Sardia as credible, as the latter was not
among those mentioned as a witness in the police report.
We do not agree.
The failure of the police report to mention Sardias name as a witness would not detract from the fact
that he saw respondent Acosta with an unidentified man running away from the chapel and riding the
waiting get-away vehicle driven by Sapiandante. Entries in a police blotter, though regularly done in
the course of the performance of official duty, are not conclusive proof of the truth of such entries and
should not be given undue significance or probative value for they are usually incomplete and
inaccurate.38
The matter of assigning value to the declaration of a witness is best done by the trial court, which can
assess such testimony in the light of the demeanor, conduct and attitude of the witness at the trial
stage.39
Finally, we also do not agree with the DOJ Secretarys finding that since Sardias affidavit was also
belatedly executed, the same is not credible. As we have said, witnesses are usually reluctant to
volunteer information about a criminal case or are unwilling to be involved in or dragged into criminal
investigations due to a variety of valid reasons.40 Fear of reprisal and the natural reluctance of a
witness to get involved in a criminal case are sufficient explanations for a witnessdelay in reporting a
crime to authorities.41 The DOJ rulingthat fear could not have been the reason, because as early as
1998 Sardia had already filed a complaint for attempted murder against Sapiandante, which was
already dismissedis merely speculative.
We need not over-emphasize that in a preliminary investigation, the public prosecutor merely
determines whether there is probable cause or sufficient ground to engender a well-founded belief that
a crime has been committed, and that the respondent is probably guilty thereof and should be held for
trial.42 Considering the foregoing, we find that the CA erred in affirming the DOJs finding of the
absence of probable cause to indict respondents for murder.
WHEREFORE, premises considered, the instant Petition is GRANTED. The Decision dated August 31,
2005 of the Court of Appeals in CA-G.R. SP No. 83300 is REVERSED and SET ASIDE. The Secretary of
Justice is hereby ORDERED to direct the Office of the City Prosecutor of Manila to withdraw the Motion
to Withdraw the Information for Murder already filed in the trial court.
SO ORDERED. Manebo vs. Acosta, 604 SCRA 618, G.R. No. 169554 October 28, 2009
350
SUPREME COURT REPORTS ANNOTATED
Santos vs. Go
G.R. No. 156081. October 19, 2005.*
FERDINAND T. SANTOS, ROBERT JOHN SOBREPEA, and RAFAEL PEREZ DE TAGLE, JR., petitioners, vs.
WILSON GO, respondent.
Taxation; Civil Procedure; Appeals; Rule 43 of the 1997 Rules of Civil Procedure clearly shows that it
governs appeals to the Court of Appeals from decisions and final orders or resolutions of the Court of
Tax Appeals or quasi-judicial agencies in the exercise of their quasi-judicial functions. The Department
of Justice is not among the agencies enumerated in Section 1 of Rule 43.Rule 43 of the 1997 Rules of
Civil Procedure clearly shows that it governs appeals to the Court of Appeals from decisions and final
orders or resolutions of the Court of Tax Appeals or quasi-judicial agencies in the exercise of their
quasi-judicial functions. The Department of Justice is not among the agencies enumerated in Section 1
of Rule 43. Inclusio unius est exclusio alterius. We cannot agree with petitioners submission that a

preliminary investigation is a quasi-judicial proceeding, and that the DOJ is a quasi-judicial agency
exercising a quasijudicial function when it reviews the findings of a public prosecutor regarding the
presence of probable cause.
Appeals; Since the Department of Justice is not a quasi-judicial body and it is not one of those agencies
whose decisions, orders or resolutions are appealable to the Court of Appeals under Rule 43, the
resolution of the Secretary of Justice finding probable cause to indict petitioners for estafa is, therefore,
not appealable to the Court of Appeals via a petition for review under Rule 43.Since the DOJ is not a
quasi-judicial body and it is not one of those agencies whose decisions, orders or resolutions are
appealable to the Court of Appeals under Rule 43, the resolution of the Secretary of Justice finding
probable cause to indict petitioners for estafa is, therefore, not appealable to the Court of Appeals via
a petition for review under Rule 43. Accordingly, the Court of Appeals correctly dismissed petitioners
petition for review.
Same; Prosecutors; The decision whether to dismiss a complaint or not, is dependent upon the sound
discretion of the prosecuting fiscal and, ultimately, that of the Secretary of Justice. Findings of the
Secretary of Justice are not subject to review unless made with grave abuse of discretion.Courts
cannot interfere with the discretion of the public prosecutor in evaluating the offense charged. He may
dismiss the complaint forthwith, if he finds the charge insufficient in form or substance, or without any
ground. Or, he may proceed with the investigation if the complaint in his view is sufficient and in
proper form. The decision whether to dismiss a complaint or not, is dependent upon the sound
discretion of the prosecuting fiscal and, ultimately, that of the Secretary of Justice. Findings of the
Secretary of Justice are not subject to review unless made with grave abuse of discretion. In this case,
petitioners have not shown sufficient nor convincing reason for us to deviate from prevailing
jurisprudence.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Poblador, Bautista & Reyes for petitioner.
Rosalio G. Dela Rosa for respondent.
QUISUMBING, J.:
For our review on certiorari is the Decision1 dated September 2, 2002 of the Court of Appeals in CAG.R. SP No. 67388, as well as its Resolution2 dated November 12, 2002, denying petitioners motion for
reconsideration. The appellate court dismissed the petition for review under Rule 433 of the 1997 Rules
of Civil Procedure for being an erroneous mode of appeal from the Resolution4 of the Secretary of
Justice. The Secretary had modified the Resolution5 of the Office of the City Prosecutor of Pasig City in
I.S. No. PSG 00-04-10205 and directed the latter to file an information for estafa against petitioners.
The petitioners are corporate directors and officers of FilEstate Properties, Inc. (FEPI).
On October 17, 1995, FEPI allegedly entered into a Project Agreement with Manila Southcoast
Development Corporation (MSDC), whereby FEPI undertook to develop several parcels of land in
Nasugbu, Batangas allegedly owned by MSDC. Under the terms of the Agreement, FEPI was to convert
an approximate area of 1,269 hectares into a first-class residential, commercial, resort, leisure, and
recreational complex. The said Project Agreement clothed FEPI with authority to market and sell the
subdivision lots to the public.
Respondent Wilson Go offered to buy Lot 17, Block 38 from FEPI. Lot 17 measured approximately 1,079
square meters and the purchase price agreed upon was P4,304,000. The Contract to Sell signed by the
parties was the standard, printed form prepared by FEPI. Under the terms of said contract of adhesion,
Go agreed to pay a downpayment of P1,291,200 and a last installment of P840,000 on the balance due
on April 7, 1997. In turn, FEPI would execute a final Deed of Sale in favor of Go and deliver to Go the
owners duplicate copy of Transfer Certificate of Title (TCT) upon complete payment of the purchase
price.
Go fully complied with the terms of the Contract. FEPI, however, failed to develop the property. Neither
did it release the TCT to Go. The latter demanded fulfillment of the terms and conditions of their
agreement. FEPI balked. In several letters to its clients, including respondent Go, FEPI explained that
the project was temporarily halted due to some claimants who opposed FEPIs application for exclusion
of the subject properties from the coverage of the Comprehensive Agrarian Reform Law (CARL).
Further, FEPIs hands were tied by a cease and desist order issued by the Department of Agrarian
Reform (DAR). Said order was the subject of several appeals now pending before this Court. FEPI
assured its clients that it had no intention to abandon the project and would resume developing the
properties once the disputes had been settled in its favor.
Go was neither satisfied nor assured by FEPIs statements and he made several demands upon FEPI to
return his payment of the purchase price in full. FEPI failed to heed his demands. Go then filed a
complaint before the Housing and Land Use Regulatory Board (HLURB). He likewise filed a separate
Complaint-Affidavit for estafa under Articles 3166 and 3187 of the Revised Penal Code before the
Office of the City Prosecutor of Pasig City against petitioners as officers of FEPI. The complaint for
estafa averred that the Contract to Sell categorically stated that FEPI was the owner of the property.
However, before the HLURB, FEPI denied ownership of the realty. Go alleged that the petitioners
committed estafa when they offered the subject property for sale since they knew fully well that the

development of the property and issuance of its corresponding title were impossible to accomplish, as
the ownership and title thereto had not yet been acquired and registered under the name of FEPI at
the time of sale. Thus, FEPI had grossly misrepresented itself as owner at the time of the sale of the
subject property to him and when it received from him the full payment, despite being aware that it
was not yet the owner.
Petitioners challenged the jurisdiction of the City Prosecutor of Pasig City to conduct the preliminary
investigation on the ground that the complainant was not from Pasig City, the contract was not
executed nor were the payments made in Pasig City. Besides, countered petitioners, none of the
elements of estafa under Articles 316 and 318 were present. They averred that FEPI was not the owner
of the project but the developer with authority to sell under a joint venture with MSDC, who is the real
owner. They further denied that FEPI ever made any written nor oral representation to Go that it is the
owner, pointing out that Go failed to positively identify who made such misrepresentation to him nor
did Go say where the misrepresentation was made. According to petitioner, there being neither deceit
nor misrepresentation, there could be no damage nor prejudice to respondent, and no probable cause
exists to indict the petitioners. Petitioners likewise insisted that they could not be held criminally liable
for abiding with a cease-and-desist order of the DAR.
In his reply, Go stressed that the City Prosecutor of Pasig City had jurisdiction over the case. He argued
that the Contract to Sell specifically provided that payment be made at FEPIs office at Pasig City and
the demand letters bore the Pasig City address. He averred that FEPI could not disclaim ownership of
the project since the contract described FEPI as owner without mentioning MSDC. Additionally, the acts
executed by FEPI appearing in the contract were the acts of an owner and not a mere developer.
After the preliminary investigation, the City Prosecutor resolved to dismiss the complaint for estafa,
thus:
Wherefore, the case for estafa, under Articles 316 and 318 of the Revised Penal Code, filed against the
respondents Ferdinand Santos, Robert [John] Sobrepea, Federico Campos, Polo Pantaleon and Rafael
Perez de Tagle, Jr. is dismissed for insufficiency of evidence.8
The City Prosecutor found no misrepresentation stating that, (1) the Contract to Sell did not mention
FEPI as the owner of the property; (2) since no Deed of Sale had been executed by the parties, then
petitioners are not yet bound to deliver the certificate of title since under both the Contract to Sell and
Section 259 of Presidential Decree No. 957,10 FEPI was bound to deliver the certificate of title only
upon the execution of a contract of sale; and (3) the City Prosecutor disavowed any jurisdiction since it
is the HLURB, which has exclusive jurisdiction over disputes and controversies involving the sale of lots
in commercial subdivision including claims involving refunds under P.D. No. 1344.11
Go appealed the City Prosecutors Resolution to the Department of Justice (DOJ), which, in turn
reversed the City Prosecutors findings, and held, to wit:
WHEREFORE, the questioned resolution is hereby MODIFIED. The City Prosecutor of Pasig City is
directed to file an information for estafa defined and penalized under Art. 316, par. 1 of the Revised
Penal Code against respondents Ferdinand Santos, Robert [John] Sobrepea, Federico Campos, Polo
Pantaleon and Rafael Perez De Tagle, Jr. and report the action taken within ten (10) days from receipt
hereof.
SO ORDERED.12
The DOJ found that there was a prima facie basis to hold petitioners liable for estafa under Article 316
(1) of the Revised Penal Code, pointing out that the elements of the offense were present as evidenced
by the terms of the Contract to Sell. It ruled that under the Contract, the petitioners sold the property
to Go despite full knowledge that FEPI was not its owner. The DOJ noted that petitioners did not deny
the due execution of the contract and had accepted payments of the purchase price as evidenced by
the receipts. Thus, FEPI was exercising acts of ownership when it conveyed the property to respondent
Go. Acts to convey, sell, encumber or mortgage real property are acts of strict ownership. Furthermore,
nowhere did FEPI mention that it had a joint venture with MSDC, the alleged true owner of the
property. Clearly, petitioners committed acts of misrepresentation when FEPI denied ownership after
the perfection of the contract and the payment of the purchase price. Since a corporation can only act
through its agents or officers, then all the participants in a fraudulent transaction are deemed liable.
Accordingly, an Information for estafa was filed against petitioners and Federico Campos and Polo
Pantaleon before the MTC of Pasig City. However, the arraignment was deferred since Campos and
Pantaleon filed a Motion for Judicial Determination of Probable Cause, which was granted by the trial
court. Meanwhile petitioners herein filed with the Court of Appeals, a petition for review docketed as
CA-G.R. SP No. 67388. Accordingly, the trial court deferred the arraignment of petitioners until the
petition for review was resolved. On September 2, 2002, the appellate court disposed of CA-G.R. SP No.
67388 in this wise:
WHEREFORE, foregoing premises considered, the Petition, HAVING NO MERIT, is hereby DENIED DUE
COURSE AND ORDERED DISMISSED, with cost to Petitioners.
SO ORDERED.13
The appellate court opined that a petition for review pursuant to Rule 43 cannot be availed of as a
mode of appeal from the ruling of the Secretary of Justice because the Rule applies only to agencies or

officers exercising quasi-judicial functions. The decision to file an information or not is an executive and
not a quasi-judicial function.
Herein petitioners seasonably moved for reconsideration, but the motion was likewise denied by the
Court of Appeals.
Hence, this petition based on the following grounds:
(1) THE COURT OF APPEALS ERRED IN RULING THAT RULE 43 OF THE 1997 RULES OF CIVIL
PROCEDURE CANNOT BE AVAILED OF TO APPEAL THE RESOLUTIONS OF THE SECRETARY OF JUSTICE.14
(2) THE DOJ SECRETARY ERRED WHEN IT FOUND PROBABLE CAUSE AND RESOLVED TO FILE AN
INFORMATION FOR ESTAFA UNDER ART. 316, SEC. 1 OF THE REVISED PENAL CODE AGAINST
PETITIONERS, CONSIDERING THAT: (A) Petitioners did not pretend that they, or FEPI, were the owners
of the subject property; (B) FEPI need not have been the owner at the time the Contract to Sell was
furnished to respondent Go; (C) There was no prejudice caused to respondent Go; (D) There is no
personal act or omission constituting a crime ascribed to any of the Petitioners, therefore, there can be
no probable cause against them; and (E) There was no deceit or even intent to deceive.15 To our mind,
the sole issue for resolution is whether a petition for review under Rule 43 is a proper mode of appeal
from a resolution of the Secretary of Justice directing the prosecutor to file an information in a criminal
case. In the course of this determination, we must also consider whether the conduct of preliminary
investigation by the prosecutor is a quasijudicial function.
Petitioners submit that there is jurisprudence to the effect that Rule 43 covers rulings of the Secretary
of Justice since during preliminary investigations, the DOJs decisions are deemed as awards,
judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of
its quasi-judicial functions, and its prosecutorial offices are considered quasi-judicial bodies/officers
performing quasijudicial functions.
Respondent counters that the herein petition is a dilatory tactic and emphasizes that injunction will
not lie to restrain criminal prosecution.
Rule 43 of the 1997 Rules of Civil Procedure clearly shows that it governs appeals to the Court of
Appeals from decisions and final orders or resolutions of the Court of Tax Appeals or quasi-judicial
agencies in the exercise of their quasi-judicial functions. The Department of Justice is not among the
agencies16 enumerated in Section 1 of Rule 43. Inclusio unius est exclusio alterius. We cannot agree
with petitioners submission that a preliminary investigation is a quasi-judicial proceeding, and that the
DOJ is a quasi-judicial agency exercising a quasi-judicial function when it reviews the findings of a
public prosecutor regarding the presence of probable cause.
In Bautista v. Court of Appeals,17 we held that a preliminary investigation is not a quasi-judicial
proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the
accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is
merely inquisitorial, and is often the only means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of
the case on the merits and has no purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting as a quasicourt, for it is the courts,
ultimately, that pass judgment on the accused, not the fiscal.18
Though some cases19 describe the public prosecutors power to conduct a preliminary investigation as
quasi-judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is
an officer of the executive department exercising powers akin to those of a court, and the similarity
ends at this point.20 A quasi-judicial body is as an organ of government other than a court and other
than a legislature which affects the rights of private parties through either adjudication or rulemaking.21 A quasi-judicial agency performs adjudicatory functions such that its awards, determine the
rights of parties, and their decisions have the same effect as judgments of a court. Such is not the case
when a public prosecutor conducts a preliminary investigation to determine probable cause to file an
information against a person charged with a criminal offense, or when the Secretary of Justice is
reviewing the formers order or resolutions.
Since the DOJ is not a quasi-judicial body and it is not one of those agencies whose decisions, orders or
resolutions are appealable to the Court of Appeals under Rule 43, the resolution of the Secretary of
Justice finding probable cause to indict petitioners for estafa is, therefore, not appealable to the Court
of Appeals via a petition for review under Rule 43. Accordingly, the Court of Appeals correctly
dismissed petitioners petition for review.
Notwithstanding that theirs is a petition for review properly under Rule 45, petitioners want us to
reverse the findings of probable cause by the DOJ after their petition for review under Rule 43 from the
court a quo failed. This much we are not inclined to do, for we have no basis to review the DOJs factual
findings and its determination of probable cause.
First, Rule 45 is explicit. This mode of appeal to the Supreme Court covers the judgments, orders or
resolutions of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or any authorized
court and should raise only pure question of law. The Department of Justice is not a court.

Also, in this petition are raised factual matters for our resolution, e.g. the ownership of the subject
property, the existence of deceit committed by petitioners on respondent, and petitioners knowledge
or direct participation in the Contract to Sell. These are factual issues and are outside the scope of a
petition for review on certiorari. The cited questions require evaluation and examination of evidence,
which is the province of a full-blown trial on the merits.
Second, courts cannot interfere with the discretion of the public prosecutor in evaluating the offense
charged. He may dismiss the complaint forthwith, if he finds the charge insufficient in form or
substance, or without any ground. Or, he may proceed with the investigation if the complaint in his
view is sufficient and in proper form.22 The decision whether to dismiss a complaint or not, is
dependent upon the sound discretion of the prosecuting fiscal and, ultimately, that of the Secretary of
Justice.23 Findings of the Secretary of Justice are not subject to review unless made with grave abuse
of discretion.24 In this case, petitioners have not shown sufficient nor convincing reason for us to
deviate from prevailing jurisprudence.
WHEREFORE, the instant petition is DENIED for lack of merit. The Decision and the Resolution of the
Court of Appeals in CA-G.R. SP No. 67388, dated September 2, 2002 and November 12, 2002,
respectively, are AFFIRMED.
Costs against petitioners.
SO ORDERED. Santos vs. Go, 473 SCRA 350, G.R. No. 156081 October 19, 2005
G.R. No. 171188.June 19, 2009.*
PEOPLE OF THE PHILIPPINES, petitioner, vs. JESSIE B. CASTILLO and FELICITO R. MEJIA, respondents.
Criminal Procedure; Probable Cause; Two Kinds of Determination of Probable Cause: Executive and
Judicial.There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have committed the crime as defined
by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority
to determine whether or not a criminal case must be filed in court. Whether or not that function has
been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does
not and may not be compelled to pass upon. The judicial determination of probable cause, on the other
hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for
placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no
probable cause, the judge cannot be forced to issue the arrest warrant.
Same; Same; In our criminal justice system, the public prosecutor exercises a wide latitude of
discretion in determining whether a criminal case should be filed in court, and that courts must respect
the exercise of such discretion when the information filed against the person charged is valid on its
face, and that no manifest error or grave abuse of discretion can be imputed to the public prosecutor.
Corollary to the principle that a judge cannot be compelled to issue a warrant of arrest if he or she
deems that there is no probable cause for doing so, the judge in turn should not override the public
prosecutors determination of probable cause to hold an accused for trial on the ground that the
evidence presented to substantiate the issuance of an arrest warrant was insufficient. It must be
stressed that in our criminal justice system, the public prosecutor exercises a wide latitude of
discretion in determining whether a criminal case should be filed in court, and that courts must respect
the exercise of such discretion when the information filed against the person charged is valid on its
face, and that no manifest error or grave abuse of discretion can be imputed to the public prosecutor.
Same; Same; The Sandiganbayan erred in making an executive determination of probable cause when
it overturned the Ombudsmans own determination.In the instant case, there is no question that both
the original and amended Informations were valid on their face because they complied with Section 6,
Rule 110 of the Rules of Court. Also, a scrutiny of the Resolution dated August 22, 2002 of the
Ombudsman which precipitated the filing of the original Information and the subsequent Memorandum
dated August 4, 2004 recommending the amendment of the Information would likewise show that the
finding of probable cause against the respondents were sufficiently supported by substantial evidence.
As a matter of fact, in the Resolution dated August 22, 2002, the Ombudsman took pains to mention
each element of the crime of violation of Section 3(e) of Rep. Act No. 3019 and then one by one
adequately explained how and why those elements were satisfied. Hence, as the amended Information
was valid on its face and there is no manifest error or arbitrariness on the part of the Ombudsman, the
Sandiganbayan erred in making an executive determination of probable cause when it overturned the
Ombudsmans own determination.
Courts; Sandiganbayan; The Sandiganbayan and all courts for that matter should always remember
the judiciarys standing policy on non-interference in the Office of the Ombudsmans exercise of its
constitutionally mandated powers.The Sandiganbayan and all courts for that matter should always
remember the judiciarys standing policy on non-interference in the Office of the Ombudsmans
exercise of its constitutionally mandated powers. This policy is based not only upon respect for the
investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but
upon practicality as well, considering that otherwise, the functions of the courts will be grievously
hampered by innumerable petitions regarding complaints filed before it, and in much the same way

that the courts would be extremely swamped if they were to be compelled to review the exercise of
discretion on the part of the prosecutors each time they decide to file an information in court or
dismiss a complaint by a private complainant.
PETITION for review on certiorari of the resolutions of the Sandiganbayan.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Benjamin C. Santos and Ray Montri C. Santos Law Offices for respondents.
QUISUMBING,J.:
This petition seeks a review of the Resolution1 dated October 10, 2005 of the Sandiganbayan in
Criminal Case No. 27789, dismissing the criminal complaint against the respondents, and its
Resolution2 dated January 18, 2006 denying petitioners motion for reconsideration.
The facts are as follows:
Complainant Cesar Sarino is one of the registered owners of a piece of land covered by Transfer
Certificate of Title No. T-4502783 of the Registry of Deeds of Cavite, located in front of SM Bacoor,
Cavite. The property is leased to Pepito B. Aquino and Adriano G. Samoy who are in turn subleasing it
to several stallholders.
In September 1999, respondent Felicito R. Mejia, Municipal Building Official of Bacoor, sent to the
stallholders Notices of Violation4 of the National Building Code on the grounds that the structures they
were occupying were erected without building permits and occupied by them without the necessary
certificates of occupancy having been first secured.
On January 17, 2000, Mejias office sent letters5 dated January 10, 2000 to the stallholders informing
them that because of their repeated failure to comply with the National Building Code and its
implementing rules and regulations and the Business Permit and Licensing Office Requirements, their
stalls will be closed down on January 24, 2000.
On February 16, 2000, a task force from the Bacoor Municipal Hall effected the closure of the stalls
through the installation of galvanized iron fences.
Lessees Aquino and Samoy thereafter filed before the Office of the Ombudsman a complaint against
respondent Jessie B. Castillo, in his capacity as Bacoor Municipal Mayor, respondent Mejia and two
other municipal officials for violation of Section 3(e) and (f) of Republic Act No. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, as amended.6 The case was docketed as OMB-1-00-0537.
On October 20, 2000, the Office of the Ombudsman dismissed OMB-1-00-0537, ruling that the
respondent local officials acted in good faith in effecting the closure of the stalls.7
On September 6, 2001, Sarino filed a Complaint8 against respondents Castillo and Mejia before the
Office of the Ombudsman charging them criminally for violation of Section 3(e) and (f) of Rep. Act No.
3019 and Rep. Act No. 6713,9 and administratively for oppression, grave misconduct and for
committing acts contrary to law. According to Sarino, the construction of the galvanized fence in
February 2000 is tantamount to an unlawful taking of their property causing them undue injury and
that despite his verbal and written demands, respondents refused to remove said fence.
Respondents countered that Sarinos complaint was anchored on the same set of facts that had been
the subject of OMB-1-00-0537 that was dismissed by the Ombudsman.
On March 10, 2003, the Ombudsman dismissed the administrative complaint for being moot and
academic due to Castillos re-election as mayor in the May 2001 elections and pursuant to Section 20
of Rep. Act No. 677010 because the act complained of happened more than one year before the
complaint was filed.11
On May 7, 2003, the Office of the Ombudsman, through the Office of the Special Prosecutor, filed an
Information12 against respondents for violation of Section 3(e) of Rep. Act No. 3019 before the
Sandiganbayan. The case was docketed as Criminal Case No. 27789. The Information reads:
That in or about February 2000, and for sometime prior or subsequent thereto, in Bacoor, Cavite,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, JESSIE B.
CASTILLO, a high ranking public officer, being the Municipal Mayor, and FELICITO R. MEJIA, the
Municipal Building Official, of Bacoor, Cavite, as such taking advantage of their positions and
committing the offense in relation to office, conspiring and confederating together, with evident bad
faith and manifest partiality, or gross inexcusable negligence, did then and there willfully, unlawfully
and criminally cause undue injury to one CESAR SARINO by blocking and fencing off the latters
property by installing and erecting a galvanized iron sheet fence on the front portion of the said
property facing the SM Bacoor thereby depriving him of the full use and enjoyment of his property, and
despite repeated demands from the said land owner, the accused, without valid justification, refuse to
remove the said fence to the damage and prejudice of said Cesar Sarino in the amount of Seven
Hundred Ninety Thousand and Nine Hundred Twenty Pesos (Php 790,920.00), more or less,
representing lost income from the rentals of the stalls and parking fees derived therefrom.

CONTRARY TO LAW.13
In a Resolution14 dated August 15, 2003, the Sandiganbayan declared that probable cause exists
against respondents for violation of Section 3(e). Accordingly, it directed the issuance of the
corresponding warrants of arrest and hold departure orders against respondents.
On August 20, 2003, respondents voluntarily surrendered to the Sandiganbayan and posted their
respective bonds for their provisional liberty.15 Respondents moved for the reinvestigation of the case
which the Sandiganbayan gave due course.
After the reinvestigation, the Office of the Special Prosecutor, upon approval of the Ombudsman, filed a
Motion for Leave to Admit Attached Amended Information.16 The respondents then filed a Comment
thereon with Motion for Judicial Determination of Probable Cause.17
In a Resolution18 dated November 3, 2004, the Sandiganbayan admitted the Amended Information
which reads:
That in or about February 2000, and for sometime prior or subsequent thereto, in Bacoor, Cavite,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, JESSIE B.
CASTILLO, a high ranking public officer, being the Municipal Mayor, and FELICITO R. MEJIA, the
Municipal Building Official, of Bacoor, Cavite, as such taking advantage of their positions and
committing the offense in relation to office, conspiring and confederating together, with evident bad
faith and manifest partiality, or gross inexcusable negligence, did then and there wilfully, unlawfully
and criminally cause undue injury to CESAR N. SARINO, EVELYN S. MANIQUIS, FLORA JANET S. GARCIA,
CLAUDETTE N. SARINO, STEPHEN N. SARINO and PRISCILLA N. SARINO, by blocking and fencing off
their property described in Transfer Certificate of Title No. T-450278, which was then being leased by
PEPITO B. AQUINO and ADRIANO G. SAMOY for TWELVE THOUSAND PESOS (P12,000.00) a month, by
installing and erecting a galvanized iron fence on the front portion of the said property facing the SM
Bacoor, thereby depriving them of the full use and enjoyment of their property and effectively
decreasing its value for commercial purposes, and despite lawful demand from CESAR N. SARINO, the
accused, without valid justification, refuse to remove the said fence to the undue damage and
prejudice of said landowners in the amount of SEVEN HUNDRED NINETY THOUSAND and NINE
HUNDRED TWENTY PESOS (Php 790,920.00), more or less, representing (1) lost rentals of said
property, (2) unpaid compensation for the portion of the property on which the fence was installed,
and (3) the decrease in value of the property for commercial purposes.
CONTRARY TO LAW.19
In a Resolution20 dated May 9, 2005, the Sandiganbayan denied the respondents Motion for Judicial
Determination of Probable Cause.
On October 10, 2005, the Sandiganbayan, upon motion for reconsideration filed by respondents,
reversed its May 9, 2005 Resolution and dismissed the case. The Sandiganbayan likewise set aside the
arrest warrants it previously issued. It held that the instant criminal case is a mere rehash of the
previously dismissed criminal case filed by complainants lessees against respondents. It also ruled
that there was no evident bad faith, manifest partiality or inexcusable negligence that can be
attributed to respondents. Neither did complainants claim of undue injury have any leg to stand on.
The Office of the Special Prosecutor filed a motion for reconsideration, but it was denied on January 18,
2006. Hence this petition, with the following issues:
I.
[WHETHER OR NOT] THE HONORABLE SANDIGANBAYAN GRAVELY ERRED AND DECIDED A QUESTION
OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN CONDUCTING A
SECOND JUDICIAL DETERMINATION OF PROBABLE CAUSE IN CRIMINAL CASE NO. 27789, LONG AFTER IT
ISSUED THE WARRANTS OF ARREST AGAINST THE RESPONDENTS.
II.
[WHETHER OR NOT] THE HONORABLE SANDIGANBAYAN GRAVELY ERRED AND DECIDED A QUESTION
OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW AND JURISPRUDENCE WHEN IT CONSIDERED
EVIDENTIARY MATTERS SUPPORTING RESPONDENTS DEFENSE WHEN IT CONDUCTED THE SECOND
JUDICIAL DETERMINATION OF PROBABLE CAUSE.
III.
[WHETHER OR NOT] THE HONORABLE SANDIGANBAYAN GRAVELY ERRED AND DECIDED A QUESTION
OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW AND JURISPRUDENCE WHEN IT RULED THAT
THE RESPONDENTS ACTED IN GOOD FAITH WHEN IN TRUTH RESPONDENTS HAD NO LEGAL BASIS IN
FENCING OFF THE PRIVATE PROPERTY OF THE COMPLAINANT AND HIS SIBLINGS.
IV.
[WHETHER OR NOT] THE HONORABLE SANDIGANBAYAN GRAVELY ERRED AND DECIDED A QUESTION
OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW AND JURISPRUDENCE WHEN IT IGNORED AND
DID NOT DISCUSS IN ITS RESOLUTIONS OF OCTOBER 10, 2005 AND JANUARY 18, 2006 THE ISSUE
RAISED BY THE PROSECUTION THAT COMPLAINANT AND HIS SIBLINGS SUFFERED UNDUE INJURY
BECAUSE, AMONG OTHERS, A PORTION OF THEIR PROPERTY WAS EFFECTIVELY TAKEN BY THE

RESPONDENTS WITHOUT JUST COMPENSATION AND THE VALUE OF THE SUBJECT PROPERTY FOR
PURPOSES OF COMMERCE WAS GREATLY REDUCED IN VIEW OF THE HIGH GALVANIZED IRON FENCE
THAT COVERED AND HID THE PROPERTY FROM THE HIGHWAY AND THE PUBLIC.21
The foregoing issues simply boil down to whether the Sandiganbayan erred in overturning the
Ombudsmans determination of probable cause resulting in the dismissal of the case against
respondents.
Petitioner contends that after the Sandiganbayan issued the arrest warrants against respondents, the
responsibility of making a new determination of probable cause shifted back to the Ombudsman as
prosecutor when respondents moved for the reinvestigation of the case and such motion was granted
by the court. The Ombudsman must then decide whether respondents shall continue to be held for
trial in light of any additional evidence presented during reinvestigation. This responsibility, petitioner
submits, belongs to the Ombudsman alone and the court is bereft of authority to overturn the formers
findings as the judicial determination of probable cause is only for the purpose of determining whether
the arrest warrant should be issued. Petitioner further argues that there are only two instances when
the court can intervene in the Ombudsmans actionfirst, when the Ombudsman acted with grave
abuse of discretion; and second, when the prosecution makes substantial amendments to the
informationboth of which are wanting in the instant case.
Respondents counter that the amendments made to the information are substantial in nature and not
merely formal as they pertain to the inclusion of additional injured parties and specification of the
amount of damages. And even assuming the amendments were merely formal, the Sandiganbayan
was correct in exercising its judicial prerogative when it determined for itself the existence of probable
cause considering the inconsistency of the positions taken by the Ombudsman in OMB-1-00-0537 and
the instant case.
After seriously considering the submission of the parties, we are in agreement that the petition is
meritorious.
There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have committed the crime as defined
by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority
to determine whether or not a criminal case must be filed in court.22 Whether or not that function has
been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does
not and may not be compelled to pass upon.23
The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain
whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that
based on the evidence submitted, there is necessity for placing the accused under custody in order not
to frustrate the ends of justice.24 If the judge finds no probable cause, the judge cannot be forced to
issue the arrest warrant.25
Corollary to the principle that a judge cannot be compelled to issue a warrant of arrest if he or she
deems that there is no probable cause for doing so, the judge in turn should not override the public
prosecutors determination of probable cause to hold an accused for trial on the ground that the
evidence presented to substantiate the issuance of an arrest warrant was insufficient. It must be
stressed that in our criminal justice system, the public prosecutor exercises a wide latitude of
discretion in determining whether a criminal case should be filed in court, and that courts must respect
the exercise of such discretion when the information filed against the person charged is valid on its
face, and that no manifest error or grave abuse of discretion can be imputed to the public
prosecutor.26
Thus, absent a finding that an information is invalid on its face or that the prosecutor committed
manifest error or grave abuse of discretion, a judges determination of probable cause is limited only to
the judicial kind or for the purpose of deciding whether the arrest warrants should be issued against
the accused.
In the instant case, there is no question that both the original27 and amended28 Informations were
valid on their face because they complied with Section 6,29 Rule 110 of the Rules of Court. Also, a
scrutiny of the Resolution30 dated August 22, 2002 of the Ombudsman which precipitated the filing of
the original Information and the subsequent Memorandum dated August 4, 2004 recommending the
amendment of the Information would likewise show that the finding of probable cause against the
respondents were sufficiently supported by substantial evidence. As a matter of fact, in the Resolution
dated August 22, 2002, the Ombudsman took pains to mention each element of the crime of violation
of Section 3(e) of Rep. Act No. 3019 and then one by one adequately explained how and why those
elements were satisfied. Hence, as the amended Information was valid on its face and there is no
manifest error or arbitrariness on the part of the Ombudsman, the Sandiganbayan erred in making an
executive determination of probable cause when it overturned the Ombudsmans own determination.
And this is true even if the Sandiganbayan was no longer satisfied with the evidence presented to
sustain the effectivity of the arrest warrants previously issued for the original Information. The
Sandiganbayan could have just revoked the previously issued arrest warrants and required the
Ombudsman to submit additional evidence for the purpose of issuing the arrest warrants based on the
amended Information.

Moreover, it was clearly premature on the part of the Sandiganbayan to make a determinative finding
prior to the parties presentation of their respective evidence that there was no bad faith and manifest
partiality on the respondents part and undue injury on the part of the complainant. In Go v. Fifth
Division, Sandiganbayan,31 we held that it is well established that the presence or absence of the
elements of the crime is evidentiary in nature and is a matter of defense that may be best passed
upon after a full-blown trial on the merits.32 Also, it would be unfair to expect the prosecution to
present all the evidence needed to secure the conviction of the accused upon the filing of the
information against the latter. The reason is found in the nature and objective of a preliminary
investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable
doubt of the guilt of the person charged; they merely determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and that respondent is probably
guilty thereof, and should be held for trial.33
The Sandiganbayan and all courts for that matter
should always remember the judiciarys standing policy on non-interference in the Office of the
Ombudsmans exercise of its constitutionally mandated powers. This policy is based not only upon
respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well, considering that otherwise, the functions of the courts will
be grievously hampered by innumerable petitions regarding complaints filed before it, and in much the
same way that the courts would be extremely swamped if they were to be compelled to review the
exercise of discretion on the part of the prosecutors each time they decide to file an information in
court or dismiss a complaint by a private complainant.34
WHEREFORE, the petition is GRANTED. The Sandiganbayans challenged Resolutions dated October 10,
2005 and January 18, 2006 are REVERSED and SET ASIDE. The Information against the respondents is
hereby REINSTATED. Let the records of this case be REMANDED to the Sandiganbayan for further
proceedings.
SO ORDERED. People vs. Castillo, 590 SCRA 95, G.R. No. 171188 June 19, 2009
652
SUPREME COURT REPORTS ANNOTATED
Webb vs. De Leon
G.R. No. 121234. August 23, 1995.*
HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional
Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA,
JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU
OF INVESTIGATION and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial
Court of Paraaque, Branch 274, respondents,
LAURO VIZCONDE, Intervenor.
MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of
the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA,
JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU
OF INVESTIGATION, AND HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial
Court of Paraaque, Branch 274, respondents.
G.R. No. 121297. August 23, 1995.*
ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional
Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA,
JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU
OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial
Court of Paraaque, Branch 274, respondents.
Criminal Procedure; Preliminary Investigation; Preliminary investigation should determine whether
there is sufficient ground to engender a well-grounded belief that a crime cognizable by the RTC has
been committed and that respondent is probably guilty thereof, and should be held for trial.We start
with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a
preliminary investigation should determine x x x x whether there is a sufficient ground to engender a
well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that
the respondent is probably guilty thereof, and should be held for trial.
Same; Same; Probable Cause; If the investigating fiscal finds cause to hold the respondent for trial, he
shall prepare the resolution and corresponding information.Section 4 of Rule 112 then directs that if
the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and
corresponding information. He shall certify under oath that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his witnesses, that there is
reasonable ground to believe that a crime has been committed and that the accused is probably guilty
thereof x x x.

Same; Same; Same; In determining probable cause, facts and circumstances are weighed without
resorting to technical rules of evidence, but rather based on common sense which all reasonable men
have.The need to find probable cause is dictated by the Bill of Rights which protects the right of the
people to be secure in their persons x x x against unreasonable searches and seizures of whatever
nature x x x. An arrest without a probable cause is an unreasonable seizure of a person, and violates
the privacy of persons which ought not to be intruded by the State. Probable cause to warrant arrest is
not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are
facts and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested. Other jurisdictions utilize the term
man of reasonable caution or the term ordinarily prudent and cautious man. The terms are legally
synonymous and their reference is not to a person with training in the law such as a prosecutor or a
judge but to the average man on the street. It ought to be emphasized that in determining probable
cause, the average man weighs facts and circumstances without resorting to the calibrations of our
technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common
sense of which all reasonable men have an abundance.
Same; Same; Same; A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspects.Given these
conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely
abuse its discretion when it found probable cause against the petitioners. A finding of probable cause
needs only to rest on evidence showing that more likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence
establishing absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause
demands more than bare suspicion, it requires less than evidence which would justify x x x
conviction. A finding of probable cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.
Same; Same; Same; Probable cause merely implies probability of guilt and should be determined in a
summary manner.Considering the low quantum and quality of evidence needed to support a finding
of probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in refusing to
call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator and the investigator alone. If the
evidence on hand already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a
summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront and cross-examine his
accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough
evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.
Constitutional Law; Searches and Seizure; Section 2, Article III of the Constitution deals with the
requirements of probable cause both with respect to issuance of warrants of arrest and search
warrants.The issuance of a warrant of arrest interferes with individual liberty and is regulated by no
less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce and particularly describing the place to be searched and the persons or things to be seized.
The aforequoted provision deals with the requirements of probable cause both with respect to issuance
of warrants of arrest and search warrants.
Same; Same; The items sought should be in fact seizable by virtue of being connected with criminal
activity and the items will be found in the place to be searched.It is generally assumed that the
same quantum of evidence is required whether one is concerned with probable cause to arrest or
probable cause to search. But each requires a showing of probabilities as to somewhat different facts
and circumstances, and thus one can exist without the other. In search cases, two conclusions must be
supported by substantial evidence: that the items sought are in fact seizable by virtue of being
connected with criminal activity, and that the items will be found in the place to be searched. It is not
also necessary that a particular person be implicated. By comparison, in arrest cases there must be
probable cause that a crime has been committed and that the person to be arrested committed it,
which of course can exist without any showing that evidence of the crime will be found at premises
under that persons control. Worthy to note, our Rules of Court do not provide for a similar procedure
to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of
arrest, section 6 of Rule 112 simply provides that upon filing of an information, the Regional Trial
Court may issue a warrant for the arrest of the accused.
Criminal Procedure; Arrests; Searching examination of witnesses is not necessary before issuing
warrants of arrest against them and the issuance of an order of arrest is not required prior to issuance
of a warrant of arrest.Clearly then, the Constitution, the Rules of Court, and our case law repudiate
the submission of petitioners that respondent judges should have conducted searching examination
of witnesses before issuing warrants of arrest against them. They also reject petitioners contention
that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule
requiring the issuance of an Order of Arrest prior to a warrant of arrest.

Same; Same; Before issuing warrants of arrest, judges merely determine personally the probability, not
the certainty of guilt of an accused.In the case at bar, the DOJ Panel submitted to the trial court its
26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal
and Lolita Birrer as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital
and analysis of the parties evidence made in the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing
warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an
accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable
cause. They just personally review the initial determination of the prosecutor finding a probable cause
to see if it is supported by substantial evidence. The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it took the respondent judges a few
hours to review and affirm the probable cause determination of the DOJ Panel does not mean they
made no personal evaluation of the evidence attached to the records of the case.
Same; Same; The various types of evidence extant in the records of the case provide substantial basis
for a finding of probable cause against petitioner.Petitioners reliance on the case of Allado vs.
Diokno is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the
existence of probable cause. Not even the corpus delicti of the crime was established by the evidence
of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the
necessity for the trial judge to make a further personal examination of the complainant and his
witnesses to reach a correct assessment of the existence or non-existence of probable cause before
issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual
setting. As priorly discussed, the various types of evidence extant in the records of the case provide
substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime
is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense
of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore
unnecessary for the respondent judges to take the further step of examining ex parte the complainant
and their witnesses with searching questions.
Same; Same; An appeal/motion for reinvestigation from a resolution finding probable cause shall not
hold the filing of the information in court.An appeal/motion for reinvestigation from a resolution
finding probable cause, however, shall not hold the filing of the information in court. SECTION 2. When
to Appeal.The appeal must be filed within a period of fifteen (15) days from receipt of the questioned
resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for
reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the
time the resolution denying the motion shall have been received by the movant or his counsel.
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the
consummation of the preliminary investigation even if the accused can still exercise the right to seek a
review of the prosecutors recommendation with the Secretary of Justice.
Same; Trial; The power of the court to discharge a state witness under Section 9, Rule 119 is a part of
the exercise of jurisdiction but is not a recognition of an inherent judicial function.We thus hold that it
is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of
Justice the power to determine who can qualify as a witness in the program and who shall be granted
immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power to
choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court
is given the power to discharge a state witness only because it has already acquired jurisdiction over
the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not
a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted
to be beyond change by legislation designed to improve the administration of our justice system.
Same; R.A. 6981, Witness Protection Program; For a more effective administration of criminal justice,
there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits
to ensure their appearance in investigative bodies/courts.R.A. No. 6981 is one of the much sought
penal reform laws to help government in its uphill fight against crime, one certain cause of which is the
reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz:
Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective
administration of criminal justice, there was a necessity to pass a law protecting witnesses and
granting them certain rights and benefits to ensure their appearance in investigative bodies/courts.
Petitioner Webbs challenge to the validity of R.A. No. 6981 cannot therefore succeed.
Same; Preliminary Investigation; Failure to provide discovery procedure during preliminary
investigation does not negate its use by a person under investigation when indispensable to protect
his constitutional right to life, liberty and property.This failure to provide discovery procedure during
preliminary investigation does not, however, negate its use by a person under investigation when
indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is
not too early a stage to guard against any significant erosion of the constitutional right to due process
of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the
probability that the suspect committed a crime. We hold that the finding of a probable cause by itself
subjects the suspects life, liberty and property to real risk of loss or diminution. In the case at bar, the
risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with
homicide, a non-bailable offense when the evidence of guilt is strong.

Same; Same; A preliminary investigation should be scrupulously conducted so that the constitutional
right to liberty of a potential accused can be protected from any material damage.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 in Rolito 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.
Same; Same; Due Process; Right to compel the disclosure of exculpatory facts during preliminary
investigation is rooted in the constitutional protection of due process which is operational even at that
stage.We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI,
the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their
preliminary investigation considering their exculpatory character, and hence, unquestionable
materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of
due process which we rule to be operational even during the preliminary investigation of a potential
accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary
investigation the filing of a sworn complaint which shall x x x state the known address of the
respondent and be accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents x x x.
Constitutional Law; Right To Fair Trial; Prejudicial Publicity; To warrant a finding of prejudicial publicity
there must be an allegation and proof that the judges have been unduly influenced, not simply that
might be, by the barrage of publicity.We recognize that pervasive and prejudicial publicity under
certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino,
et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be, by
the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone
and content of the publicity that attended the investigation of petitioners fatally infected the fairness
and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on
the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be
sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors.
Their long experience in criminal investigation is a factor to consider in determining whether they can
easily be blinded by the klieg lights of publicity.
FRANCISCO, J., Concurring:
Criminal Procedure; Preliminary Investigation; Courts should give defer, in the absence of a clear
showing of arbitrariness, to the finding and determination of probable cause by prosecutors in
preliminary investigations.Preliminary investigation, unlike trial, is summary in nature, the purpose of
which is merely to determine whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is
not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a
clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by
prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by
innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or
prosecuting attorneys if each time they decide to file an information in court their finding can be
immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA
725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a
dent in the efficient and effective administration of justice.
Same; Same; The validity and merits of a partys defense or accusation as well as the admissibility or
inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the
preliminary investigation level.Petitioners characterize the evidence against them to be inherently
weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is
best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary
investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth
(Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a partys defense or accusation
as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during
the trial stage than in the preliminary investigation level. The ineluctable media attention
notwithstanding, truth as to their innocence or guilt is still best determined at the trial.
Same; Same; Warrant of Arrest; The judge does not have to personally examine the complainant and
his witnesses in order to issue a warrant of arrest as he can rely on the certification of the
prosecutors.With respect to petitioners contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say
that the judge does not have to personally examine the complainant and his witnesses in order to
issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398
[1988]). There is ample evidence and sufficient basis on record that support the trial courts issuance
of the warrant as petitioners themselves do not contend that the prosecutors certification was
unaccompanied by the records of the preliminary investigation to take their case outside the ambit of
the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or
exhaustive the judges examination of the certification, report and findings of the preliminary
investigation and its annexes should be as this depends not only upon the sound exercise of the

judges discretion in personally determining the existence of probable cause, but also from the
circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge,
being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131,
Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be
said to be whimsical or arbitrary.
PETITIONS for certiorari, prohibition and mandamus with temporary restraining order and preliminary
injunction.
The facts are stated in the opinion of the Court.
R.A.V. Saguisag and Robles, Ricafrente & Aguirre Law Firm for Hubert Webb.
Florante A. Bautista, Manuel M. Sunga and Rene B. Gorospe for Michael Gatchalian.
Perlas, Mendoza, Chan & Garciano for Antonio Lejano.
Renato L. Cayetano and Ma. Larrie Alinsunurin for Lauro Vizconde (complainant-intervenor).
PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and
mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and
set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and
Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any
proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica
Alfaro as one of the accused therein.1
From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation
(NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael
Gatchalian, Antonio J. Lejano and six (6) other persons,2 with the crime of Rape with Homicide.
Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State
Prosecutor Jovencio R. Zuo to conduct the preliminary investigation3 of those charged with the rape
and killing on June 30, 1991 of Carmela N. Vizconde,4 her mother Estrellita Nicolas-Vizconde,5 and her
sister Anne Marie Jennifer6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro
Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated
May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of
the crime;7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the
persons of Nerissa E. Rosales and Mila S. Gaviola;8 (3) the sworn-statement of Carlos J. Cristobal who
alleged that on March 9, 1991 he was York and who expressed doubt on whether petitioner Webb was
his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo
Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar;9 (5)
the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn
statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy
reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds,
Estrellita twelve (12) and Jennifer nineteen (19).10 The genital examination of Carmela confirmed the
presence of spermatozoa.11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production
and Examination of Evidence and Documents for the NBI to produce the following:
(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of
Hubert Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September
2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than
the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent
Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective
positions and duties;
(j) Statements made by other persons in connection with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It
alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner

Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose,
among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its
proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a
subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together
with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the
copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar
as he went to the United States on March 1, 1991 and returned to the Philippines on October 27,
1992.12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina
Roque, Sonia Rodriguez, Edgardo Ventura and Pamela Francisco.13 To further support his defense, he
submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United
States on said dates14 and that he was issued by the State of California Drivers License No. A8818707
on June 14, 1991.15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert
Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his
arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808.
The other respondentsHospicio Pyke Fernandez, Michael Gatchalian, Antonio Tony Boy Lejano,
Peter Estrada, Miguel
Rodriguez and Gerardo Biongsubmitted sworn statements, responses, and a motion to dismiss
denying their complicity in the rape-killing of the Vizcondes.16 Only the respondents Joey Filart and
Artemio Dong Ventura failed to file their counter-affidavits though they were served with subpoena in
their last known address.17 In his sworn statement, petitioner Gatchalian alleged that from 11 oclock
in the evening of June 29, 1991 until 3 oclock in the morning of the following day, he was at the
residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video
tapes. He claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution finding probable cause to hold
respondents for trial and recommending that an Information for rape with homicide be filed against
petitioners and their co-respondents.18 On the same date, it filed the corresponding Information19
against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was
docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo
V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who
issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily
inhibited himself from the case to avoid any suspicion about his impartiality considering his
employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274,
presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their
co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at
Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves
up to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely
abused their discretion
when they failed to conduct a preliminary examination before issuing warrants of arrest against them;
(2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to
charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional
right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded
into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995
sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged
material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail
her credibility for her misdescription of petitioner Webbs hair as semi-blonde. They also criticize the
procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged
incredulities and inconsistencies in the sworn statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112
provides that a preliminary investigation should determine x x x x whether there is a sufficient ground
to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be held for trial. Section 3
of the same Rule outlines the procedure in conducting a preliminary investigation, thus:
SEC. 3. Procedure.Except as provided for in Section 7 hereof, no complaint or information for an
offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having
been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of
the complainant and his witnesses as well as other supporting documents, in such number of copies as
there are respondents, plus two (2) copies for the official file.
The said affidavits shall be sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify

that he personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent,
attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10)
days from receipt thereof, the respondent shall submit counter-affidavits and other supporting
documents. He shall have the right to examine all other evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be
sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by
him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall base his resolution on the evidence
presented by the complainant.
(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to
propound clarificatory questions to the parties or their witnesses, during which the parties shall be
afforded an opportunity to be present but without the right to examine or cross-examine. If the parties
so desire, they may submit questions to the investigating officer which the latter may propound to the
parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve
the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer
shall determine whether or not there is sufficient ground to hold the respondent for trial.
Section 4 of Rule 112 then directs that if the investigating fiscal finds cause to hold the respondent for
trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he,
or as shown by the record, an authorized officer, has personally examined the complainant and his
witnesses, that there is reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof x x x.
The need to find probable cause is dictated by the Bill of Rights which protects the right of the people
to be secure in their persons x x x against unreasonable searches and seizures of whatever nature x x
x.20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the
privacy of persons which ought not to be intruded by the State.21 Probable cause to warrant arrest is
not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are
facts and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested.22 Other jurisdictions utilize the term
man of reasonable caution23 or the term ordinarily prudent and cautious man.24 The terms are legally
synonymous and their reference is not to a person with training in the law such as a prosecutor or a
judge but to the average man on the street.25 It ought to be emphasized that in determining probable
cause, the average man weighs facts and circumstances without resorting to the calibrations of our
technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common
sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its
discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of
Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webbs hair as semi-blond
and (b) she committed material inconsistencies in her two (2) sworn statements, thus:26
x x x
To illustrate, the following are some examples of inconsistencies in the two sworn statements of
Alfaro:
On whether Alfaro knew Carmela before the incident in question
First Affidavit: She had NOT met Carmela before June 29, 1991.
Second Affidavit: I met her in a party sometime in February, 1991.
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that night. She just said on the following day
I read in the newspaper that there were three persons who were killed x x x
Second Affidavit: I peeped through the first door on the left. I saw two bodies on top of the bed,
bloodied, and in the floor, I saw Hubert on top of Carmela. On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb with bare buttocks, on top of Carmela and pumping, her
mouth gagged and she was moaning and I saw tears on her eyes.
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: By jumping over the fence, which was only a little more than a meter high.

Second Affidavit: They entered the gate which was already open.
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: I proceeded to the iron grill gate leading to the dirty kitchen.
In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not
erode the credibility of Alfaro. We quote the pertinent ruling, viz:27
x x x.
As regards the admissibility of Alfaros statements, granting for purposes of argument merely that she
is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to
show the probability of the co-conspirators participation in the commission of the crime (see People
vs. Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of
prior agreement to commit the crime. Indeed, only rarely would such a prior agreement be
demonstrable since, in the nature of things, criminal undertakings are only rarely documented by
agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before,
during and after the commission of the crime, showing that the several accused had acted in concert
or in unison with each other, evincing a common purpose or design. (Angelo vs. Court of Appeals, 210
SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In
Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the
slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit
which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness
testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness.
On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that
the instant complaint should not be decided within the month to give time to the NBI to coordinate
with the FBI on the latters inquiry into the whereabouts of Hubert Webb x x x and to check on our U.S.based witnesses.
In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in
uno, falsus in omnibus arising from the inconsistencies of Alfaros statements, among others. This is
untenable. As held in Angelo:
There is no rule of law which prohibits a court from crediting part of the testimony of a witness as
worthy of belief and from simultaneously rejecting other parts which the court may find incredible or
dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law
which is universally applicable. It is not a legal presumption either. It is merely a latinism describing
the conclusion reached by a court in a particular case after ascribing to the evidence such weight or
lack of weight that the court deemed proper.
In the case before us, complainant reasoned out that Alfaro was then having reservations when she
first executed the first statement and held back vital information due to her natural reaction of
mistrust. This being so, the panel believes that the inconsistencies in Alfaros two sworn statements
have been sufficiently explained especially so where there is no showing that the inconsistencies were
deliberately made to distort the truth. Consequently, the probative value of Alfaros testimony
deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete
because they are usually executed when the affiants state of mind does not give her sufficient and fair
opportunity to comprehend the import of her statement and to narrate in full the incidents which
transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case
at bar, there is no dispute that a crime has been committed and what is clear before us is that the
totality of the evidence submitted by the complainant indicate a prima facie case that respondents
conspired in the perpetration of the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel28
and consists of six (6) pages, in single space reciting in rich details how the crime was planned and
then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn
statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a
passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel
assayed their statements as follows:29
x x x.
According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between
7:00 oclock and 8:00 oclock in the evening, Hubert was at home inside his room with two male
visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring
them three glasses of juice. It was the last time she saw Hubert and was later told by then
Congressman Webb that Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry
woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she
woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the

Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered
Huberts room and saw Hubert, who was only wearing his pants, already awake and smoking while he
was sitting on his bed. She picked up Huberts scattered clothes and brought them together with the
clothes of the other members of the family to the laundry area. After taking her breakfast, she began
washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh
bloodstains in his shirt. After she finished the laundry, she went to the servants quarters. But feeling
uneasy, she decided to go up to the stockroom near Huberts room to see what he was doing. In the
said stockroom, there is a small door going to Huberts room and in that door there is a small opening
where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite
irritated, uneasy, and walked to and from inside his room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at
around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was
the last time that she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal, alleged that on March 9, 1991, at about 10:00 in the morning, he
was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines
Flight No. 808 at 2:00 in the afternoon for New York. At the airports lobby, he saw then Congressman
Freddie Webb with a male companion. He greeted him and Webb answered: Mabuti naman, at ito,
ihahatid ko ang anak ko papuntang Florida. He knew Freddie Webb because he often watched him
then in a television show Chicks to Chicks. He observed that the man whom Freddie Webb referred to
as his son, was of the same height as Freddie. The son referred to has fair complexion with no
distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he
and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son
was seated at the front portion of the economy class. He never noticed Freddie Webbs son upon their
arrival in San Francisco. He claims that while watching the television program DONG PUNO LIVE
lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described
Hubert as moreno and small built, with a height of five feet and seven inches tall, and who was the
one who left for United States on March 9, 1991, he nurtured doubts because such description does
not fit the physical traits of the son of Freddie, who left with him for United States on the same flight
and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three
(3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started
in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at
around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at
the back of the Paraaque Municipal Hall.
At about 2:30 in the early morning of June 30, 1991, the radio operator of the Paraaque police told
Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him
over and after somebody won the game, she followed Biong at the radio room where she overheard
him uttering, Ano?, Saan?, Mahirap yan, Paano, o sige, aantayin kita, O ano?,dilaw na taxi, o sige.
When he put the phone down, Biong told her, Mayroon lang akong rerespondehan, ikaw muna ang
maupo and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later,
a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the
canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat
beside the driver and then, they left. She was not able to recognize the male passenger because the
window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he
arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which
he threw at the trash can. She asked him why he threw his handkerchief and he answered, Hmp . . .
amoy tae. She inquired what happened in BF Homes and he replied, Putang inang mga batang
iyon,pinahirapan nila ako.
Biong later invited her for breakfast, but they first went to his office where she observed him doing
something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another
policeman of Paraaque, arrived and said, Oy Biong, may tatlong patay sa BF, imbestigahan mo to
which Biong answered, Oo susunod na ako. Biong went to the office of Capt. Don Bartolome who
offered to accompany him and with whom she asked permission to go with them. Before they
proceeded to the place where the killings happened, she asked Biong if he knew the exact address and
the latter immediately responded, Alam ko na yon. She was surprised because Galvan never told him
the place of the incident.
As soon as they arrived at the Vizcondes residence, Biong instructed the housemaids to contact the
victims relatives, while the security guard fetched the barangay chairman and the president of the
Homeowners Association. When all these persons were already in the house, Biong started recording
the wounds of the victim. Inside the masters bedroom, she saw Biong took a watch from the jewelry
box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and
proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder
bag. Moments later, Biong came out from the room and proceeded to the front door to remove the
chain lock; asked the keys from the housemaid and it was only then that the main door was opened.
Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go
inside the servants quarters as he doubted the housemaids claim that they heard nothing unusual.
Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came
out of the room and told Biong that he can hear the sound of the glass being broken. At the garage,
Biong also noticed same marks on the hood of the car.

On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde
housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things
she also saw from Vizcondes residence, to wit: calling cards, drivers license, ATM card, a crossed
check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry
box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00
at a pawnshop in-front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw
Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the
latter claimed to have been given to him by the person who called him up in the early morning of June
30, 1991.
Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed
that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when
Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she
was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being
interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed
Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered
regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of
petitioners. It ruled:30
x x x.
The voluminous number of exhibits submitted by respondent Webb to support his defense of denial
and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes
that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the
positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the
face of positive identification especially so where the claim of alibi is supported mainly by friends and
relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of
cases).
Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the
declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687
[1994]) Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the
positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalians defense of alibi was not corroborated by Lejano, whom he claimed was with
him watching video tapes at the Syyap residence. Other than claiming that he was not and could not
have been at or near the area of the Vizconde residence at the time of the alleged commission of the
crime, respondent Lejano proffered no evidence to substantiate his claim of alibi.
x x x.
On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of
documents tending to show that he was thousands of miles away when the incident occurred. We have
carefully deliberated and argued on the evidence submitted by respondent Webb in support of his
absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to
exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While
respondent Webb may have submitted proof tending to show that he was issued a California drivers
license on June 14, 1991, there is no showing that he could not have been in the country on the dates
above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a
bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2)
househelps of the Webb family who testified that he was here in the country on said dates.
Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive
proof that the name appearing thereon was the actual buyer of the merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel
did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of
probable cause needs only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspects. Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United
States,31 while probable cause demands more than bare suspicion, it requires less than evidence
which would justify x x x conviction. A finding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of probable cause,
we also hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses
for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the
sound discretion of the investigator and the investigator alone. If the evidence on hand already yields
a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary manner. Preliminary
investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise
of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In
the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish
probable cause and clarificatory hearing was unnecessary.
II

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent
Judge Amelita Tolentino issued warrants of arrest against them without conducting the required
preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the
issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of
arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base
a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a
mere accessory had a NO BAIL recommendation by the DOJ Panel. Petitioners postulate that it was
impossible to conduct a searching examination of witnesses and evaluation of the documents on the
part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than
the fundamental law of the land. Section 2 of Article III of the Constitution provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce and particularly describing the place to be searched and the persons or
things to be seized.
The aforequoted provision deals with the requirements of probable cause both with respect to issuance
of warrants of arrest and search warrants. The similarities and differences of their requirements ought
to be educational. Some of them are pointed out by Professors LaFave and Israel, thus:32 It is
generally assumed that the same quantum of evidence is required whether one is concerned with
probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to
somewhat different facts and circumstances, and thus one can exist without the other. In search cases,
two conclusions must be supported by substantial evidence: that the items sought are in fact seizable
by virtue of being connected with criminal activity, and that the items will be found in the place to be
searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases
there must be probable cause that a crime has been committed and that the person to be arrested
committed it, which of course can exist without any showing that evidence of the crime will be found
at premises under that persons control. Worthy to note, our Rules of Court do not provide for a similar
procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to
warrants of arrest, section 6 of Rule 112 simply provides that upon filing of an information, the
Regional Trial Court may issue a warrant for the arrest of the accused. In contrast, the procedure to be
followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:
x x x
Sec. 3. Requisites for issuing search warrant.A search warrant shall not issue but upon probable
cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record.The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath the complainant
and any witnesses he may produce on facts personally known to them and attach to the record their
sworn statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant.If the judge is thereupon satisfied of the facts upon
which the application is based, or that there is probable cause to believe that they exist, he must issue
the warrant, which must be substantially in the form prescribed by these Rules.
We discussed the difference in the procedure of issuing warrants of arrest and search warrants in
Soliven vs. Makasiar,33 thus:
x x x
The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
The addition of the word personally after the word determined and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to other responsible officers as may be
authorized by law, has apparently convinced petitioner Beltran that the Constitution now requires the
judge to personally examine the complainant and his witnesses in his determination of probable cause
for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally

evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscals report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and our case law34 repudiate the submission of
petitioners that respondent judges should have conducted searching examination of witnesses
before issuing warrants of arrest against them. They also reject petitioners contention that a judge
must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring
the issuance of an Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn
statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer35 as well as the
counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties
evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue
warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of guilt of an accused. In doing so,
judges do not conduct a de novo hearing to determine the existence of probable cause. They just
personally review the initial determination of the prosecutor finding a probable cause to see if it is
supported by substantial evidence. The sufficiency of the review process cannot be measured by
merely counting minutes and hours. The fact that it took the respondent judges a few hours to review
and affirm the probable cause determination of the DOJ Panel does not mean they made no personal
evaluation of the evidence attached to the records of the case.36
Petitioners reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on
the utter failure of the evidence to show the existence of probable cause. Not even thecorpus delicti of
the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency
of the evidence on record, we stressed the necessity for the trial judge to make a further personal
examination of the complainant and his witnesses to reach a correct assessment of the existence or
non-existence of probable cause before issuing warrants of arrest against the accused. The case at
bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence
extant in the records of the case provide substantial basis for a finding of probable cause against the
petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the
imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn
statements of their former maids. It was therefore unnecessary for the respondent judges to take the
further step of examining ex parte the complainant and their witnesses with searching questions.
III

Petitioners also complain about the denial of their constitutional right to due process and violation of
their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by
the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary
investigation.
We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary
investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable
cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of
the Solicitor General, viz:
Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard.
Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing
held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a Motion for
Production and Examination of Evidence and Documents on June 27, 1995 (p. 4, Petition), a Reply to
the Compliance and Comment/Manifestation to the Motion for Production and Examination of
Evidence on July 5, 1995 (p. 6, Petition), a Comment and Manifestation on July 7, 1995 (p. 6,
Petition), his Counter-Affidavit on July 14, 1995 (pp. 6-7, Petition) and a Motion to Resolve on
August 1, 1995. Numerous letter-requests were also sent by the petitioner Webbs counsel to the DOJ
Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the
petitioners whereabouts during the material period (Annexes L, L-1 and L-2 of the Supplemental
Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issue
subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a Petition for Injunction,
Certiorari, Prohibition and Mandamus with the Regional Trial Court, Branch 63 of Makati in order to
compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ
Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to
the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of
the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro (Attached
hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995)
marked as Annex F. 681
It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary
investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to

conduct further proceedings, e.g., comparison of the photo-copies of the submitted documents with
the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the Response submitted by
accused Miguel Rodriguez on July 18, 1995. (p. 17, Resolution) In addition to these, the panel even
announced that any party may submit additional evidence before the resolution of the case. (p. 8,
Petition) From the time the panel declared the termination of the preliminary investigation on July 14,
1995,twenty-seven (27) days elapsed before the resolution was promulgated, and the information
eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the
directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall
resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ
Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study
the evidence submitted more fully. This directly disputes the allegation of the petitioners that the
resolution of the preliminary investigation was done with indecent haste in violation of the rights of the
petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and
present additional evidence before the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due process during the conduct of the
preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed
the Information in court against them.
Petitioners cannot also assail as premature the filing of the Information in court against them for rape
with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ
Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice
Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz:
SECTION 4. Non-Appealable Cases; Exceptions.No appeal may be taken from a resolution of the
Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause
except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of
manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had
already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal
shall be dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold
the filing of the information in court.
SECTION 2. When to Appeal.The appeal must be filed within a period of fifteen (15) days from receipt
of the questioned resolution by the party or his counsel. The period shall be interrupted only by the
filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall
continue to run from the time the resolution denying the motion shall have been received by the
movant or his counsel. (Italics supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the
consummation of the preliminary investigation even if the accused can still exercise the right to seek a
review of the prosecutors recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored
on Republic Act No. 6981, entitled An Act Providing For A Witness Protection, Security And Benefit
Program And For Other Purposes enacted on April 24, 1991. Alfaro qualified under its Section 10,
which provides:
x x x
Sec. 10. State Witness.Any person who has participated in the commission of a crime and desires to
be a witness for the State, can apply and, if qualified as determined in this Act and by the Department,
shall be admitted into the Program whenever the following circumstances are present:
(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its
equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the offense committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in order that he may be
a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his
petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in
this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119
of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in
the criminal Complaint or Information, thus:
x x x

Sec. 12. Effect of Admission of a State Witness into the Program.The certification of admission into
the Program by the Department shall be given full faith and credit by the provincial or city prosecutor
who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if
included therein, to petition the court for his discharge in order that he can be utilized as a State
Witness. The court shall order the discharge and exclusion of the said accused from the information.
Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for
the offense or offenses in which his testimony will be given or used and all the rights and benefits
provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute x x x
an intrusion into judicial prerogative for it is only the court which has the power under the Rules on
Criminal Procedure to discharge an accused as a state witness. The argument is based on Section 9,
Rule 11938 which gives the court the prerogative to approve the discharge of an accused to be a state
witness. Petitioners argument lacks appeal for it lies on the faulty assumption that the decision whom
to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative
interference. In truth, the prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully executed. A necessary
component of this power to execute our laws is the right to prosecute their violators. The right to
prosecute vests the prosecutor with a wide range of discretionthe discretion of whether, what and
whom to charge, the exercise of which depends on a smorgasbord of factors which are best
appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to
enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a
witness in the program and who shall be granted immunity from prosecution.39 Section 9 of Rule 119
does not support the proposition that the power to choose who shall be a state witness is an inherent
judicial prerogative. Under this provision, the court is given the power to discharge a state witness only
because it has already acquired jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function.
Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed
to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal
reform laws to help government in its uphill fight against crime, one certain cause of which is the
reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz:
Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/
cases have been dismissed for insufficiency and/or lack of evidence. For a more effective
administration of criminal justice, there was a necessity to pass a law protecting witnesses and
granting them certain rights and benefits to ensure their appearance in investigative bodies/courts.40
Petitioner Webbs challenge to the validity of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery proceedings during their
preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of
Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive
reading of the rights of persons under preliminary investigation it deserves serious consideration. To
start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during
the preliminary investigation stage of a criminal proceeding.41 Sections 10 and 11 of Rule 117 do
provide an accused the right to move for a bill of particulars and for production or inspection of
material evidence in possession of the prosecution.42But these provisions apply after the filing of the
Complaint or Information in court and the rights are accorded to the accused to assist them to make an
intelligent plea at arraignment and to prepare for trial.43
This failure to provide discovery procedure during preliminary investigation does not, however, negate
its use by a person under investigation when indispensable to protect his constitutional right to life,
liberty and property. Preliminary investigation is not too early a stage to guard against any significant
erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object
of a preliminary investigation is to determine the probability that the suspect committed a crime. We
hold that the finding of a probable cause by itself subjects the suspects life, liberty and property to
real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be
understated for they are charged with the crime of rape with homicide, a non-bailable offense when
the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary
investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted
by one whose high duty is to be fair and impartial.44 As this Court emphasized in Rolito Go vs. Court of
Appeals,45 the right to have a preliminary investigation conducted before being bound over for trial
for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere
formal or technical right; it is a substantive right. A preliminary investigation should therefore be
scrupulously conducted so that the constitutional right to liberty of a potential accused can be
protected from any material damage. We uphold the legal basis of the right of petitioners to demand
from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and
the FBI Report during their preliminary investigation considering their exculpatory character, and
hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the
constitutional protection of due process which we rule to be operational even during the preliminary
investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires
during the preliminary investigation the filing of a sworn complaint which shall x x x state the known
address of the respondent and be accompanied by affidavits of the complainant and his witnesses as
well as other supporting documents. x x x.

In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the
1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that suppression
of evidence favorable to an accused upon request violates due process where the evidence is material
to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Its progeny is the
1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutors intentional use
of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming
up the prosecutors duty to disclose to the defense exculpatory evidence in its possession.48 The
rationale is well put by Justice Brennan in Brady 49society wins not only when the guilty are
convicted but when criminal trials are fair. Indeed, prosecutors should not treat litigation like a game
of poker where surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we
are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated
April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have
found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a
photocopy of Alfaros April 28, 1995 sworn statement. It explained it cannot produce the original as it
had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from
Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099.50 As petitioners
admit, the DOJ Panel accepted the original of Alfaros April 28, 1995 sworn statement as a part of their
evidence.51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their
preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for
petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material
discrepancies between the first and second sworn statements of Alfaro. For reasons we have
expounded, this finding of probable cause cannot be struck down as done with grave abuse of
discretion.52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb
cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence
presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the
prejudicial publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the most problematic areas in constitutional law
where the conflicting demands of freedom of speech and of the press, the publics right to information,
and an accuseds right to a fair and impartial trial collide and compete for prioritization. The process of
pinpointing where the balance should be struck has divided men of learning as the balance keeps
moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of
the people dictate. The dance of the balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications
industry. For sure, few cases can match the high volume and high velocity of publicity that attended
the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case
continues unabated even today. Commentators still bombard the public with views not too many of
which are sober and sublime. Indeed, even the principal actors in the casethe NBI, the respondents,
their lawyers and their sympathizershave participated in this media blitz. The possibility of media
abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to
the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia,53 it was wisely
held:
x x x
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nations organic laws were adopted, criminal trials
both here and in England had long been presumptively open, thus giving assurance that the
proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the significant community
therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction
of outrage and public protest often follows, and thereafter the open processes of justice serve an
important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To
work effectively, it is important that societys criminal process satisfy the appearance of justice, Offutt
v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people
to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness inheres in the very
nature of a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States, 362 US
610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share
a common core purpose of assuring freedom of communication on matters relating to the functioning
of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can
be read as protecting the right of everyone to attend trials so as to give meaning to those explicit
guarantees; the First Amendment right to receive information and ideas means, in the context of trials,
that the guarantees of speech and press, standing alone, prohibit government from summarily closing
courtroom doors which had long been open to the public at the time the First Amendment was

adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First Amendment
rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where
the people generallyand representatives of the mediahave a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the public the
right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials
is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of speech and of the press could be
eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances
can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et
al.,54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that
the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In
the case at bar, we find nothing in the records that will prove that the tone and content of the publicity
that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ
Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is
composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether they can easily be blinded by the
klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence except evidence properly adduced by
the parties. The length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now
have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and
while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to
flame an accuseds right to fair trial. Without imposing on the trial judge the difficult task of
supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the
duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair
administration of justice.55 The Court reminds judges that our ability to dispense impartial justice is an
issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused.
More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure
fulfillment of the promise that justice shall be done and is doneand that is the only way for the
judiciary to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the
part of the respondents. Costs against petitioners.
SO ORDERED. Webb vs. De Leon, 247 SCRA 652, G.R. No. 121234, G.R. No. 121245, G.R. No. 121297
August 23, 1995
476
SUPREME COURT REPORTS ANNOTATED
People vs. Buluran
G.R. No. 113940. February 15, 2000.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CIELITO BULURAN y RAMIREZ and LEONARDO
VALENZUELA y CASTILLO, accused-appellants.
Criminal Law; Criminal Procedure; Arraignment; Arrests; Any objection involving a warrant of arrest or
the acquisition of jurisdiction over the person of an accused must be made before he enters his plea,
otherwise the objection is deemed waived.Appellants are estopped from questioning the validity of
their respective arrests since they never raised this issue before arraignment. Any objection involving a
warrant of arrest or the acquisition of jurisdiction overthe person of an accused must be made before
he enters his plea, otherwise the objection is deemed waived.
Same; Same; Same; Custodial Investigations; Any allegation of violation of rights during custodial
investigation is relevant and material only to cases in which an extrajudicial admission or confession
extracted from the accused becomes the basis of their conviction.There is no violation of the
constitutional rights of the accused during custodial investigation since neither one executed an
extrajudicial confession or admission. In fact, the records show that appellant Cielito Buluran opted to
remain silent during the custodial investigation. Any allegation of violation of rights during custodial
investigation is relevant and material only to cases in which an extrajudicial admission or confession
extracted from the accused becomes the basis of their conviction. In this case, the basis of the
conviction by the trial court was the testimonies of the three eyewitnesses, Artemio Avendao, Jacinto
Castillo, and Gloria Castillo. It is noteworthy that appellants never attempted to impeach their
testimonies during trial. Neither do they assail the credibility of said witnesses on appeal.

Same; Same; Same; Same; Right to Counsel; The right to counsel is not deemed waived by reason of
failure to make a timely objection before pleathere can be no valid waiver of the right to counsel
unless such waiver is in writing and in the presence of counsel.In relation to the view of the Office of
the Solicitor General that the right to counsel during custodial investigation can be waived by reason of
failure to make a timely objection before plea, we must stress that there can be no valid waiver of the
right to counsel unless such waiver is in writing and in the presence of counsel as mandated by Article
III, Section 12 of the 1987 Constitution and the pertinent provisions of Republic Act No. 7438.
Same; Same; Same; Preliminary Investigation; While the right to preliminary investigation is a
substantive right and not a mere formal or technical right of the accused, nevertheless, the right is
deemed waived when the accused fails to invoke it before or at the time of entering a plea at
arraignment.The- failure to accord appellants their right to preliminary investigation did not impair
the validity of the information nor affect the jurisdiction of the trial court. While the right to preliminary
investigation is a substantive right and not a mere formal or technical right of the accused, never
theless, the right to preliminary investigation is deemed waived when the accused fails to invoke it
before or at the time of entering a plea at arraignment. It appearing that appellants only raised the
issue of lack of preliminary investigation during appeal, their right to a preliminary investigation was
deemed waived when they entered their respective pleas of not guilty.
Same; Murder; Conspiracy; Conspiracy to exist does not require an agreement for an appreciable
period prior to the occurrence.Unquestionably, and appellants do not allege otherwise, conspiracy
attended the killing of the victim. Conspiracy to exist does not require an agreement for an appreciable
period prior to the occurrence. From the legal standpoint, conspiracy exists if, at the time of the
commission of the offense, the accused had the same purpose and were united in its execution. In this
case, the presence of appellants, both armed with deadly weapons, at the locus criminis indubitably
shows their complicity in the criminal design of Reynaldo Danao to kill the victim.
Same; Same; Aggravating Circumstances; Treachery; Where a killing was preceded by an argument or
quarrel, then the qualifying circumstance of treachery can no longer be appreciated since the victim
could be said to have been forewarned and could anticipate aggression from the assailants.We find
that no treachery attended the killing. On numerous occasions, we have held that where a killing was
preceded by an argument or quarrel, then the qualifying circumstance of treachery can no longer be
appreciated since the victim could be said to have been forewarned and could anticipate aggression
from the assailants. The previous boxing incident between the victim and Reynaldo Danao must have
already put the victim on guard for further aggression or retaliation by Reynaldo Danao. Hence,
treachery could not be appreciated as a qualifying circumstance in this case.
Same; Same; Same; Evident Premeditation; Where the attack was made about two minutes after the
initial altercation, it cannot be said that there was sufficient lapse of time between such determination
to commit the crime and its execution so as to allow the assailants to reflect upon the consequences of
their actions.The aggravating circumstance of evident premeditation alleged by the prosecution was
not proved clearly and convincingly. Considering that the attack was made about two minutes after the
initial altercation, it cannot be said that there was sufficient lapse of time between such determination
to commit the crime and its execution so as to allow the assailants to reflect upon the consequences of
their actions.
Same; Same; Same; Informations; Right to be Informed; Abuse of Superior Strength; To appreciate
abuse of superior strength as an aggravating circumstance, what should be considered is not that
there were three, four or more assailants of one victim, but whether the aggressors took advantage of
their combined strength in order to consummate the offense; Where abuse of superior strength was
not alleged in the Information, it can only be considered as a generic aggravating circumstance.We
find, however, that the aggravating circumstance of abuse of superior strength attended the killing. To
appreciate abuse of superior strength as an aggravating circumstance, what should be considered is
not that there were three, four or more assailants of one victim, but whether the aggressors took
advantage of their combined strength in order to consummate the offense. It is therefore necessary to
show that the attackers cooperated in such a way as to secure advantage of their superiority in
strength. In this case, appellants and their companions purposely gathered together and armed
themselves to take advantage of their combined strength to ensure that Reynaldo Danao would be
able to kill the victim without any interference from other bystanders. However, not having been
alleged in the Information, abuse of superior strength can only be considered as a generic aggravating
circumstance.
APPEAL from a decision of the Regional Trial Court of Quezon City, Br. 95.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Gil P. De Guzman Law Offices for accused-appellants.
QUISUMBING, J.:
On appeal is the decision dated February 4, 1994, of the Regional Trial Court of Quezon City, Branch
95, convicting accused-appellants of the crime of murder and sentencing them to suffer the penalty of
reclusion perpetua, to pay solidarily the heirs of the deceased the amount of P50,000.00 as indemnity,
and P8,000.00 as actual damages, and also to pay proportionately the costs.

Of the four suspected perpetrators of the crime, only two were arrested and tried, namely Cielito
Buluran and Leonardo Valenzuela, now the appellants. The other two, Reynaldo Danao and Jaime
Danao, remain at-large.
The facts, as gleaned from the records, are as follows:
On May 16, 1993, shortly before 7:15 in the evening, the Meyer family was celebrating the birthday of
their mother at their residence in Area 4, Barangay Amaparo, Capri, Novaliches, Quezon City. It
appears that Dominador Meyer, Jr., had an altercation with a cousin. The victim, Edilberto Meyer, Sr.,
tried to pacify them, and brought Dominador outside the house to cool-off. However, while the victim
and Dominador, were talking outside their residence, Reynaldo Danao approached them and warned
them not to make any trouble because the community was celebrating its fiesta. The victim denied
making any trouble and said that the matter was a family problem. Suddenly, Reynaldo boxed the
victim who also retaliated with a fistblow. The two exchanged blows and grappled with each other.
Reynaldo managed to run away but returned after about two minutes.
Now, accompanied by his barkadas or gangmates (Cielito Buluran, Leonardo Valenzuela and Jaime
Danao), Reynaldo was armed with a 12-inch stainless knife. Cielito had also a knife. Leonardo and
Jaime each carried slingshots, with sharp-pointed arrows made of five-inch nails with abaca tails.
Without warning, Reynaldo stabbed the victim at the left side of his lower back. All the while, his three
companions were pointing and brandishing their weapons at the Meyer brothers and the other people
present in order to prevent them from interfering. Cielito poked his knife at the Meyer brothers and
stood guard to prevent other people from rendering help to the victim. Leonardo likewise held his
slingshot against the Meyer brothers and prevented people from going near the victim by pointing his
loaded slingshot at them. Thereafter, the four barkadas fled. The victim died that same night.1
On May 20, 1993, appellant Cielito Buluran and three (3) John Does were charged with the crime of
murder under the following Information:2
I N F O R M A T I O N
The undersigned accuses CIELITO BULURAN Y RAMIREZ of the crime of Murder, committed as follows:
That on or about the 16th day of May, 1993, in Quezon City, Philippines, the above-named accused,
conspiring, confederating with three (3) other persons, whose true identities, whereabouts and other
personal circumstances of which have not yet been ascertained, and mutually helping one another, did
then and there, wilfully, unlawfully and feloniously with intent to kill, qualified with treachery and
evident premeditation, assault and employ personal violence upon the person of one EDILBERTO
MEYER, SR. Y JAVIER, by then and there stabbing him with the use of a deadly weapon (knife) hitting
him at his back, thereby inflicting upon him serious and mortal wounds which was the direct and
immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Edilberto
Meyer, Sr. y Javier.
CONTRARY TO LAW.
Quezon City, Philippines, May 19,1993.
(SGD.) WILFREDO L. MAYNIGO
Assistant City Prosecutor
The Information was later amended3 when Leonardo Valenzuela was identified as one of the
assailants. Upon arraignment, both accused entered pleas of not guilty.4During trial, the prosecution
presented three eyewitnesses to the stabbing incident, namely Artemio Avendao, Jacinto Castillo, and
Gloria Castillo.5 All were neighbors of the victim. The prosecution likewise presented PO1 Roberto C.
San Miguel of Station 2, Sangang Daan, Novaliches, Quezon City, who invited appellant Buluran to
the precinct,6 and Chief Inspector Florante F. Baltazar, the Medico-Legal Officer who conducted the
autopsy on the victim. Baltazar testified that the cause of death was the penetrating stab wound at
the posterior left lumbar region.7 The victims widow, Mrs. Erlinda C. Meyer, testified as to the actual
damages sustained as a result of the death of her husband.8
For the defense, appellants denied any participation in the affray and testified that at the time of the
incident, they were both asleep in their respective houses.9 The father of appellant Buluran confirmed
that his son was asleep in their house from 5:00 in the afternoon until the policemen came to arrest
him at around 8:00 that same evening.10 Manuel Valenzuela testified that his brother Leonardo,
appellant herein, was drunk and asleep inside their house from 5:00 in the afternoon until the following
day. Contrary to the version of the prosecution, Manuel testified that he saw a fight erupt between
Reynaldo Danao on one hand, and the victim, one Boyet, and one Amang, on the other hand. The
victim, Boyet and Amang stabbed Reynaldo three times with their knives. Reynaldo retaliated by
stabbing the victim and fleeing afterwards. Thereafter, people from the Meyer house came out and
started throwing empty bottles in front of the store, causing all the bystanders to scamper away.
Manuel was even hit by a flying bottle at his left eyebrow, which left a scar, because he was mistaken
for his brother. At around 7:45 am., Manuel tried to wake up his brother, appellant Leonardo
Valenzuela, from his drunken stupor but the latter would not budge. Thereafter, Manuel went to the
house of appellant Buluran, but Buluran was also drunk and asleep at that time.11

To bolster their version, the defense presented Dr. Feliciano Bornales, who testified that two (2) days
after the incident, or on May 18, 1993, he treated one Reynaldo Danao for two stab wounds and an
incised wound. Dr. Bornales testified that he did not know who inflicted such wounds.12
On February 4, 1994, the trial court, finding conspiracy and treachery, rendered judgment13 convicting
appellants of murder. The dispositive portion of the judgment reads:
WHEREFORE, the Court finds both accused Cielito Buluran y Ramirez and Leonardo Valenzuela y
Castillo guilty beyond reasonable doubt of the crime of murder charged herein, defined and punished
in Art. 248 of the Revised Penal Code, as principals in the commission thereof and, accordingly, they
are hereby sentenced each to suffer the penalty of reclusion perpetua; jointly and severally to
indemnify the heirs of the deceased Edilberto Meyer, Sr. y Javier in the sum of eight thousand pesos as
actual damages and in the further sum of fifty thousand pesos as death indemnity; and, to pay the
proportionate costs, without prejudice to the application of Rep. Act No. 6127 in favor of each of them.
SO ORDERED.
Quezon City, Philippines, February 04, 1994.14
Hence, the present appeal. Appellants assign the following errors:
I. THE COURT ERRED BY FAILING TO INQUIRE WHETHER APPELLANTS WERE REPRESENTED BY COUNSEL
IN THE CUSTODIAL INVESTIGATION CONDUCTED BY THEPOLICE WHICH LATER ON PRESENTED THEM
FOR INQUEST TO THE CITY PROSECUTOR OF QUEZON CITY;
II. THE COURT ERRED IN FAILING TO CONSIDER THE FACT THAT APPELLANTS WERE ARRESTED BY THE
POLICE, WITHOUT ANY PRELIMINARY INVESTIGATION BY THE CITY PROSECUTOR;
III. THE COURT ERRED IN CONVICTING THE APPELLANTS WHO INSTEAD ARE ENTITLED TO ACQUITTAL
ON GROUNDS OF VIOLATION OF THEIR CONSTITUTIONAL RIGHTS AND PROCEDURAL RIGHTS TO DUE
PROCESS WHICH DIVESTED THE COURT OF JURISDICTION.
In their consolidated brief, appellants contend that they were merely made the scapegoats for the
killing. They insist they have no previous police record and should be presumed as law-abiding citizens.
Moreover, appellants argue that their warrantless arrest and the lack of preliminary investigation
render the criminal proceedings against them illegal for violation of their constitutional rights.
The Office of the Solicitor General, for the State, contends that conspiracy is the rope that binds
appellants together, even though only Reynaldo Danao actually stabbed the victim. Further, any
alleged irregularity in their arrest or the lack of preliminary investigation cannot be raised for the first
time on appeal, since these irregularities should have been properly raised before arraignment.
In our view, the issues here involve the alleged irregularity of appellants arrest; the alleged violation
of their constitutional rights during custodial investigation for lack of counsel; and the alleged invalidity
of the proceedings in the trial court sans preliminary investigation. Considering these issues, we hold
that:
First. Appellants are estopped from questioning the validity of their respective arrests since they never
raised this issue before arraignment. Any objection involving a warrant of arrest or the acquisition of
jurisdiction over the person ofan accused must be made before he enters his plea, otherwise the
objection is deemed waived.15
Second. There is no violation of the constitutional rights of the accused during custodial investigation
since neither one executed an extrajudicial confession or admission. In fact, the records16 show that
appellant Cielito Buluran opted to remain silent during the custodial investigation. Any allegation of
violation of rights during custodial investigation is relevant and material only to cases in which an
extrajudicial admission or confession extracted from the accused becomes the basis of their
conviction.17 In this case, the basis of the conviction by the trial court was the testimonies of the three
eyewitnesses, Artemio Avendao, Jacinto Castillo, and Gloria Castillo. It is noteworthy that appellants
never attempted to impeach their testimonies during trial. Neither do they assail the credibility of said
witnesses on appeal.
However, in relation to the view of the Office of the Solicitor General that the right to counsel during
custodial investigation can be waived by reason of failure to make a timely objection before plea,18 we
must stress that there can be no valid waiver of the right to counsel unless such waiver is in writing
and in the presence of counsel as mandated by Article III, Section 12 of the 1987 Constitution and the
pertinent provisions of Republic Act No. 7438.19
Third. The failure to accord appellants their right to preliminary investigation did not impair the validity
of the information nor affect the jurisdiction of the trial court.20 While the right to preliminary
investigation is a substantive right and not a mere formal or technical right of the accused,
nevertheless, the right to preliminary investigation is deemed waived when the accused fails to invoke
it before or at the time of entering a plea at arraignment.21 It appearing that appellants only raised
the issue of lack of preliminary investigation during appeal, their right to a preliminary investigation
was deemed waived when they entered their respective pleas of not guilty.
Pursuant to the doctrine that an appeal in a criminal case opens the whole case for review (including
penalty, indemnity and damages),22 we shall now consider whether appellants were correctly found
guilty of murder beyond reasonable doubt.

Unquestionably, and appellants do not allege otherwise, conspiracy attended the killing of the victim.
Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence.23
From the legal standpoint, conspiracy exists if, at the time of the commission of the offense, the
accused had the same purpose and were united in its execution.24 In this case, the presence of
appellants, both armed with deadly weapons, at the locus criminis indubitably shows their complicity in
the criminal design of Reynaldo Danao to kill the victim.
However, we find that no treachery attended the killing. On numerous occasions, we have held that
where a killing was preceded by an argument or quarrel, then the qualifying circumstance of treachery
can no longer be appreciated since the victim could be said to have been forewarned and could
anticipate aggression from the assailants.25 The previous boxing incident between the victim and
Reynaldo Danao must have already put the victim on guard for further aggression or retaliation by
Reynaldo Danao. Hence, treachery could not be appreciated as a qualifying circumstance in this case.
Moreover, the aggravating circumstance of evident premeditation alleged by the prosecution was not
proved clearly and convincingly.26 Considering that the attack was made about two minutes after the
initial altercation,27 it cannot be said that there was sufficient lapse of time between such
determination to commit the crime and its execution so as to allow the assailants to reflect upon the
consequences of their actions.28
We find, however, that the aggravating circumstance of abuse of superior strength attended the killing.
To appreciate abuse of superior strength as an aggravating circumstance, what should be considered
is not that there were three, four or more assailants of one victim, but whether the aggressors took
advantage of their combined strength in order to consummate the offense. It is therefore necessary to
show that the attackers cooperated in such a way as to secure advantageof their superiority in
strength.29 In this case, appellants and their companions purposely gathered together and armed
themselves to take advantage of their combined strength to ensure that Reynaldo Danao would be
able to kill the victim without any interference from other bystanders. However, not having been
alleged in the Information, abuse of superior strength can only be considered as a generic aggravating
circumstance.30
Absent any qualifying circumstance, appellants should therefore be held liable only for the crime of
homicide, attended by one aggravating circumstance. Consequently, the penalty should only be the
penalty for homicide under Article 249 of the Revised Penal Code, which is reclusion temporal, and not
reclusion perpetua. Applying the Indeterminate Sentence Law, each of the appellants should be
sentenced to 8 years and one (1) day of prision mayor as minimum to 18 years of reclusion temporal
as maximum.
As to the amount of damages, prevailing jurisprudence sets the indemnity for death in the amount of
P50,000.00, which can be awarded without need of further proof other than the death of the victim.31
The amount of P8,000.00 as actual damages should likewise be affirmed, the wife having presented a
receipt (Exhibit C) to support such claim.32 In addition, there being one aggravating circumstance,
exemplary damages in the amount of P20,000.0033 may be awarded, pursuant to Article 2230 of the
New Civil Code.
WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS. Accused-appellants are hereby
found guilty of the crime of Homicide, and sentenced to an indeterminate penalty of eight (8) years
and one (1) day of prision mayor as minimum to eighteen (18) years of reclusion temporal as
maximum, and to pay jointly and severally, the heirs of the deceased, the amount of P50,000.00 as
indemnity, P8,000.00 as actual damages, and P20,000 as exemplary damages. Costs against
appellants.
SO ORDERED. People vs. Buluran, 325 SCRA 476, G.R. No. 113940 February 15, 2000
626
SUPREME COURT REPORTS ANNOTATED
Budiongan, Jr. vs. Dela Cruz, Jr.
G.R. No. 170288. September 22, 2006.*
PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E. TRABAJO, Municipal Vice Mayor and Presiding
Officer of the Sangguniang Bayan; FULGENCIO V. PAA, Municipal Treasurer; TACIANA B. ESPEJO,
Municipal Budget Officer; and SB Members: RUFINO G. ADLAON, TITO R. MONTAJES, MARIO M. SORIA,
ALFONSO L. UNAJAN, CARLITO B. TORREFRANCA, VICENTE A. TORREFRANCA, JR., petitioners, vs. HON.
JACINTO M. DELA CRUZ, JR., Asst. Special Prosecutor I; HON. CORNELIO L. SONIDO, Acting Director,
Prosecution Bureau IV; HON. ROBERT E. KALLOS, Deputy Special Prosecutor; HON. DENNIS M. VILLA
IGNACIO, The Special Prosecutor; HON. WENDELL E. BARRERAS-SULIT, Acting Director, Case
Assessment, Review and Re-investigation Bureau; and OFFICE OF THE SPECIAL PROSECUTOR, public
respondents. VALERIANO U. NADALA, ARLENE PAINAGAN-PALGAN, private respondents.
Preliminary Investigation; Jurisdictions; The right to a preliminary investigation is not a constitutional
right, but is merely a right conferred by statutethe absence of a preliminary investigation does not
impair the validity of the information or otherwise render the same defectiveit does not affect the
jurisdiction of the court over the case or constitute a ground for quashing the informationif absence
of a preliminary investigation does not render the information invalid nor affect the jurisdiction of the
court over the case, then the denial of a motion for reinvestigation cannot likewise invalidate the

information or oust the court of its jurisdiction over the case.The right to a preliminary investigation
is not a constitutional right, but is merely a right conferred by statute. The absence of a preliminary
investigation does not impair the validity of the Information or otherwise render the same defective. It
does not affect the jurisdiction of the court over the case or constitute a ground for quashing the
Information. If absence of a preliminary investigation does not render the Information invalid nor affect
the jurisdiction of the court over the case, then the denial of a motion for reinvestigation cannot
likewise invalidate the Information or oust the court of its jurisdiction over the case.
Jurisdictions; The purpose of a preliminary investigation is merely to determine whether a crime has
been committed and whether there is probable cause to believe that the person accused of the crime
is probably guilty thereof and should be held for trial.The purpose of a preliminary investigation is
merely to determine whether a crime has been committed and whether there is probable cause to
believe that the person accused of the crime is probably guilty thereof and should be held for trial. A
finding of probable cause needs only to rest on evidence showing that more likely than not a crime has
been committed and was committed by the suspect. Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt.
Prosecutors; Absent any showing of arbitrariness on the part of the prosecutor or any other officer
authorized to conduct preliminary investigation, as in the instant case, courts as a rule must defer to
said officers finding and determination of probable cause, since the determination of existence of
probable cause is the function of the prosecutor.Absent any showing of arbitrariness on the part of
the prosecutor or any other officer authorized to conduct preliminary investigation, as in the instant
case, courts as a rule must defer to said officers finding and determination of probable cause, since
the determination of the existence of probable cause is the function of the prosecutor.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Trabajo-Lim Law Office for petitioners.
YNARES-SANTIAGO, J.:
This Petition for Certiorari under Rule 65 of the Rules of Court assails the Memorandum1 dated April
28, 2004 of the Office of the Special Prosecutor, Office of the Ombudsman, recommending that
petitioners be charged with violation of Section 3(e) of Republic Act (R.A.) No. 3019 and petitioner
Pedro E. Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the Resolution2
dated October 19, 2005 denying petitioners motion for reconsideration.
The antecedent facts are as follows:
By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of Carmen, Bohol appropriated
the amount of P450,000.00 for the purchase of a road roller for the municipality. However, on
November 16, 2001, the Municipal Development Council through Resolution No. 3 recommended that
the amount of P450,000.00 be realigned and used for the asphalt laying of a portion of the Tan
Modesto Bernaldez Street.3 The proposed realignment was included in the December 21, 2001 agenda
of the Sangguniang Bayan of Carmen but discussion thereon was deferred.
On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paa, issued a Certificate of
Availability of Funds for the project. Thereafter, the Office of the Municipal Engineer prepared a
Program of Works and Cost Estimates duly noted/approved by Municipal Budget Officer Taciana B.
Espejo and Mayor Budiongan.
Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor Budiongan issued the
Notice of Award and Notice to Commence Work in favor of Herbert Malmis General Merchandise and
Contractor, Inc. who emerged as the lowest complying bidder. On March 22, 2002, the Sangguniang
Bayan passed Resolution No. 60,4 series of 2002, authorizing Mayor Budiongan to sign and enter into
contract with Malmis relative to the above project in the amount of P339,808.00. With such authority,
Malmis commenced with the project.
Thereafter, it was discovered that there was yet no ordinance approving the realignment of the funds.
Thus, on May 17, 2002, the Sangguniang Bayan passed Ordinance No. 8,5 series of 2002, approving
the realignment of the fund. On June 14, 2002, Malmis was paid the contract price.
On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala filed a complaint6
against the petitioners before the Office of the Deputy Ombudsman for Visayas alleging illegality in the
conduct of the bidding, award and notice to commence work since there was no fund appropriated for
the purpose.
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found probable cause and
recommended the filing of an information for violation of Article 2207 of the Revised Penal Code
against the petitioners. However, the complaint against Hermosila Logrono, Desiderio Gudia, Jr. and
Herbert Malmis was dismissed for lack of merit.8
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the Office of the Special
Prosecutor, issued the assailed Memorandum dated April 28, 2004, modifying the charge from violation
of Article 220 of the Revised Penal Code to (1) violation of Section 3(e) of R.A. No. 3019 against
petitioners for allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h) of R.A.

No. 3019 against petitioner Budiongan for allegedly directly or indirectly having financial or pecuniary
interest in a contract or transaction in connection with which he intervenes or takes part in his official
capacity.
Thus, two separate Informations were filed before the Sandiganbayan (1) for violation of Section 3(e) of
R.A. No. 3019 against the petitioners docketed as Criminal Case No. 28075 and (2) for violation of
Section 3(h) of R.A. No. 3019 against petitioner Budiongan docketed as Criminal Case No. 28076.
Thereafter, petitioners filed a Motion to Quash9 the information charging them with violation of Sec.
3(e) of R.A. No. 3019. In a Resolution10 dated June 10, 2005, the Sandiganbayan granted the motion to
quash and remanded Criminal Case No. 28075 to the Office of the Ombudsman for amendment of the
Information. It held that although Malmis benefited from the contract, the same is not unwarranted
considering that the project was implemented, executed and completed.
On June 27, 2005, an Amended Information11 was filed charging petitioners with violation of Sec. 3(e)
of R.A. No. 3019, alleging that petitioners, by prematurely awarding to Malmis the project despite the
absence of funds specifically appropriated for such purpose, and thereafter paying the contract price
from the Municipal Treasury which was originally appropriated for the purchase of a road roller, caused
damage and undue injury to the government.
Finding that the Amended Information contains all the material averments necessary to make out a
case for the first mode of violating Section 3(e) of R.A. No. 3019, i.e., causing any undue injury to any
party, including the government, the Sandiganbayan admitted the Amended Information in its
Resolution dated August 18, 2005.12
On even date, petitioners filed with the Sandiganbayan a Motion for Leave of Court to File Motion for
Reinvestigation13 arguing that the above Informations were filed without affording them the
opportunity to file counter-affidavits to answer/rebut the modified charges. On September 20, 2005,
the Sandiganbayan issued a Resolution14 denying the motion insofar as Criminal Case No. 28076 is
concerned. It held that it is too late in the day to remand the case for reinvestigation considering that
Budiongan had already been arraigned and the case had long been set for pre-trial proceedings, with
both parties having filed their respective briefs. As regards Criminal Case No. 28075, the
Sandiganbayan noted that although the conduct of the preliminary investigation was regular,
petitioners however were not given the opportunity to seek reconsideration of the modified charges.
Thus, it granted leave to the petitioners to file with the Office of the Special Prosecutor a motion for
reconsideration (not a motion for reinvestigation) of the said offices Memorandum dated April 28,
2004.
Petitioners filed a Motion for Reconsideration with the Office of the Special Prosecutor which was
denied for lack of merit in the Resolution dated October 19, 2005.
Hence, this petition raising the following issues:
I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR IN EXCESS OF JURISDICTION IN REJECTING THE FINDINGS AND AMENDING/MODIFYING THE
RESOLUTION OF THE GRAFT INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING THE
INFORMATION FOR VIOLATION OF SEC. 3(e) OF RA 3019 WITHOUT AFFORDING PETITIONERS THE
OPPORTUNITY TO PRESENT THEIR COUNTER EVIDENCE IN A RE-INVESTIGATION;
II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE-INVESTIGATION HAS VIOLATED
PETITIONERS RIGHT TO DUE PROCESS;
III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR IN EXCESS OF JURISDICTION IN ISSUING RESOLUTIONS DATED APRIL 28, 2004 AND OCTOBER 19,
2005 FINDING PROBABLE CAUSE FOR VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN
PETITIONERS; and
IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR IN EXCESS OF JURISDICTION IN FILING THE INFORMATION FOR VIOLATION OF SEC. 3(e) OF RA 3019
AGAINST PETITIONERS IN THE SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075.
Petitioners maintain that the modification of the charge from violation of Article 220 of the Revised
Penal Code to violation of Sections 3(e) and 3(h) of R.A. No. 3019 denied their rights to due process
since they were not given the opportunity to answer and present evidence on the new charge in a
preliminary investigation. Furthermore, the petitioners argue that public respondents committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the challenged resolutions
finding probable cause for violation of R.A. No. 3019.
The petition lacks merit.
The right to a preliminary investigation is not a constitutional right, but is merely a right conferred by
statute. The absence of a preliminary investigation does not impair the validity of the Information or
otherwise render the same defective. It does not affect the jurisdiction of the court over the case or
constitute a ground for quashing the Information.15 If absence of a preliminary investigation does not
render the Information invalid nor affect the jurisdiction of the court over the case, then the denial of a
motion for reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction
over the case.

Petitioners were not deprived of due process because they were afforded the opportunity to refute the
charges by filing their counter-affidavits. The modification of the offense charged did not come as a
surprise to the petitioners because it was based on the same set of facts and the same alleged illegal
acts. Moreover, petitioners failed to aver newly discovered evidence nor impute commission of grave
errors or serious irregularities prejudicial to their interest to warrant a reconsideration or
reinvestigation of the case as required under Section 8, Rule III of the Rules of Procedure of the Office
of the Ombudsman.16 Thus, the modification of the offense charged, even without affording the
petitioners a new preliminary investigation, did not amount to a violation of their rights.
Furthermore, the right to preliminary investigation is deemed waived when the accused fails to invoke
it before or at the time of entering a plea at arraignment.17 Petitioner Budiongan was arraigned in
Criminal Case No. 28076 on March 28, 2005. He was also arraigned together with the rest of the
petitioners under the Amended Information in Criminal Case No. 28075 on December 2, 2005.
The purpose of a preliminary investigation is merely to determine whether a crime has been
committed and whether there is probable cause to believe that the person accused of the crime is
probably guilty thereof and should be held for trial.18 A finding of probable cause needs only to rest on
evidence showing that more likely than not a crime has been committed and was committed by the
suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt.19
The Office of the Special Prosecutor is an integral component of the Ombudsman and is under the
latters supervision and control. Thus, whatever course of action that the Ombudsman may take,
whether to approve or to disapprove the recommendation of the investigating prosecutor, is but an
exercise of his discretionary powers based upon constitutional mandate. Generally, courts should not
interfere in such exercise. It is beyond the ambit of this Court to review the exercise of discretion of the
Ombudsman in prosecuting or dismissing a complaint filed before it, save in cases where there is clear
showing of grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
Ombudsman.20 Absent any showing of arbitrariness on the part of the prosecutor or any other officer
authorized to conduct preliminary investigation, as in the instant case, courts as a rule must defer to
said officers finding and determination of probable cause, since the determination of the existence of
probable cause is the function of the prosecutor.21
In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's resolution denying
petitioners motion for reconsideration since there is nothing to substantiate petitioners claim that it
gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the
case.22
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The assailed Memorandum of
the Office of the Special Prosecutor, Office of the Ombudsman, dated April 28, 2004 finding probable
cause that petitioners violated Sections 3(e) and 3(h) of Republic Act No. 3019 and the Resolution
dated October 19, 2005 denying petitioners Motion for Reconsideration, are hereby AFFIRMED.
SO ORDERED. Budiongan, Jr. vs. Dela Cruz, Jr., 502 SCRA 626, G.R. No. 170288 September 22, 2006
A.M. No. MTJ-07-1686.June 12, 2008.*
(Formerly OCA I.P.I. No. 07-1896-MTJ)
ALBERTO SIBULO, complainant, vs. Judge LORINDA B. TOLEDO-MUPAS, Municipal Trial Court,
Dasmarias, Cavite, respondent.
Remedial Law; Criminal Procedure; Preliminary Investigation; Judges of first level courts are no longer
authorized to conduct preliminary investigation.As correctly pointed out by complainant, judges of
first level courts are no longer authorized to conduct preliminary investigation. This is pursuant to the
amendment made by this Court on August 30, 2005 in A.M. No. 05-8-26-SC Re: Amendment of Rules
112 and 114 of the Revised Rules on Criminal Procedure by Removing the Conduct of Preliminary
Investigation from Judges of the First Level Courts, which took effect on October 3, 2005.
Administrative Law; Judges; Ignorance of the Law; For liability to attach for ignorance of the law, the
assailed order, decision or actuation of the judge in the performance of official duties must not only be
found to be erroneous but must be established to have been done with bad faith, dishonesty, hatred or
some similar motive.For liability to attach for ignorance of the law, the assailed order, decision or
actuation of the judge in the performance of official duties must not only be found to be erroneous but
must be established to have been done with bad faith, dishonesty, hatred or some similar motive. In
this case, the record is wanting in any showing that respondent was moved by wrongful, improper or
unlawful conduct in setting the preliminary conference before the accused was arraigned. Complainant
failed to substantiate any bad faith, malice or corrupt purpose that may have been present at the time
the mistaken procedure was carried out by respondent.
Same; Same; Same; The fact that a judge failed to recognize a basic or elementary law or rule of
procedure would not automatically warrant a conclusion that he is liable for gross ignorance.The fact
that a judge failed to recognize a basic or elementary law or rule of procedure would not
automatically warrant a conclusion that he is liable for gross ignorance. What is significant is whether
the subject order, decision or actuation of the judge unreasonably defeated the very purpose of the
law or rule under consideration and unfairly prejudiced the cause of the litigants. This was not present
here. Note that even if the conference was held prior to the arraignment of complainant, the resolution

of respondent finding probable cause against him was issued on October 25, 2006, or just a little over
a month after he filed his counter-affidavit on September 22, 2006. Thus, no remarkable delay in the
proceedings resulted. Further, no substantial injury was caused to the accused or to the private
complainant in the criminal cases.
ADMINISTRATIVE MATTER in the Supreme Court. Abuse of Authority.
The facts are stated in the opinion of the Court.
AZCUNA,J.:
This is an administrative case for abuse of authority against respondent Judge Lorinda B. ToledoMupas, who, as of now, has already been dismissed from service.
The Facts
In his verified complaint-affidavit received by the Office of the Court Administrator (OCA) on January
18, 2007, Alberto Sibulo charged MTC Judge Lorinda B. Toledo-Mupas with abuse of authority.
Complainant alleged that he is the accused in Criminal Case Nos. 06-0402 to 03 for Grave Threat and
Slight Physical Injuries, which are pending before respondents court; that on August 9, 2006,
respondent directed complainant to submit his counter-affidavit within ten (10) days from receipt of
the Order1 and set the case for conference on October 11, 2006; that as the parties failed to
amicably settle, the case was submitted for resolution; and that on October 25, 2006, respondent set
the case for arraignment after finding probable cause to indict complainant of the crimes charged.
Complainant asserted that respondent, being a judge of a first level court, no longer had authority to
conduct preliminary investigation under Rules 112 and 114 of the Rules on Criminal Procedure, as
amended.
On February 27, 2007, respondent filed her Comment praying for the summary dismissal of the
complaint. She argued that even with the amendment of Rules 112 and 114 the cases against
complainant are still within the jurisdiction of the MTC, considering that the crimes involved are Grave
Threats and Slight Physical Injuries which are defined and penalized by Articles 282 and 266,
respectively, of the Revised Penal Code, and governed by the Rules on Summary Procedure which no
longer requires the conduct of preliminary investigation. Respondent claimed that complainant is
merely using this administrative complaint to evade his own liability on the pending criminal cases.
The OCA Findings
In its August 28, 2007 Report, the OCA noted that the criminal cases filed against complainant are
indeed covered by the provisions of the 1991 Revised Rule on Summary Procedure. However, it found
that respondent did not observe Sections 12, 13, and 14 of the Rule which provide that after the
accused has submitted his counter-affidavit and the judge found reasonable ground to hold him for
trial, the court should set the case for arraignment and, thereafter, conduct a preliminary conference
before trial proper. Basic and elementary as the rules are, the OCA opined that respondent
displayed gross ignorance of the law and procedure when she conducted the conference before
complainant was arraigned.
Also, the OCA considered that this administrative matter is not the first time for respondent since she
had already been previously sanctioned in: Espaol v. Mupas (A.M. No. MTJ-01-1348, November 11,
2004, 442 SCRA 13), where she was meted a fine of P21,000 for gross ignorance of the law and
violation of the Code of Judicial Conduct; Loss of Court Exhibits at MTC-Dasmarias, Cavite (A.M. No.
MTJ-03-1491, June 8, 2005, 459 SCRA 313), where she was suspended for three (3) months without pay
for gross misconduct and gross ignorance of the law; Bitoon v. Toledo-Mupas (A.M. No. MTJ-05-1598,
August 9, 2005, 466 SCRA 17), where she was again suspended for three (3) months without salary
and benefits and fined in the amount of P40,000 for gross ignorance of the law and incompetence;2
and in Espaol v. Toledo-Mupas (A.M. No. MTJ-03-1462, April 19, 2007, 521 SCRA 403), where she was
finally ordered dismissed from service for gross ignorance of the law. Hence, it was proposed that
respondent be ordered to pay a fine in the amount of P40,000, to be deducted from whatever benefits
are due her.
The Courts Ruling
As correctly pointed out by complainant, judges of first level courts are no longer authorized to conduct
preliminary investigation. This is pursuant to the amendment made by this Court on August 30, 2005
in A.M. No. 05-8-26-SC Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal
Procedure by Removing the Conduct of Preliminary Investigation from Judges of the First Level Courts,
which took effect on October 3, 2005.3 Even so, the determination of whether respondent judge has
authority to conduct preliminary investigation in the criminal cases filed against complainant is not
decisive in the resolution of this administrative case. As the OCA fittingly observed, the Rules on
Summary Procedure govern the conduct of the criminal proceedings. Said Rules state:
Sec.12.Duty of court.
(a)If commenced by complaint.On the basis of the complaint and the affidavits and other evidence
accompanying the same, the court may dismiss the case outright for being patently without basis or
merit and order the release of the accused if in custody.

(b)If commenced by information.When the case is commenced by information, or is not dismissed

pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of
the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his
counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving
copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order.
The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of
the defense.
Sec.13.Arraignment and trial.Should the court, upon a consideration of the complaint or
information and the affidavits submitted by both parties, find no cause or ground to hold the accused
for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment
and trial.
If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a
plea of guilty, he shall forthwith be sentenced.
Sec.14.Preliminary conference.Before conducting the trial, the court shall call the parties to a
preliminary conference during which a stipulation of facts may be entered into, or the propriety of
allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other
matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. However,
no admission by the accused shall be used against him unless reduced to writing and signed by the
accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused.
Sec.15.Procedure of trial.At the trial, the affidavits submitted by the parties shall constitute the
direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected
to cross-examination, redirect or re-cross examination. Should the affiant fail to testify, his affidavit
shall not be considered as competent evidence for the party presenting the affidavit, but the adverse
party may utilize the same for any admissible purpose.
Except in rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was
previously submitted to the court in accordance with Section 12 hereof.
However, should a party desire to present additional affidavits or counter-affidavits as part of his direct
evidence, he shall so manifest during the preliminary conference, stating the purpose thereof. If
allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of the
defense shall be submitted to the court and served on the adverse party not later than three (3) days
after the termination of the preliminary conference. If the additional affidavits are presented by the
prosecution, the accused may file his counter-affidavits and serve the same on the prosecution within
three (3) days from such service.
Hence, the order of respondent for complainant to submit his counter-affidavit is but proper. The
directive should not be taken as a requirement of preliminary investigation but one simply intended to
comply with the provisions of the Rules that state that the affidavits submitted by the parties shall
constitute the direct testimonies of the witnesses who executed the same and that failure to submit
the same would not allow any witness to testify, except by way of rebuttal or surrebuttal.
In this case, however, respondent committed an error not subject of the complaint. As the OCA found,
instead of conducting the preliminary conference after arraignment and prior to trial, respondent held
the conference before complainant was arraigned. To the OCA, this constitutes gross ignorance of the
law considering that the rule itself is basic and elementary; hence, deserving of a fine amounting
to P40,000.
The Court does not agree.
For liability to attach for ignorance of the law, the assailed order, decision or actuation of the judge in
the performance of official duties must not only be found to be erroneous but must be established to
have been done with bad faith, dishonesty, hatred or some similar motive.4 In this case, the record is
wanting in any showing that respondent was moved by wrongful, improper or unlawful conduct in
setting the preliminary conference before the accused was arraigned. Complainant failed to
substantiate any bad faith, malice or corrupt purpose that may have been present at the time the
mistaken procedure was carried out by respondent.
Moreover, the fact that a judge failed to recognize a basic or elementary law or rule of procedure
would not automatically warrant a conclusion that he is liable for gross ignorance. What is significant is
whether the subject order, decision or actuation of the judge unreasonably defeated the very purpose
of the law or rule under consideration and unfairly prejudiced the cause of the litigants. This was not
present here. Note that even if the conference was held prior to the arraignment of complainant, the
resolution of respondent finding probable cause against him was issued on October 25, 2006, or just a
little over a month after he filed his counter-affidavit on September 22, 2006. Thus, no remarkable
delay in the proceedings resulted. Further, no substantial injury was caused to the accused or to the
private complainant in the criminal cases.
In light of these, the Court holds that an order to pay a fine of P40,000 would not be commensurate to
the error of respondent. A penalty of reprimand would be sufficient for the mistake. Considering,
however, respondents severance from judicial service as of last year, such penalty no longer finds
relevance.

This ruling does not grant tolerance to non-compliance with the rules of procedure. The Court even
now strongly reiterates that incumbent judges should relentlessly be mindful that the Rules on
Summary Procedure were issued for the purpose of achieving an expeditious and inexpensive
determination of cases5 and were espoused primarily to enforce the constitutional rights of litigants
to the speedy disposition of cases;6 hence, strict adherence to their letter and intent should at all
times be earnestly observed.
WHEREFORE, in view of the foregoing, the complaint is DISMISSED.
No costs.
SO ORDERED.
Puno (C.J., Chairperson), Carpio, Corona and Leonardo-De Castro, JJ., concur.
Complaint dismissed.
Note.Only in cases were the error is gross or patent, deliberate and malicious or incurred with
evident bad faith may administrative sanctions be imposed. (Floresta vs. Obiadas, 429 SCRA 270
[2004])

G.R. No. 170447.December 4, 2009.*

BIENVENIDO DIO and RENATO COMPARATIVO, petitioners, vs. PABLO OLIVAREZ, respondent.
Election Law; Election Offenses; Being mere deputies or agents of the Commission on Elections
(COMELEC), provincial or city prosecutors deputized by it are expected to act in accord with and not
contrary to or in derogation of its resolutions, directives or orders in relation to election cases that such
prosecutors are deputized to investigate and prosecutethey must proceed within the lawful scope of
their delegated authority.It is clear that the Chief State Prosecutor, all Provincial and City Fiscals,
and/or their respective assistants have been given continuing authority, as deputies of the
Commission, to conduct a preliminary investigation of complaints involving election offenses under the
election laws and to prosecute the same. Such authority may be revoked or withdrawn anytime by the
COMELEC, either expressly or impliedly, when in its judgment such revocation or withdrawal is
necessary to protect the integrity of the process to promote the common good, or where it believes
that successful prosecution of the case can be done by the COMELEC. Moreover, being mere deputies
or agents of the COMELEC, provincial or city prosecutors deputized by the COMELEC are expected to
act in accord with and not contrary to or in derogation of the resolutions, directives or orders of the
COMELEC in relation to election cases such prosecutors are deputized to investigate and prosecute.
Being mere deputies, provincial and city prosecutors, acting on behalf of the COMELEC, must proceed
within the lawful scope of their delegated authority.
Same; Same; When the Commission on Elections (COMELEC) Law Department, acting with authority of
the Commission on Elections (COMELEC) En Banc, directs the City Prosecutor of Paraaque to transmit
the entire records of the case to the Law Department, Commission on Elections, by the fastest means
available and to suspend further implementation of the questioned resolution until final resolution of
said appeal by the COMELEC En Banc, it has the effect of suspending the authority of the City
Prosecutor to prosecute the case.We stand by our ruling that it was COMELEC Resolution No. 7457
that revoked the deputation of the City Prosecutor of Paraaque. However, when the COMELEC Law
Department directed the City Prosecutor of Paraaque to transmit the entire records of the case to the
Law Department, Commission on Elections, Intramuros, Manila, by the fastest means available and to
suspend further implementation of the questioned resolution until final resolution of said appeal by the
Comelec En Banc, it had the effect of SUSPENDING THE AUTHORITY of the City Prosecutor to prosecute
the case. This was what we did not consider in our decision. We overlooked the fact that the order
issued by the COMELEC Law Department was with the authority of the COMELEC En Banc. In other
words, it was as if the COMELEC En Banc was the one that ordered the public prosecutor to transmit
the entire records and to suspend further implementation of the questioned resolution until it finally
resolves the appeal. As contained in the letter of the COMELEC Law Department, an appeal has been
filed before the COMELEC and has yet to be resolved. Since the COMELEC has already taken
cognizance of the appeal, and the public prosecutor has been directed to suspend further
implementation of the questioned resolution until final resolution of said appeal, it was but proper for
the City Prosecutor of Paraaque to have held in abeyance any action until after the resolution of the
appeal by the COMELEC En Banc. This suspension of delegated authority was made permanent and
this delegated authority was revoked upon issuance of COMELEC Resolution No. 7457 because of the
City Prosecutors willful disobedience of the order of the COMELEC En Banc, through the COMELEC Law
Department, to suspend further implementation of the questioned resolution until final resolution of
said appeal by the COMELEC En Banc.
Same; Same; In filing the Amended Informations despite the order to hold the proceedings in abeyance
until final resolution of said appeal, the City Prosecutor clearly exceeded the legal limit of its delegated
authorityany action made by the City Prosecutor in relation to the two criminal cases subsequent to
the issuance of the Commission on Elections (COMELEC) order, like the filing of the amended
informations and the amended informations themselves, is void and of no effect.In filing the
Amended Informations despite the order to hold the proceedings in abeyance until final resolution of
said appeal, the City Prosecutor of Paraaque clearly exceeded the legal limit of its delegated
authority. As a deputy of the COMELEC, the public prosecutor acted on its own and wantonly defied the

COMELECs directives/orders. For that reason, we rule that any action made by the City Prosecutor of
Paraaque in relation to the two criminal cases subsequent to the issuance of the COMELEC order
dated 11 October 2004, like the filing of the amended informations and the amended informations
themselves, is declared VOID and of NO EFFECT.
Same; Same; Informations filed in court sans lawful authority are nothing but mere scraps of paper
which have no value.The next query to be answered is: Did the trial court judge commit grave abuse
of discretion amounting to lack or excess of jurisdiction when he admitted the amended informations
despite full knowledge that the COMELEC ordered the City Prosecutor of Paraaque to suspend further
implementation of the questioned resolution until final resolution of the appeal before it? We rule that
he did. As ruled above, all actions of the City Prosecutor of Paraaque after the COMELECs issuance of
the order to transmit the entire records and to suspend all further proceedings until it has finally
resolved the appeal before it, are void and of no effect. Consequently, the amended informations filed
before the trial court are nothing but mere scraps of paper which have no value, for the same were
filed sans lawful authority.
Same; Same; The trial courts knowledge that the filing of the amended informations was done by the
public prosecutor in excess of his delegated authority no longer gives it the discretion as to whether or
not to accept the amended informationsthe only option it had was not to admit the amended
informations as a sign of respect to the Commission on Elections (COMELEC) which already had taken
cognizance of the accuseds appeal.We are not unmindful of the settled jurisprudence that once a
complaint or information is filed in court, any disposition of the case as to its dismissal, or the
conviction or acquittal of the accused, rests on the sound discretion of the said court, as it is the best
and sole judge of what to do with the case before it. Under the circumstances obtaining in this case,
we hold that this settled jurisprudence does not apply in this case. The trial courts knowledge that the
filing of the amended informations was done by the public prosecutor in excess of his delegated
authority no longer gives him the discretion as to whether or not accept the amended informations.
The only option the trial court had was not to admit the amended informations as a sign of deference
and respect to the COMELEC, which already had taken cognizance of respondents appeal. This, the
trial court did not choose. It insisted on admitting the amended informations, which were patent
nullities for being filed contrary to the directives of the COMELEC. Necessarily, all actions and rulings of
the trial court arising from these amended informations must likewise be invalid and of no effect.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
Jose S. Maronilla for petitioners.
Leo Luis P. Mendoza, Ma. Luz S. Arzaga Mendoza and Jonathan A. De Guzman for respondent.
RESOLUTION
CHICO-NAZARIO,J.:
Before Us is a Motion for Reconsideration1 of Our Decision2 filed by respondent Pablo Olivarez.
In Our decision dated 23 June 2009, We found that the public prosecutor, in filing the Amended
Informations, did not exceed the authority delegated by the Commission on Elections (COMELEC). We
likewise ruled that no abuse of discretion could be attributed to Judge Fortunito L. Madrona (Madrona)
when he issued the Orders dated 9 March 2005 and 31 March 2005 for the arrest of respondent due to
his failure to be present for his arraignment and for the confiscation of his cash bond.
We disposed of the case as follows:
WHEREFORE, the instant appeal is GRANTED. The Decision of the Court of Appeals dated 28
September 2005 in CA-G.R. SP No. 89230 is REVEERSED. This Court orders the continuation of the
proceedings in Criminal Cases No. 04-1104 and No. 04-1105 before the RTC, the prosecution of which
shall be under the direction of the Law Department of the COMELEC. No. costs.3
In order to fully understand our resolution of the instant motion, we quote the factual antecedents as
narrated in our decision:
Petitioners instituted a complaint for vote buying against respondent Pablo Olivarez. Based on the
finding of probable cause in the Joint Resolution issued by Assistant City Prosecutor Antonietta PabloMedina, with the approval of the city prosecutor of Paraaque, two Informations were filed before the
RTC on 29 September 2004 charging respondent Pablo Olivarez with Violation of Section 261,
paragraphs a, b and k of Article XXII of the Omnibus Election Code x x x.
xxxx
The arraignment of the respondent was initially set on 18 October 2004.
On 7 October 2004, respondent filed before the Law Department of the Commission on Elections
(COMELEC) an [a]ppeal of [the] Joint Resolution of the City Prosecutor of Paraaque City with Motion
to Revoke Continuing Authority pursuant to Section 10, Rule 34 of the 1993 COMELEC Rules of
Procedure. Respondent argued that the pendency of the appeal of the Joint Resolution before the
COMELEC should prevent the filing of the Informations before the RTC as there could be no final finding

of probable cause until the COMELEC had resolved the appeal. Moreover, he argued that the charges
made against him were groundless.
In a letter dated 11 October 2004, the Law Department of the COMELEC directed the city prosecutor to
transmit or elevate the entire records of the case and to suspend further implementation of the Joint
Resolution dated 20 September 2004 until final resolution of the said appeal before the COMELEC en
banc.
On 11 October 2004, respondent filed a Motion to Quash the two criminal informations on the ground
that more than one offense was charged therein, in violation of Section 3(f), Rule 117 of the Rules of
Court, in relation to Section 13, Rule 110 of the Rules of Court. This caused the resetting of the
scheduled arraignment on 18 October 2004 to 13 December 2004.
Before Judge Madrona could act on the motion to quash, Assistant Prosecutor Pablo-Medina, with the
approval of the city prosecutor, filed on 28 October 2004 its Opposition to the Motion to Quash and
Motion to Admit Amended Informations. The Amended Informations sought to be admitted charged
respondent with violation of only paragraph a, in relation to paragraph b, of Section 261, Article XXII of
the Omnibus Election Code.
On 1 December 2004, Judge Madrona issued an Order resetting the hearing scheduled on 13
December 2004 to 1 February 2005 on account of the pending Motion to Quash of the respondent and
the Amended Informations of the public prosecutor.
On 14 December 2004, respondent filed an Opposition to the Admission of the Amended
Informations, arguing that no resolution was issued to explain the changes therein, particularly the
deletion of paragraph k, Section 261, Article XXII of the Omnibus Election Code. Moreover, he the city
prosecutor was no longer empowered to amend the informations, since the COMELEC had already
directed it to transmit the entire records of the case and suspend the hearing of the cases before the
RTC until the resolution of the appeal before the COMELEC en banc.
On 12 January 2005, Judge Madrona issued an order denying respondents Motion to Quash dated 11
October 2004, and admitted the Amended Informations dated 25 October 2004. Respondent filed an
Urgent Motion for Reconsideration dated 20 January 2005 thereon.
On 1 February 2005, Judge Madrona reset the arraignment to 9 March 2005, with a warning that the
arraignment would proceed without any more delay, unless the Supreme Court would issue an
injunctive writ.
On 9 March 2005, respondent failed to appear before the RTC. Thereupon, Judge Madrona, in open
court, denied the Motion for Reconsideration of the Order denying the Motion to Quash and admitting
the Amended Informations, and ordered the arrest of respondent and the confiscation of the cash
bond.
On 11 March 2005, respondent filed an Urgent Motion for Reconsideration and/or to Lift the Order of
Arrest of Accused Dr. Pablo Olivarez, which was denied in an Order dated 31 March 2005. The Order
directed that a bench warrant be issued for the arrest of respondent to ensure his presence at his
arraignment.
On 5 April 2005, the Law Department of the COMELEC filed before the RTC a Manifestation and Motion
wherein it alleged that pursuant to the COMELECs powers to investigate and prosecute election
offense cases, it had the power to revoke the delegation of its authority to the city prosecutor.
Pursuant to these powers, the COMELEC promulgated Resolution No. 7457 dated 4 April 2005. The
dispositive portion of Resolution No. 7457 states:
Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE and ADOPT
the recommendation of the Law Department as follows:
1.To revoke the deputation of the Office of the City Prosecutor of Paraaque to investigate and
prosecute election offense cases insofar as I.S. Nos. 04-2608 and 04-2774, entitled Renato
Comparativo vs. Remedios Malabiran and Pablo Olivarez and Bienvenido et al. vs. Sally Rose Saraos,
et al., respectively, are concerned; and
2.To direct the Law Department to handle the prosecution of these cases and file the appropriate
Motion and Manifestation before the Regional Trial Court of Paraaque, Branch 274, to hold in
abeyance further proceedings on Criminal Case Nos. 1104 and 1105 until the Commission has acted
on the appeal of respondents.
Let the Law Department implement this Resolution.
Thus, the Law Department of the COMELEC moved (1) that the RTC hold in abeyance further
proceedings in Criminal Cases No. 04-1104 and No. 04-1105 until the COMELEC has acted on
respondents appeal; and (2) to revoke the authority of the city prosecutor of Paraaque to prosecute
the case, designating therein the lawyers from the Law Department of the COMELEC to prosecute
Criminal Cases No. 04-1104 and No. 04-1105.
On 8 April 2005, respondent filed a Special Civil Action for Certiorari before the Court of Appeals
docketed as CA-G.R. SP No. 89230, assailing the Orders, dated 12 January 2005, 9 March 2005 and 31
March 2005 of the RTC. The appellate court granted the appeal in a Decision dated 28 September 2005
declaring that the COMELEC had the authority to conduct the preliminary investigation of election

offenses and to prosecute the same. As such, the COMELEC may delegate such authority to the Chief
State Prosecutor, provincial prosecutors, and city prosecutors. The COMELEC, however, has the
corresponding power, too, to revoke such authority to delegate. Thus, the categorical order of the
COMELEC to suspend the prosecution of the case before the RTC effectively deprived the city
prosecutor of the authority to amend the two informations. The appellate court also pronounced that
Judge Madrona erred in admitting the amended informations, since they were made in excess of the
delegated authority of the public prosecutor, and his orders to arrest the respondent and to confiscate
the latters cash bond were devoid of legal basis. The fallo of the Decision reads:
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the petition at bench must be, as it hereby is,
GRANTED. The impugned Orders of the public respondent Judge Fortunito L. Madrona of Branch 274,
Regional Trial Court of Paraaque City dated 12 January 2005, 9 March 2005, and 31 March 2005 are
hereby VACATED and NULLIFIED. The Temporary Restraining Order issued in the instant petition is
made PERMANENT. Without costs in this instance.4
In finding that the public prosecutor of Paraaque, in filing the Amended Informations, did not exceed
the authority delegated by the Commission on Elections (COMELEC), we said that the public
prosecutors delegated authority to prosecute the case was not yet revoked when said amended
informations were filed on 28 October 2004, since the authority was revoked only on 4 April 2005 when
COMELEC Resolution No. 7457 was issued. We explained that the letter from the COMELEC Law
Department dated 11 October 2004, which directed the public prosecutor to transmit the entire
records of the case by the fastest means available and to suspend further implementation of the
questioned resolution (finding of probable cause to charge respondent with Violation of Section 261,
paragraphs a, b and k of Article XXII of the Omnibus Election Code) until final resolution of
respondents appeal therefrom by the COMELEC En Banc did not revoke said delegated authority. We
added that the filing of the amended informations was not made in defiance of the instructions dated
11 October 2004, but was rather an act necessitated by the developments of the case. We said that
the instructions were intended not to have the public prosecutor abandon the prosecution of the case
and negligently allow its dismissal by not filing the Amended Informations. By filing the amended
informations, the public prosecutor had avoided the undesirable situation which would have forced the
COMELEC to re-file the cases, waste government resources and delay the administration of justice.
As regards Judge Madrona, we ruled he did not abuse his discretion when he issued the Orders dated 9
March 2005 and 31 March 2005 for the arrest of respondent due to his failure to be present for his
arraignment and for the confiscation of his cash bond. Having acquired jurisdiction over the cases and
the persons of the accused, the disposition thereof, regardless of what the fiscal may feel is the proper
course of action, is within the exclusive jurisdiction, competence and discretion of the court.
We further ruled that pursuant to Section 11 of Rule 116 of the 2000 Rules on Criminal Procedure, the
arraignment of respondent cannot be suspended indefinitely, for the reviewing authority has at most
60 days within which to decide the appeal. The arraignment of respondent was initially scheduled on
18 October 2004, but same was reset three times. A motion to quash the two informations was filed on
11 October 2004. On 12 January 2005, Judge Madrona denied the Motion to Quash and admitted the
Amended Informations. Respondent sought the reconsideration of said order. On the scheduled
arraignment on 9 March 2005, respondent failed to appear, resulting in the denial of his motion for
reconsideration of the order denying the motion to quash and admitting the amended informations,
the ordering of his arrest, and the confiscation of his cash bond. We said that five months is more than
the sixty days allowed by the rules for which arraignment may be suspended and is ample time to
obtain from COMELEC a reversal of the Joint Resolution finding probable cause.
Respondent anchors his motion for reconsideration on two grounds, to wit:
a.The Honorable Court, with due respect, is incorrect in finding that the public prosecutor (of
Paraaque City) did not exceed the authority delegated by the COMELEC when they filed the subject
Amended Informations against herein Respondent; and
xxxx
b.The Honorable Court, with due respect, incorrectly ruled that Judge Madrona of the Regional Trial
Court of Paraaque City, acted, in accordance with law when he admitted the two (2) Amended
Informations and dismissed the Respondents Motion to Quash, as the ground stated thereinthe
informations charged more than one offensecould no longer be sustained, and ordered the arrest of
the Respondent due to his alleged failure to be present for his arraignment and for the confiscation of
his cash bond (at page 11 of the Assailed Decision).5
On the first ground, respondent argues that this Court erred in not construing the directive of the
COMELEC to the public prosecutor of Paraaque Cityto transmit the entire records of the case to the
COMELEC Law Department by the fastest means available and to suspend further implementation of
the questioned resolution until final resolution of the appeal by the COMELEC En Banc as not a
revocation of the public prosecutors delegated authority. He further argues that the intention to
revoke the delegated authority given to the public prosecutor is crystal clear. The order directing the
transmission of the entire records deprives the public prosecutor the means and bases to prosecute
the criminal cases. He adds that the directive to suspend further implementation of the questioned
resolution until final resolution of the appeal by the COMELEC En Banc is an express or, at the very
least, an implied indication of revocation of the delegated authority inasmuch as the public prosecutor
has been prevented, warned and stripped of any authority and control over the prosecution of the
criminal cases. In not construing the mandatory directive as a revocation of the delegated authority,

respondent argues that this Court violated the Pro Reo Doctrine6 and the Rule of Lenity.7 Since the
COMELEC directive is capable of two interpretations, respondent argues that we should have adopted
the interpretation which is favorable to him.
Moreover, respondent maintains that since the Court liberally applied the rules when it did not dismiss
petitioners defective petition, it should likewise apply the liberal and relaxed interpretation of the
COMELEC directive in favor of respondent by finding that the COMELEC directive revoked the
delegated authority of the public prosecutor. By filing the amended informations, despite receipt of the
COMELEC directive issued on 13 October 2004 which was confirmed by COMELEC Resolution No. 7457,
the public prosecutor defied the entity from which it derived its authority and power to prosecute the
election cases involved. It being made in defiance of the COMELEC directive, all acts of the public
prosecutor are void and of no effect.
On the second ground, respondent argues that we erred in ruling that the court a quo acted in
accordance in law when he admitted the two amended informations and dismissed his motion to quash
and ordered his arrest and confiscation of his cash bond. In support thereof, he contends that since the
trial court had knowledge of the COMELEC directive dated 11 October 2004, stripping the public
prosecutor of his delegated authority to prosecute the criminal cases, the trial court should have
rejected the amended information as there was no right that can be invoked from a defective/illegal
source.
Moreover, respondent contends that Section 11, Rule 116 of the 2000 Rules of Criminal Procedure does
not apply to this case because the application thereof presupposes a resolution issued by a public
prosecutor who has the authority to prosecute. Since the public prosecutor has been deprived of its
delegated authority by virtue of the 11 October 2004 directive, such directive has retroactive
application it being favorable to him. This being the case, there is no Joint Resolution of the City
Prosecutor to speak of because the same was issued without authority.
The resolution of the instant motion boils down to whether the City Prosecutor defied the order or
directive of the COMELEC when it filed the amended informations?
After giving the records of the case and the arguments adduced by respondent a second hard look, we
grant the motion.
The Constitution, particularly Article IX, Section 20, empowers the COMELEC to investigate and, when
appropriate, prosecute election cases.8
Under Section 265 of the Omnibus Election Code, the COMELEC, through its duly authorized legal
officers has the exclusive power to conduct preliminary investigation of all election offenses punishable
under the Omnibus Election Code, and to prosecute the same. The COMELEC may avail of the
assistance of other prosecuting arms of the government. Section 265 reads:
Section265.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.
Section 2, Rule 34 of the COMELEC Rules of Procedure details the continuing delegation of authority to
other prosecuting arms of the government, which authority the COMELEC may revoke or withdraw
anytime in the proper exercise of its judgment. It provides:
Section2.Continuing Delegation of Authority to Other Prosecution Arms of the Government.The
Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby
given continuing authority, as deputies of the Commission, to conduct preliminary investigation of
complaints involving election offenses under the election laws which may be filed directly with them,
or which may be indorsed to them by the Commission or its duly authorized representative and to
prosecute the same. Such authority may be revoked or withdrawn any time by the Commission
whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the
Commission, promote the common good, or when it believes that successful prosecution of the case
can be done by the Commission.
Furthermore, Section 10 of the COMELEC Rules of Procedure gives the COMELEC the power to motu
proprio revise, modify and reverse the resolution of the Chief State Prosecutor and/or provincial/city
prosecutors. Said section reads:
Section10.Appeals from the Action of the State Prosecutor, Provincial or City Fiscal.Appeals from
the resolution of the State Prosecutor or Provincial or City Fiscal on the recommendation or resolution
of investigating officers may be made only to the Commission within ten (10) days from receipt of the
resolution of said officials, provided, however that this shall not divest the Commission of its power to
motu proprio review, revise, modify or reverse the resolution of the chief state prosecutor and/or
provincial/city prosecutors. The decision of the Commission on said appeals shall be immediately
executory and final.
From the foregoing, it is clear that the Chief State Prosecutor, all Provincial and City Fiscals, and/or
their respective assistants have been given continuing authority, as deputies of the Commission, to
conduct a preliminary investigation of complaints involving election offenses under the election laws

and to prosecute the same. Such authority may be revoked or withdrawn anytime by the COMELEC,
either expressly or impliedly, when in its judgment such revocation or withdrawal is necessary to
protect the integrity of the process to promote the common good, or where it believes that successful
prosecution of the case can be done by the COMELEC. Moreover, being mere deputies or agents of the
COMELEC, provincial or city prosecutors deputized by the COMELEC are expected to act in accord with
and not contrary to or in derogation of its resolutions, directives or orders of the COMELEC in relation
to election cases that such prosecutors are deputized to investigate and prosecute.9 Being mere
deputies, provincial and city prosecutors, acting on behalf of the COMELEC, must proceed within the
lawful scope of their delegated authority.
In our assailed decision, we ruled that the letter dated 11 October 2004 of Dir. Alioden D. Dalaig of the
COMELEC Law Department, which reads in part:
In this connection, you are hereby directed to transmit the entire records of the case to the Law
Department, Commission on Elections, Intramuros, Manila by the fastest means available. You are
further directed to suspend further implementation of the questioned resolution until final resolution of
said appeal by the Comelec En Banc.
did not revoke the continuing authority granted to the City Prosecutor of Paraaque, for it was
COMELEC Resolution No. 7457 issued on 4 April 2005 that effectively revoked the deputation of the
Office of the City Prosecutor of Paraaque.
We stand by our ruling that it was COMELEC Resolution No. 7457 that revoked the deputation of the
City Prosecutor of Paraaque. However, when the COMELEC Law Department directed the City
Prosecutor of Paraaque to transmit the entire records of the case to the Law Department, Commission
on Elections, Intramuros, Manila, by the fastest means available and to suspend further
implementation of the questioned resolution until final resolution of said appeal by the Comelec En
Banc, it had the effect of SUSPENDING THE AUTHORITY of the City Prosecutor to prosecute the case.
This was what we did not consider in our decision. We overlooked the fact that the order issued by the
COMELEC Law Department was with the authority of the COMELEC En Banc. In other words, it was as if
the COMELEC En Banc was the one that ordered the public prosecutor to transmit the entire records
and to suspend further implementation of the questioned resolution until it finally resolves the appeal.
As contained in the letter of the COMELEC Law Department, an appeal has been filed before the
COMELEC and has yet to be resolved. Since the COMELEC has already taken cognizance of the appeal,
and the public prosecutor has been directed to suspend further implementation of the questioned
resolution until final resolution of said appeal, it was but proper for the City Prosecutor of Paraaque to
have held in abeyance any action until after the resolution of the appeal by the COMELEC En Banc.
This suspension of delegated authority was made permanent and this delegated authority was revoked
upon issuance of COMELEC Resolution No. 7457 because of the City Prosecutors willful disobedience of
the order of the COMELEC En Banc, through the COMELEC Law Department, to suspend further
implementation of the questioned resolution until final resolution of said appeal by the COMELEC En
Banc.
It cannot also be disputed that the COMELEC Law Department has the authority to direct, nay, order
the public prosecutor to suspend further implementation of the questioned resolution until final
resolution of said appeal for it is speaking on behalf of the COMELEC. The COMELEC Law Department,
without any doubt, is authorized to do this as shown by the pleadings it has filed before the trial court.
If the COMELEC Law Department is not authorized to issue any directive/order or to file the pleadings
on behalf of the COMELEC, the COMELEC En Banc itself would have said so. This, the COMELEC En
Banc did not do.
The records are likewise bereft of any evidence showing that the City Prosecutor of Paraaque doubted
such authority. It knew that the COMELEC Law Department could make such an order, but the public
prosecutor opted to disregard the same and still filed the Amended Informations contrary to the order
to hold the proceedings in abeyance until a final resolution of said appeal is made by the COMELEC En
Banc.The abuse of authority by the City Prosecutor of Paraaque was aptly explained by the Court of
Appeals:
In the case at bench, public respondent city prosecutor clearly exceeded his authority as a COMELECdesignated prosecutor when he amended the two informations. For there is hardly any doubt or
question that public respondent city prosecutor had already been duly advised and informed of the
directive of the COMELEC days before he filed the amended informations. But instead of filing a motion
to suspend proceedings and hold abeyance the issuance of warrants of arrest against petitioner and to
defer the latters arraignment until after the appeal shall have been resolved, public respondent city
prosecutor took it upon himself to substitute his own judgment or discretion for that of the COMELEC,
by proceeding with the prosecution of the criminal cases. Such act was a clear defiance of a direct and
explicit order of the COMELEC, which was to suspend further implementation of the questioned
resolution until the final resolution of said appeal by the COMELEC En Banc. Indubitably, there was, on
the part of the public respondent city prosecutor, inordinate, if not indecent, haste in the filing of the
amended informations, thereby depriving petitioner of due process.
x x x However, despite the clear and categorical directive of the COMELEC to transmit or elevate the
records of the case by the fastest means available, the public respondent city prosecutor took his
time to forward the records of the case. In fact, it was only on December 11, 2004 that he forwarded
the records,and these were not even the original copies, but mere photocopies.

Quite irremissibly, his defiance of the order of the COMELEC, by itself, more than sufficed to warrant
the revocation of the authority delegated to him.
Considering that it was patently beyond his powers or authority to do such act, the amended
informations are deemed scraps of papers, which have been stripped bare of their legal effect
whatsoever.10
In filing the Amended Informations despite the order to hold the proceedings in abeyance until final
resolution of said appeal, the City Prosecutor of Paraaque clearly exceeded the legal limit of its
delegated authority. As a deputy of the COMELEC, the public prosecutor acted on its own and wantonly
defied the COMELECs directives/orders. For that reason, we rule that any action made by the City
Prosecutor of Paraaque in relation to the two criminal cases subsequent to the issuance of the
COMELEC order dated 11 October 2004, like the filing of the amended informations and the amended
informations themselves, is declared VOID and of NO EFFECT.
The next query to be answered is: Did the trial court judge commit grave abuse of discretion
amounting to lack or excess of jurisdiction when he admitted the amended informations despite full
knowledge that the COMELEC ordered the City Prosecutor of Paraaque to suspend further
implementation of the questioned resolution until final resolution of the appeal before it?
We rule that he did.
As ruled above, all actions of the City Prosecutor of Paraaque after the COMELECs issuance of the
order to transmit the entire records and to suspend all further proceedings until it has finally resolved
the appeal before it, are void and of no effect. Consequently, the amended informations filed before
the trial court are nothing but mere scraps of paper which have no value, for the same were filed sans
lawful authority.
As early as 14 December 2004, through respondents Opposition to the Admission of the Amended
Informations, the trial court judge had known that the COMELEC had directed the City Prosecutor of
Paraaque to transmit the entire records of the case to the COMELEC by the fastest means available
and to suspend further implementation of the questioned resolution until final resolution of
respondents appeal. He knew that the City Prosecutor no longer had any authority to amend the
original informations. Despite this, the trial court judge still admitted the amended informations. In
doing so, the trial judge committed grave abuse of discretion amounting to lack of excess or
jurisdiction.
We are not unmindful of the settled jurisprudence that once a complaint or information is filed in court,
any disposition of the case as to its dismissal, or the conviction or acquittal of the accused, rests on
the sound discretion of the said court, as it is the best and sole judge of what to do with the case
before it.11 Under the circumstances obtaining in this case, we hold that this settled jurisprudence
does not apply in this case. The trial courts knowledge that the filing of the amended informations was
done by the public prosecutor in excess of his delegated authority no longer gives him the discretion
as to whether or not accept the amended informations. The only option the trial court had was not to
admit the amended informations as a sign of deference and respect to the COMELEC, which already
had taken cognizance of respondents appeal. This, the trial court did not choose. It insisted on
admitting the amended informations, which were patent nullities for being filed contrary to the
directives of the COMELEC. Necessarily, all actions and rulings of the trial court arising from these
amended informations must likewise be invalid and of no effect.
As it stands, since there are no amended informations to speak of, the trial court has no basis for
denying respondents motion to quash. Consequently, there can be no arraignment on the amended
informations. In view of this, there can be no basis for ordering the arrest of respondent and the
confiscation of his cash bond.
For having been issued with grave abuse of discretion, amounting to lack or excess of jurisdiction, the
trial courts ordersdated 12 January 2005 denying the Motion to Quash and admitting the amended
information; 9 March 2005 denying the Motion for Reconsideration of the Order denying the Motion to
Quash, admitting the amended informations, and ordering the arrest of the respondent and the
confiscation of his cash bond; and 31 March 2005 denying respondents Urgent Motion for
Reconsideration and/or to lift the Order of Arrest, are declared void and of no effect.
WHEREFORE, the instant motion for reconsideration filed by respondent Pablo Olivarez is GRANTED,
and our assailed decision dated 23 June 2009 is RECONSIDERED and SET ASIDE. The Decision of the
Court of Appeals dated 28 September 2005 in CA-G.R. SP No. 89230 is REINSTATED. The amended
informations filed by the City

318
SUPREME COURT REPORTS ANNOTATED
Ladlad vs. Velasco
G.R. Nos. 172070-72. June 1, 2007.*
VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C. CASAMBRE,
petitioners, vs. SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR

JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR
IRWIN A. MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the
Department of Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234,
JUSTICE SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as
Chief, Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G.
TANIGUE, respondents.
G.R. Nos. 172074-76. June 1, 2007.*
LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIO, CRISPIN B. BELTRAN,
and RAFAEL V. MARIANO, petitioners, vs. RAUL M. GON
ZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUO, in his capacity
as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y. VELASCO,
JOSELITA C. MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA (Panel),
RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate for Investigation and
Detective Management (DIDM), YOLANDA G. TANIGUE, in her capacity as Acting Executive Officer of
DIDM, the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE (PNP), respondents.
G.R. No. 175013. June 1, 2007.*
CRISPIN B. BELTRAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in
his capacity as the Secretary of Justice and overall superior of the Public Prosecutors, HONORABLE
ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of Regional Trial Court of Makati City,
Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity as Presiding Judge of Regional Trial
Court of Makati City, Branch 150, respondents.
Criminal Procedure; Inquests; Arrests; Inquest proceedings are proper only when the accused has been
lawfully arrested without warrant.Inquest proceedings are proper only when the accused has been
lawfully arrested without warrant. Section 5, Rule 113 of the Revised Rules of Criminal Procedure
provides the instances when such warrantless arrest may be effected, thus: Arrest without warrant;
when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in
his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense; (b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and x x x x In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.
Same; Same; Same; Where the joint affidavit of the arresting officers states that a person was arrested
without warrant for Inciting to Sedition, the inquest prosecutor could only conduct an inquest for said
crime and no otherwhen another group of prosecutors subject the same arrested person to a second
inquest proceeding for Rebellion, they overstep their authority rendering the second inquest void.The
joint affidavit of Beltrans arresting officers states that the officers arrested Beltran, without a warrant,
for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted
as he did conductan inquest for Inciting to Sedition and no other. Consequently, when another
group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped
their authority rendering the second inquest void. None of Beltrans arresting officers saw Beltran
commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and
circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe
that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they
saw and heard Beltran make an allegedly seditious speech on 24 February 2006.
Same; Preliminary Investigations; In the few exceptional cases where the prosecutor abused his
discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause, thus
denying the accused his right to substantive and procedural due process, the Supreme Court has not
hesitated to intervene and exercise its review power under Rule 65 to overturn the prosecutors
findings.Probable cause is 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. To accord respect to the discretion
granted to the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with
the prosecutors determination of probable cause for otherwise, courts would be swamped with
petitions to review the prosecutors findings in such investigations. However, in the few exceptional
cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to
support a finding of probable cause, thus denying the accused his right to substantive and procedural
due process, we have not hesitated to intervene and exercise our review power under Rule65 to
overturn the prosecutors findings. This exception holds true here.
Criminal Law; Rebellion; Elements; By its nature, rebellion is a crime of the masses or the multitudes
involving crowd action done in furtherance of a political end.The elements of the offense are: 1. That
there be a (a) public uprising and (b) taking arms against the Government; and 2. That the purpose of
the uprising or movement is either(a) to remove from the allegiance to said Government or its laws:
(1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed
forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives. Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd
action done in furtherance of a political end.

Same; Same; Mere membership in the Communist Party of the Philippines (CPP) does not constitutes
rebellion.Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as Chairman,
Kilusang Mayo Uno (KMU). Assuming that Beltran is a member of the CPP, which Beltran does not
acknowledge, mere membership in the CPP does not constitute rebellion. As for the alleged funding of
the CPPs military equipment from Beltrans congressional funds, Cachuelas affidavit merely contained
a general conclusion without any specific act showing such funding. Cachuela merely alleged that ang
mga ibang mga pondo namin ay galing sa mga party list na naihalal sa Kongreso tulad ng BAYAN
MUNApimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x. Such a general conclusion does
not establish probable cause.
Same; Same; Conspiracy to Commit Rebellion; Attendance in meetings to discuss, among others, plans
to bring down a government is a mere preparatory step to commit the acts constituting Rebellion
under Article 134.Respondent prosecutors later tried to remedy this fatal defect by motu proprio
submitting to Branch 137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans
motion for judicial determination of probable cause. Such belated submission, a tacit admission of the
dearth of evidence against Beltran during the inquest, does not improve the prosecutions case.
Assuming them to be true, what the allegations in Fuentes affidavit make out is a case for Conspiracy
to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion under
Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a
mere preparatory step to commit the acts constituting Rebellion under Article 134. Even the
prosecution acknowledged this, since the felony charged in the Information against Beltran and San
Juan in Criminal Case No. 06-452 is Conspiracy to Commit Rebellion and not Rebellion. The Information
merely alleged that Beltran, San Juan, and others conspired to form a tactical alliance to commit
Rebellion. Thus, the RTC Makati erred when it nevertheless found probable cause to try Beltran for
Rebellion based on the evidence before it.
Preliminary Investigations; The Court may enjoin the prosecution of offenses if, among others, the
same is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive
manner or (b) to afford adequate protection to constitutional rights.As in the determination of
probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice rooted on
public interest as the speedy closure of criminal investigations fosters public safety. However, such
relief in equity may be granted if, among others, the same is necessary (a) to prevent the use of the
strong arm of the law in an oppressive and vindictive manner or (b) to afford adequate protection to
constitutional rights. The case of the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under
these exceptions.
Same; The prosecutors, by peremptorily issuing the subpoenas to petitioners, tolerating the
complainants antics during the investigation, and distributing copies of a witness affidavit to
members of the media knowing that petitioners have not had the opportunity to examine the charges
against them, not only trivialized the investigation but also lent credence to petitioners claim that the
entire proceeding was a sham.Section 3(b) of Rule 112 mandates that the prosecutor, after receiving
the complaint, must determine if there are grounds to continue with the investigation. If there is none,
he shall dismiss the case, otherwise he shall issue a subpoena to the respondents. Here, after
receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners
requiring them to appear at the DOJ office on 13 March 2006 to secure copies of the complaints and
its attachments. During the investigation, respondent prosecutors allowed the CIDG to present a
masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco
proceeded to distribute copies of Fuentes affidavit not to petitioners or their counsels but to members
of the media who covered the proceedings. Respondent prosecutors then required petitioners to
submit their counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that
petitioners received the complete copy of the attachments to the CIDG letters. These uncontroverted
facts belie respondent prosecutors statement in the Order of 22 March 2006 that the preliminary
investigation was done in accordance with the Revised Rules o[f] Criminal Procedure. Indeed, by
peremptorily issuing the subpoenas to petitioners, tolerating the complainants antics during the
investigation, and distributing copies of a witness affidavit to members of the media knowing that
petitioners have not had the opportunity to examine the charges against them, respondent
prosecutors not only trivialized the investigation but also lent credence to petitioners claim that the
entire proceeding was a sham.
Same; Due Process; A preliminary investigation is the crucial sieve in the criminal justice system which
spells for an individual the difference between months if not years of agonizing trial and possibly jail
term, on the one hand, and peace of mind and liberty, on the other hand.A preliminary investigation
is the crucial sieve in the criminal justice system which spells for an individual the difference between
months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and
liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not
a mere formal or technical right but a substantive one, forming part of due process in criminal
justice. This especially holds true here where the offense charged is punishable by reclusion perpetua
and may be non-bailable for those accused as principals.
Same; Same; The Supreme Courts power to enjoin prosecutions cannot be frustrated by the simple
filing of the Information with the trial court.Contrary to the submission of the Solicitor General,
respondent prosecutors filing of the Information against petitioners on 21 April 2006 with Branch 57 of
the RTC Makati does not moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to
enjoin prosecutions cannot be frustrated by the simple filing of the Information with the trial court.

Same; Same; The Secretary of Justices statement that the Department of Justice will just declare
probable cause and leave the matter up to the Court to decide clearly shows pre-judgment, a
determination to file the Information even in the absence of probable cause.We find merit in
petitioners doubt on respondent prosecutors impartiality. Respondent Secretary of Justice, who
exercises supervision and control over the panel of prosecutors, stated in an interview on 13 March
2006, the day of the preliminary investigation, that, We [the DOJ] will just declare probable cause,
then its up to the [C]ourt to decide x x x. Petitioners raised this issue in their petition, but
respondents never disputed the veracity of this statement. This clearly shows pre-judgment, a
determination to file the Information even in the absence of probable cause.
Same; Same; The Court cannot emphasize too strongly that prosecutors should not allow, and should
avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly,
for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of
observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike,
whether rich or poor, weak or strong, powerless or mighty.The obvious involvement of political
considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings
to mind an observation we made in another equally politically charged case. We reiterate what we
stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions
in general and preliminary investigations in particular, thus: [W]e cannot emphasize too strongly that
prosecutors should not allow, and should avoid, giving the impression that their noble office is being
used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive
of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear
or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only
by strict adherence to the established procedure may be publics perception of the impartiality of the
prosecutor be enhanced.
SPECIAL CIVIL ACTIONS in the Supreme Court. Prohibition and Certiorari.
The facts are stated in the opinion of the Court.
Public Interest Law Center for R.C. Casambre and N. Santiago and for petitioners in G.R. Nos.
172074-175013.
Roque & Butuyan Law Office for petitioners Casio in G.R. Nos. 172074-76.
Free Legal Assistance Group lead counsel for V.P. Ladlad and R. Echanis.
Francisco Law Office and Yorac, Arroyo, Chua, Caedo & Coronel collaborating counsels for V.P.
Ladlad.
The Solicitor General for respondents.
CARPIO, J.:
The Case
These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners
prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the
Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of petitioners
cases.
The Facts
Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza
L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casio (Casio),
and Rafael V. Mariano (Mariano),1 are members of the House of Representatives representing various
party-list groups.2 Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face
charges for Rebellion under Article 134 in relation to Article 135 of the Revised Penal Code in two
criminal cases pending with the RTC Makati.
G.R. No. 175013 (The Beltran Petition)
Following the issuance by President Gloria MacapagalArroyo of Presidential Proclamation No. 1017 on
24 February 2006 declaring a State of National Emergency, police officers3 arrested Beltran on 25
February 2006, while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon
City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the
crime for which he was arrested. On that evening, Beltran was subjected to an inquest at the Quezon
City Hall of Justice for Inciting to Sedition under Article 142 of the Revised Penal Code based on a
speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the occasion of
the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltrans
arresting officers who claimed to have been present at the rally. The inquest prosecutor4 indicted
Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City
(MeTC).5
The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to
a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State
prosecutors6 from the DOJ conducted this second inquest. The inquest was based on two letters, both
dated 27 February 2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is
the Acting Executive Officer of the Criminal Investigation and Detection Group (CIDG), Philippine

National Police (PNP), while Mendoza is the Acting Deputy Director of the CIDG. The letters referred to
the DOJ for appropriate action the results of the CIDGs investigation implicating Beltran, the
petitioners in G.R. Nos. 172074-76, San Juan, and several others as leaders and promoters of an
alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly
by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas
(MKP), which have formed a tactical alliance.
On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict
Beltran and San Juan as leaders/promoters of Rebellion. The panel then filed an Information with the
RTC Makati. The Information alleged that Beltran, San Juan, and other individuals conspiring and
confederating with each other, x x x, did then and there willfully, unlawfully, and feloniously form a
tactical alliance between the CPP/NPA, renamed as Partidong Komunista ng Pilipinas (PKP) and its
armed regular members as Katipunan ng Anak ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas
(MKP) and thereby rise publicly and take up arms against the duly constituted government, x x x.7
The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under Presiding
Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).
Beltran moved that Branch 137 make a judicial determination of probable cause against him.8 Before
the motion could be resolved, Judge Delorino recused herself from the case which was re-raffled to
Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya). In its Order dated 31 May 2006, Branch
146 sustained the finding of probable cause against Beltran.9 Beltran sought reconsideration but Judge
Moya also inhibited herself from the case without resolving Beltrans motion. Judge Elmo M. Alameda
of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006 denying Beltrans
motion.
Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006
and to enjoin Beltrans prosecution.
In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion was
valid and that the RTC Makati correctly found probable cause to try Beltran for such felony.
G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)
Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March 2006
requiring them to appear at the DOJ Office on 13 March 2006 to get copies of the complaint and its
attachment. Prior to their receipt of the subpoenas, petitioners had quartered themselves inside the
House of Representatives building for fear of being subjected to warrantless arrest.
During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked
man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners.
Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel Velasco who then gave
copies of the affidavit to media members present during the proceedings. The panel of prosecutors10
gave petitioners 10 days within which to file their counteraffidavits. Petitioners were furnished the
complete copies of documents supporting the CIDGs letters only on 17 March 2006.
Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality
and independence, considering the political milieu under which petitioners were investigated, the
statements that the President and the Secretary of Justice made to the media regarding petitioners
case,11 and the manner in which the prosecution panel conducted the preliminary investigation. The
DOJ panel of prosecutors denied petitioners motion on 22 March 2006. Petitioners sought
reconsideration and additionally prayed for the dismissal of the cases. However, the panel of
prosecutors denied petitioners motions on 4 April 2006.
Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.
Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status quo order
on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution
finding probable cause to charge petitioners and 46 others with Rebellion. The prosecutors filed the
corresponding Information with Branch 57 of the RTC Makati, docketed as Criminal Case No. 06-944
(later consolidated with Criminal Case No. 06-452 in Branch 146), charging petitioners and their coaccused as principals, masterminds, [or] heads of a Rebellion.12 Consequently, the petitioners in
G.R. Nos. 172070-72 filed a supplemental petition to enjoin the prosecution of Criminal Case No. 06944.
In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary
investigation of petitioners was not tainted with irregularities. The Solicitor General also claims that the
filing of Criminal Case No. 06-944 has mooted the Maza petition.
The Issues
The petitions raise the following issues:
1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and
(b) whether there is probable cause to indict Beltran for Rebellion; and
2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from
continuing with the prosecution of Criminal Case No. 06-944.13
The Ruling of the Court

We find the petitions meritorious.

On the Beltran Petition
The Inquest Proceeding against Beltran for Rebellion is Void.
Inquest proceedings are proper only when the accused has been lawfully arrested without warrant.14
Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such
warrantless arrest may be effected, thus:
Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
xxxx
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
The joint affidavit of Beltrans arresting officers15 states that the officers arrested Beltran, without a
warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have
conductedas he did conductan inquest for Inciting to Sedition and no other. Consequently, when
another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they
overstepped their authority rendering the second inquest void. None of Beltrans arresting officers saw
Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of
facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to
believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that
they saw and heard Beltran make an allegedly seditious speech on 24 February 2006.17 Indeed, under
DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if
the arrest of the detained person was made in accordance with the provisions of paragraphs (a) and
(b) of Section 5, Rule 113.18 If the arrest was not properly effected, the inquest officer should proceed
under Section 9 of Circular No. 61 which provides:
Where Arrest Not Properly Effected.Should the Inquest Officer find that the arrest was not made in
accordance with the Rules, he shall:
a) recommend the release of the person arrested or detained;
b) note down the disposition on the referral document;
c) prepare a brief memorandum indicating the reasons for the action taken; and
d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for
appropriate action.
Where the recommendation for the release of the detained person is approved by the City or Provincial
Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the
order of release shall be served on the officer having custody of said detainee and shall direct the said
officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with
the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his
witnesses and other supporting evidence. (Emphasis supplied)
For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation
to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest void.19 Beltran would
have been entitled to a preliminary investigation had he not asked the trial court to make a judicial
determination of probable cause, which effectively took the place of such proceeding.
There is No Probable Cause to Indict
Beltran for Rebellion.
Probable cause is 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.20 To accord respect to the discretion granted to
the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the
prosecutors determination of probable cause for otherwise, courts would be swamped with petitions to
review the prosecutors findings in such investigations.21 However, in the few exceptional cases where
the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding
of probable cause, thus denying the accused his right to substantive and procedural due process, we
have not hesitated to intervene and exercise our review power under Rule 65 to overturn the
prosecutors findings.22 This exception holds true here.
Rebellion under Article 134 of the Revised Penal Code is committed

[B]y rising publicly and taking arms against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and
2. That the purpose of the uprising or movement is either
(a) to remove from the allegiance to said Government or its laws:
(1) the territory of the Philippines or any part thereof; or
(2) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.23
Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in
furtherance of a political end.24 The evidence before the panel of prosecutors who conducted the
inquest of Beltran for Rebellion consisted of the affidavits and other documents25 attached to the
CIDG letters. We have gone over these documents and find merit in Beltrans contention that the same
are insufficient to show probable cause to indict him for Rebellion. The bulk of the documents consists
of affidavits, some of which were sworn before a notary public, executed by members of the military
and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20
Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the affidavits
mentions Beltran.28 In his affidavit, Escala recounted that in the afternoon of 20 February 2006, he
saw Beltran, Ocampo, Casio, Maza, Mariano, Virador, and other individuals on board a vehicle which
entered a chicken farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, they
were met by another individual who looked like San Juan. For his part, Cachuela stated that he was a
former member of the CPP and that (1) he attended the CPPs 10th Plenum in 1992 where he saw
Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members used
were purchased partly from contributions by Congressional members, like Beltran, who represent
party-list groups affiliated with the CPP.
The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an
armed public uprising against the government. What these documents prove, at best, is that Beltran
was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years earlier, he was present
during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific acts of
promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February 2006.
None of the affidavits alleged that Beltran is a leader of a rebellion. Beltrans alleged presence during
the 1992 CPP Plenum does not automatically make him a leader of a rebellion.
In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as Chairman, Kilusang
Mayo Uno (KMU). Assuming that Beltran is a member of the CPP, which Beltran does not
acknowledge, mere membership in the CPP does not constitute rebellion.29 As for the alleged funding
of the CPPs military equipment from Beltrans congressional funds, Cachuelas affidavit merely
contained a general conclusion without any specific act showing such funding. Cachuela merely
alleged that ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa Kongreso
tulad ng BAYAN MUNApimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x.30 Such a
general conclusion does not establish probable cause.
In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated 25
February 2006,31 as basis for the finding of probable cause against Beltran as Fuentes provided details
in his statement regarding meetings Beltran and the other petitioners attended in 2005 and 2006 in
which plans to overthrow violently the Arroyo government were allegedly discussed, among others.
The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to the DOJ
on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes affidavit in their
possession when they conducted the Rebellion inquest against Beltran on that day. Indeed, although
this affidavit is dated 25 February 2006, the CIDG first presented it only during the preliminary
investigation of the other petitioners on 13 March 2006 during which Fuentes subscribed to his
statement before respondent prosecutor Velasco.
Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch
137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans motion for judicial
determination of probable cause. Such belated submission, a tacit admission of the dearth of evidence
against Beltran during the inquest, does not improve the prosecutions case. Assuming them to be
true, what the allegations in Fuentes affidavit make out is a case for Conspiracy to Commit Rebellion,
punishable under Article 136 of the Revised Penal Code, not Rebellion under Article 134. Attendance in
meetings to discuss, among others, plans to bring down a government is a mere preparatory step to
commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged this,
since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is
Conspiracy to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San

Juan, and others conspired to form a tactical alliance to commit Rebellion. Thus, the RTC Makati erred
when it nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it.
The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and
CPP, including Beltran, also do not detract from our finding. Nowhere in the minutes was Beltran
implicated. While the minutes state that a certain Cris attended the alleged meeting, there is no
other evidence on record indicating that Cris is Beltran. San Juan, from whom the flash drive
containing the so-called minutes was allegedly taken, denies knowing Beltran.
To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion.
The Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming
that the Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a
matter of right since there is no allegation in the Information that he is a leader or promoter of the
Rebellion.33 However, the Information in fact merely charges Beltran for conspiring and
confederating with others in forming a tactical alliance to commit rebellion. As worded, the
Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable
offense.34
On the Ladlad and Maza Petitions
The Preliminary Investigation was Tainted With Irregularities.
As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of
offenses, a practice rooted on public interest as the speedy closure of criminal investigations fosters
public safety.35 However, such relief in equity may be granted if, among others, the same is necessary
(a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner36 or (b) to
afford adequate protection to constitutional rights.37 The case of the petitioners in G.R. Nos. 17207072 and 172074-76 falls under these exceptions.
The procedure for preliminary investigation of offenses punishable by at least four years, two months
and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus:
Procedure.The preliminary investigation shall be conducted in the following manner:
(a)The complaint shall state the address of the respondent and shall be accompanied by the affidavits
of the complainant and his witnesses, as well as other supporting documents to establish probable
cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to before any prosecutor or government
official authorized to administer oath, or, in their absence or unavailability, before a notary public, each
of whom must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it
if he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent, and
these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counteraffidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counteraffidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party
or a witness. The parties can be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer questions which may be asked to the
party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five
(5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for trial. (Emphasis supplied)
Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling,
so that the constitutional right to liberty of a potential accused can be protected from any material

damage,38 respondent prosecutors nonchalantly disregarded it. Respondent prosecutors failed to

comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment,
must be of such number as there are respondents) be accompanied by the affidavits of the
complainant and his witnesses, subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary public. Respondent
prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as
complaints39 and accepted the affidavits attached to the letters even though some of them were
notarized by a notary public without any showing that a prosecutor or qualified government official
was unavailable as required by Section 3(a) of Rule 112.
Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must
determine if there are grounds to continue with the investigation. If there is none, he shall dismiss the
case, otherwise he shall issue a subpoena to the respondents. Here, after receiving the CIDG letters,
respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the
DOJ office on 13 March 2006 to secure copies of the complaints and its attachments. During the
investigation, respondent prosecutors allowed the CIDG to present a masked Fuentes who subscribed
to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of
Fuentes affidavit not to petitioners or their counsels but to members of the media who covered the
proceedings. Respondent prosecutors then required petitioners to submit their counter affidavits in 10
days. It was only four days later, on 17 March 2006, that petitioners received the complete copy of the
attachments to the CIDG letters.
These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March 2006
that the preliminary investigation was done in accordance with the Revised Rules o[f] Criminal
Procedure.40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the
complainants antics during the investigation, and distributing copies of a witness affidavit to
members of the media knowing that petitioners have not had the opportunity to examine the charges
against them, respondent prosecutors not only trivialized the investigation but also lent credence to
petitioners claim that the entire proceeding was a sham.
A preliminary investigation is the crucial sieve in the criminal justice system which spells for an
individual the difference between months if not years of agonizing trial and possibly jail term, on the
one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a
preliminary investigation as not a mere formal or technical right but a substantive one, forming
part of due process in criminal justice.41 This especially holds true here where the offense charged is
punishable by reclusion perpetua and may be non-bailable for those accused as principals.
Contrary to the submission of the Solicitor General, respondent prosecutors filing of the Information
against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in
G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the
simple filing of the Information with the trial court.
On Respondent Prosecutors Lack of Impartiality
We find merit in petitioners doubt on respondent prosecutors impartiality. Respondent Secretary of
Justice, who exercises supervision and control over the panel of prosecutors, stated in an interview on
13 March 2006, the day of the preliminary investigation, that, We [the DOJ] will just declare probable
cause, then its up to the [C]ourt to decide x x x.42 Petitioners raised this issue in their petition,43 but
respondents never disputed the veracity of this statement. This clearly shows pre-judgment, a
determination to file the Information even in the absence of probable cause.
A Final Word
The obvious involvement of political considerations in the actuations of respondent Secretary of Justice
and respondent prosecutors brings to mind an observation we made in another equally politically
charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining
the integrity of criminal prosecutions in general and preliminary investigations in particular, thus:
[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the
impression that their noble office is being used or prostituted, wittingly or unwittingly, for political
ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing
the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or
poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may
be publics perception of the impartiality of the prosecutor be enhanced.44

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006
of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the
Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE
the Orders dated 22 March 2006 and 4 April 2006 issued by respondent prosecutors. We ORDER the
Regional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-452 and 06-944.
SO ORDERED.

182

SUPREME COURT REPORTS ANNOTATED

Ilusorio vs. Ilusorio
G.R. No. 171659. December 13, 2007.*
MARIETTA K. ILUSORIO, petitioner, vs. SYLVIA K. ILUSORIO, CRISTINA A. ILUSORIO, JOVITO CASTRO and
FIVE (5) JOHN DOES, respondents.
Criminal Procedure; Preliminary Investigation; Words and Phrases; Probable Cause, Defined; A finding
of probable cause merely binds over the suspect to stand trialit does not impose a guilty verdict;
Probable cause requires more than bare suspicion.Probable cause has been defined as the existence
of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain
an honest and strong suspicion, that the person charged is guilty of the crime for which he is sought to
be prosecuted. Being based merely on opinion and reasonable belief, it does not import absolute
certainty. A finding of probable cause merely binds over the suspect to stand trial; it does not impose a
guilty verdict. However, it requires more than bare suspicion.
Same; Same; The conduct of preliminary investigation for the purpose of determining the existence of
probable cause is executive in naturethe right to prosecute crime is reposed in the executive
department of the government primarily responsible for the faithful execution of the laws of the land.
The conduct of preliminary investigation for the purpose of determining the existence of probable
cause is executive in nature. The right to prosecute crime is reposed in the executive department of
the government primarily responsible for the faithful execution of the laws of the land. This right vests
the government prosecutor with a wide latitude of discretion on what and whom to charge upon proper
finding of probable cause, depending on a smorgasbord of factors best appreciated by him. The
preliminary investigation also serves to secure the innocent against hasty, malicious, and oppressive
prosecution, and to protect him from an open accusation of a crime, and the expense and anxiety of a
public trial. It likewise protects the State from useless and expensive trials, if unwarranted.
Same; Same; Policy of Non-Interference; A prosecutor is under no compulsion to file a particular
criminal information where he is convinced that there is not enough evidence to support its averments,
or that the evidence at hand, to his mind, necessarily leads to a different conclusion.A prosecutor, by
the nature of his office, is under no compulsion to file a particular criminal information where he is
convinced that there is not enough evidence to support its aver-ments, or that the evidence at hand, to
his mind, necessarily leads to a different conclusion. While his findings are not absolute and are
subject to judicial review, this Court generally adheres to the policy of non-interference in the conduct
of preliminary investigations, particularly when the said findings are well-supported by the facts as
established by the evidence on record. Findings of probable cause are essentially factual in nature.
Accordingly, in assailing said findings on the contention that the prosecutor committed grave abuse of
discretion, the petitioner clearly raises issues anchored mainly on the propriety or impropriety of the
prosecutors appreciation of the facts. This Court is not duty bound to scrutinize anew established facts
in a petition for review for we are not a trier of facts.
Same; Same; Criminal Law; Robbery; Corporation Law; The Vice-President and Assistant Vice-President
of a corporation, as such officers, would, ostensibly, have the right and authority to freely enter and
perform acts of maintenance of the office premises, which right includes breaking open the door and
replacing its locks, apparently due to loss of the keys.Sylvia and Cristina were able to establish by
competent evidence that they were then the Vice-President and the Assistant Vice-President of
Lakeridge, respectively. As such officers, they would, ostensibly, have the right and authority to freely
enter and perform acts of maintenance of Penthouse Unit 43-C. The right could include breaking open
the door and replacing its locks, apparently due to loss of the keys.
Same; Same; Burden of Proof; Quantum of Evidence; The complainant in a criminal charge has the
burden to prove the allegations by convincing evidence to warrant the indictment of the respondent.
We reiterate that Marietta, as the complainant in the criminal charges filed before the Office of the City
Prosecutor of Makati City, has the burden to prove the allegations in her Complaint-Affidavit by
convincing evidence to warrant the indictment of private respondents. Unfortunately, she failed to
discharge this burden. Thus, we cannot fault the investigating prosecutor for dismissing the criminal
charges, especially after the dismissal was uniformly affirmed in toto by the City Prosecutor, the
Secretary of the DOJ, and the Court of Appeals.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Singson, Valdez and Associates for petitioner.
Paris G. Real for private respondents.
NACHURA, J.:
Before us on appeal, by way of a petition for review on certiorari under Rule 45 of the Rules of Court, is
the Decision1 dated November 23, 2005 and the Resolution2 dated February 14, 2006, both of the
Court of Appeals. The case arose from a Complaint-Affidavit3 filed by petitioner Marietta K. Ilusorio
(Marietta) for robbery, qualified trespass to dwelling, and violation of Presidential Decree (P.D.) No.
1829 against private respondents Sylvia K. Ilusorio (Sylvia), Cristina A. Ilusorio (Cristina), Jovito Castro
(Jovito), and five (5) John Does.

In the said Complaint-Affidavit, Marietta alleged that she, together with Erlinda K. Ilusorio (Erlinda),
Ramon K. Ilusorio, and Shereen K. Ilusorio, owns and controls the majority of the shares of stock of
Lakeridge Corporation (Lakeridge), the registered owner of Penthouse Unit 43-C (Penthouse Unit 43-C)
of the Pacific Plaza Condominium (Pacific Plaza) in Ayala Avenue, Makati City; that Erlinda, Chairperson
and President of Lakeridge, has, for the past eight years, been the present and lawful occupant of
Penthouse Unit 43-C; that, sometime in October 1999, Erlinda left for the United States of America,
giving her (Marietta) full authority to take care of, oversee, and secure Penthouse Unit 43-C through a
letter to that effect addressed to the management of the Pacific Plaza; that on November 2, 1999,
Sylvia, Christie Agcaoili-Ilusorio (referring to Cristina), with several unidentified persons, with the
consent of Jovito, Chief Security of the Pacific Plaza, forcibly entered Penthouse Unit 43-C by breaking
its door and locks and allegedly caused the loss of documents and jewelry (this incident was subject of
a robbery case before the Office of the City Prosecutor of Makati City docketed as I.S. No. 99-Y-37824);
that on November 6, 1999, five (5) unidentified persons, with Jovitos permission, forcibly entered
Penthouse Unit 43-C by breaking its door and locks, replacing it with new ones, and thus preventing
her entrance; that upon learning of the latter incident, she went to Penthouse Unit 43-C to verify, and,
having seen the door knob torn and one of the locks broken, sought the assistance of the Makati
Police; that during the on-site investigation by the police, Jovito failed to cooperate and even concealed
information pertinent to the incident.
In their Counter-Affidavit,4 private respondents, while agreeing that the registered owner of Penthouse
Unit 43-C is Lakeridge Development Corporation, denied that petitioner and the other persons named
in the Complaint-Affidavit own and control the majority shares and that Erlinda is the chairperson and
president of Lakeridge. To buttress this allegation, they submitted copies of the updated General
Information Sheet5 filed with the Securities and Exchange Commission (SEC), Secretarys Certification6
dated November 8, 1999, and SEC Certificate of Corporate Filing/Information7 dated November 3,
1999, all showing the stockholders, the officers, and the members of the board of directors of
Lakeridge. They also alleged that the authority given by Erlinda to Marietta was without force and
effect, being ultra vires, in the absence of any board resolution to support it. They also noted that the
letter of authority,8 while dated October 7, 1999, was received by the management of the Pacific Plaza
only on November 3, 1999, which was after the November 2, 1999 incident described in the ComplaintAffidavit. They also submitted a copy of Lakeridges letter9 dated October 20, 1999 to the Pacific Plaza
Condominium Association, Inc., received by the latter on October 29, 1999, stating that Lakeridge had
not authorized any lease or sale of Penthouse Unit 43-C. They also averred that Marietta was not
authorized by the board of directors of Lakeridge to institute the criminal case and that Erlindas
residence was not at the Pacific Plaza but in Anti-polo, Rizal. More importantly, they alleged that there
could not be robbery and qualified trespass to dwelling because, as officers of Lakeridge, they had the
right to enter Penthouse Unit 43-C.
In his separate Counter-Affidavit10 dated January 17, 2000, Jovito explained that the November 2,
1999 incident cited by Marietta in her Complaint-Affidavit where she claimed that Penthouse Unit 43-C
was forced open by breaking the door and locks was really an act of maintenance of the property upon
written request made by Sylvia as one of the legitimate unit owners per the records of Pacific Plaza. He
claimed that he was merely dragged to the family feud of the Ilusorios.
In a Resolution11 dated February 1, 2000, Prosecutor II Edgardo G. Hirang of the Office of the City
Prosecutor of Makati City dismissed the charges against private respondents for lack of probable
cause. He found that, according to the records of Pacific Plaza, Sylvia, who was alleged to have ordered
the opening of the door and the replacement of the locks of Penthouse Unit 43-C on November 3,
1999, being among the legitimate owners of and who had on several occasions visited the unit, had
the authority to do so for the effective maintenance of the unit. He also found that the charge against
Jovito had already become moot and academic considering the dismissal of the charges for robbery
and qualified trespass to dwelling.
Mariettas motion for reconsideration of the Resolution was denied in an Order12 dated May 2, 2000.
Marietta elevated the case to the Department of Justice (DOJ) via a petition for review. However, in a
Resolution13 dated August 27, 2004, then Acting DOJ Secretary Ma. Merceditas N. Gutierrez denied the
petition on the ground that there was no showing of any reversible error on the part of the Office of the
City Prosecutor of Makati City to warrant the reversal of his dismissal of the criminal charges. The
motion for reconsideration of the Resolution dated August 27, 2004 was, likewise, denied in a
Resolution14 dated February 11, 2005.
Marietta went to the Court of Appeals by means of a petition for review on certiorari under Rule 65 of
the Rules of Court claiming grave abuse of discretion on the part of both the Office of the City
Prosecutor of Makati City and the DOJ in dismissing, for lack of probable cause, the charges she lodged
against private respondents.
The Court of Appeals, in its Decision dated November 23, 2005, denied the petition for lack of merit.
Marietta moved to reconsider the said Decision, but the motion was, likewise, denied in the Resolution
dated February 14, 2006. Hence, this petition.
Petitioner posits that this Court should grant the petition because
The Public Respondents erred in upholding the resolution of the Investigating Prosecutor Edgardo G.
Hirang, which dismissed the complaints for Robbery, Qualified Trespass to Dwelling, and Violation of
P.D. [1829], considering that:

A. The evidence on record sufficiently established probable cause that [the] said crimes were
committed and that the private respondents were probably guilty thereof.
B. The petitioner, together with EKI (Erlinda), Ramon K. Ilusorio, and Shereen K. Ilusorio, were the duly
constituted officers of LAKERIDGE and that the lawful occupant of Penthouse Unit 43-C of Pacific Plaza
Condominium was EKI, who in turn entrusted the same to petitioner in her absence.
C. The self-serving assertions of private respondents that they were representatives of LAKERIDGE did
not authorize them to break open the doors of Pent-house Unit 43-C of Pacific Plaza Condominium and
gain entry thereto.15
We disagree.
In essence, Marietta ascribes reversible error in the Office of the City Prosecutors finding of lack of
probable cause against private respondents for robbery, qualified trespass to dwelling, and for
violation of P.D. No. 1829, which was uniformly affirmed by the DOJ and the Court of Appeals.
Probable cause has been defined as the existence of such facts and circumstances as would lead a
person of ordinary caution and prudence to entertain an honest and strong suspicion, that the person
charged is guilty of the crime for which he is sought to be prosecuted. Being based merely on opinion
and reasonable belief, it does not import absolute certainty.16 A finding of probable cause merely
binds over the suspect to stand trial; it does not impose a guilty verdict. However, it requires more
than bare suspicion.17
The conduct of preliminary investigation for the purpose of determining the existence of probable
cause is executive in nature. The right to prosecute crime is reposed in the execu-tive department of
the government primarily responsible for the faithful execution of the laws of the land. This right vests
the government prosecutor with a wide latitude of discretion on what and whom to charge upon proper
finding of probable cause, depending on a smorgasbord of factors best appreciated by him. The
preliminary investigation also serves to secure the innocent against hasty, malicious, and oppressive
prosecution, and to protect him from an open accusation of a crime, and the expense and anxiety of a
public trial. It likewise protects the State from useless and expensive trials, if unwarranted.18
Thus, a prosecutor, by the nature of his office, is under no compulsion to file a particular criminal
information where he is convinced that there is not enough evidence to support its averments, or that
the evidence at hand, to his mind, necessarily leads to a different conclusion. While his findings are not
absolute and are subject to judicial review, this Court generally adheres to the policy of noninterference in the conduct of preliminary investigations, particularly when the said findings are wellsupported by the facts as established by the evidence on record.19
Findings of probable cause are essentially factual in nature. Accordingly, in assailing said findings on
the contention that the prosecutor committed grave abuse of discretion, the petitioner clearly raises
issues anchored mainly on the propriety or impropriety of the prosecutors appreciation of the facts.
This Court is not duty bound to scrutinize anew established facts in a petition for review for we are not
a trier of facts.20
In this case, we find no compelling reason to deviate from our policy of non-interference with the
investigating prosecutors findings of absence of probable cause. It is admitted by both parties that the
registered owner of Penthouse Unit 43-C is Lakeridge. Aside from the allegation of Marietta, there is no
sufficient evidence on record that Erlinda was indeed the lawful occupant of the unit. In fact, the letter
dated October 7, 1999, by which she claimed Erlinda gave her authority to occupy, oversee, and
secure Penthouse Unit 43-C, and belatedly received by the management of the Pacific Plaza on November 3, 1999, was signed by Erlinda for LAKERIDGE without the appropriate resolution of
Lakeridges board of directors to support it. Likewise, Marietta is not armed with any board resolution
authorizing her to institute the criminal charges against the private respondents.
Furthermore, Sylvia and Cristina were able to establish by competent evidence that they were then the
Vice-President and the Assistant Vice-President of Lakeridge, respectively. As such officers, they would,
ostensibly, have the right and authority to freely enter and perform acts of maintenance of Penthouse
Unit 43-C. The right could include breaking open the door and replacing its locks, apparently due to
loss of the keys.
Be that as it may, we still take time out to examine the pertinent provisions of the Revised Penal Code
on robbery and qualified trespass to dwelling, and the violation of P.D. No. 1829 referred to by Marietta
in her Complaint-Affidavit which read as follows:
Art. 293. Who are guilty of robbery.Any person who, with intent to gain, shall take any personal
property belonging to another, by means of violence against or intimidation of any person, or using
force upon anything shall be guilty of robbery.
Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship.Any armed
person who shall commit robbery in an inhabited house or public building or edifice devoted to
religious worship, shall be punished by reclusion temporal, if the value of the property taken shall
exceed 250 pesos, and if
(a) The malefactors shall enter the house or building in which the robbery was committed, by any of
the following means:
1. Through an opening not intended for entrance or egress.

2. By breaking any wall, roof, or floor, or breaking any door or window.

3. By using false keys, picklocks, or similar tools.
4. By using any fictitious name or pretending the exercise of public authority.
Or if
(b) The robbery be committed under any of the follow-ing circumstances:
1. By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or
receptacle.
2. By taking such furniture or objects away to be broken or forced open outside the place of robbery.
Art. 280. Qualified trespass to dwelling.Any private person who shall enter the dwelling of another
against the latters will, shall be punished by arresto mayor and a fine not exceeding 1,000 pesos.
If the offense be committed by means of violence or intimidation, the penalty shall be prision
correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos.
The provisions of this article shall not be applicable to any person who shall enter anothers dwelling
for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third
person, nor shall it be applicable to any person who shall enter a dwelling for the purpose of rendering
some service to humanity or justice, nor to anyone who shall enter cafes, taverns, inns, and other
public houses, while the same are open.
Presidential Decree No. 1829:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
xxxx
(b) altering, destroying, suppressing, or concealing any paper, record, document, or object, with intent
to impair its verity, authenticity, legibility, availability, as evidence in any investigation of or official
proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal
cases;
(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable
ground to believe or suspect, has committed any offense under existing penal laws in order to prevent
his arrest, prosecution, and conviction.
We hold that the evidence adduced does not support a finding of probable cause for the offenses
defined in the provisions cited above. Marietta failed to prove, by competent evidence, that: (1)
Penthouse Unit 43-C was the dwelling place of Erlinda; (2) she has authority over the said unit; (3)
Sylvia and Cristina had no authority to enter the unit and conduct acts of maintenance thereon; and
(4) Sylvia and Cristina were armed when they effected entrance. Based on these circumstances, the
charges of robbery and qualified trespass to dwelling must inevitably fail. Perforce, the charge against
Jovito for violation of P.D. No. 1829 should also be dismissed.
We reiterate that Marietta, as the complainant in the criminal charges filed before the Office of the City
Prosecutor of Makati City, has the burden to prove the allegations in her Complaint-Affidavit by
convincing evidence to warrant the indictment of private respondents. Unfortunately, she failed to
discharge this burden. Thus, we cannot fault the investigating prosecutor for dismissing the criminal
charges, especially after the dismissal was uniformly affirmed in toto by the City Prosecutor, the
Secretary of the DOJ, and the Court of Appeals.
WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision of the Court of Appeals,
dated November 23, 2005, and the Resolution dated February 14, 2006 in CA-G.R. SP No. 89331, are
AFFIRMED.
SO ORDERED.

VOL. 302, JANUARY 28, 1999

225
Joaquin, Jr. vs. Drilon
G.R. No. 108946. January 28, 1999.*
FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners, vs. HONORABLE FRANKLIN
DRILON, GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY FRANCISCO, respondents.
Complaint; Designation of Crime by Secretary of Justice; Probable Cause; In reviewing resolutions of
prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for

the purpose of determining whether there is probable cause for filing cases in court.In reviewing
resolutions of prosecutors, the Secretary of Justice is not precluded from considering errors, although
unassigned, for the purpose of determining whether there is probable cause for filing cases in court.
He must make his own finding of probable cause and is not confined to the issues raised by the parties
during preliminary investigation. Moreover, his findings are not subject to review unless shown to have
been made with grave abuse.
Same; Same; Same; Secretary of Justice is not precluded from making a preliminary determination of
this question in resolving whether there is probable cause for filing the case in court.It is indeed true
that the question whether the format or mechanics of petitioners television show is entitled to
copyright protection is a legal question for the court to make. This does not, however, preclude
respondent Secretary of Justice from making a preliminary determination of this question in resolving
whether there is probable cause for filing the case in court. In doing so in this case, he did not commit
any grave error.
Copyright Law (Presidential Decree 49); The format of a show is not copyrightable under Section 2 of
P.D. 49.To begin with, the format of a show is not copyrightable. Section 2 of P.D. No. 49, otherwise
known as the DECREE ON INTELLECTUAL PROPERTY, enumerates the classes of work entitled to
copyright protection, to wit: Section 2. The rights granted by this Decree shall, from the moment of
creation, subsist with respect to any of the following classes of works: (a) Books, including composite
and cyclopedic works, manuscripts, directories, and gazetteers; (b) Periodicals, including pamphlets
and newspapers; (c) Lectures, sermons, addresses, dissertations prepared for oral delivery; (d) Letters;
(e) Dramatic or dramatico-musical compositions; choreographic works and entertainments in dumb
shows, the acting form of which is fixed in writing or otherwise; (f) Musical compositions, with or
without words; (g) Works of drawing, painting, architecture, sculpture, engraving, lithography, and
other works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Original
ornamental designs or models for articles of manufacture, whether or not patentable, and other works
of applied art; (j) Maps, plans, sketches, and charts; (k) Drawings or plastic works of a scientific or
technical character; (l) Photographic works and works produced by a process analogous to
photography; lantern slides; (m) Cinematographic works and works produced by a process analogous
to cinematography or any process for making audio-visual recordings; (n) Computer programs; (o)
Prints, pictorial illustrations advertising copies, labels, tags, and box wraps; (p) Dramatizations,
translations, adaptations, abridgements, arrangements and other alterations of literary, musical or
artistic works or of works of the Philippine government as herein defined, which shall be protected as
provided in Section 8 of this Decree; (q) Collections of literary, scholarly, or artistic works or of works
referred to in Section 9 of this Decree which by reason of the selection and arrangement of their
contents constitute intellectual creations, the same to be protected as such in accordance with Section
8 of this Decree; (r) Other literary, scholarly, scientific and artistic works. This provision is substantially
the same as 172 of the INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES (R.A. No. 8293).
Same; The format or mechanics of a television show is not included in the list of protected works in 2
of P.D. No. 49. The protection afforded by the law cannot be extended to cover them.The format or
mechanics of a television show is not included in the list of protected works in 2 of P.D. No. 49. For this
reason, the protection afforded by the law cannot be extended to cover them. Copyright, in the strict
sense of the term, is purely a statutory right. It is a new or independent right granted by the statute,
and not simply a preexisting right regulated by the statute. Being a statutory grant, the rights are only
such as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by
the persons, and on terms and conditions specified in the statute. Since . . . copyright in published
works is purely a statutory creation, a copyright may be obtained only for a work falling within the
statutory enumeration or description. Regardless of the historical viewpoint, it is authoritatively settled
in the United States that there is no copyright except that which is both created and secured by act of
Congress.
Same; Copyright does not extend to an idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated,
or embodied in such work.P.D. No. 49, 2, in enumerating what are subject to copyright, refers to
finished works and not to concepts. The copyright does not extend to an idea, procedure, process,
system, method of operation, concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work. Thus, the new INTELLECTUAL PROPERTY
CODE OF THE PHILIPPINES provides: SEC. 175. Unprotected Subject Matter.Notwithstanding the
provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure,
system, method or operation, concept, principle, discovery or mere data as such, even if they are
expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts
having the character of mere items of press information; or any official text of a legislative,
administrative or legal nature, as well as any official translation thereof.
Same; The copyright does not extend to the general concept or format of its dating game show.What
then is the subject matter of petitioners copyright? This Court is of the opinion that petitioner BJPIs
copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within the class of
works mentioned in
P.D. 49, 2(M), to wit: Cinematographic works and works produced by a process analogous to
cinematography or any process for making audio-visual recordings; The copyright does not extend to
the general concept or format of its dating game show. Accordingly, by the very nature of the subject
of petitioner BJPIs copyright, the investigating prosecutor should have the opportunity to compare the
videotapes of the two shows.

Same; Mere description by words of the general format of the two dating game shows is insufficient;
the presentation of the master videotape in evidence was indispensable to the determination of the
existence of probable cause.Mere description by words of the gen-eral format of the two dating game
shows is insufficient; the presentation of the master videotape in evidence was indispensable to the
determination of the existence of probable cause. As aptly observed by respondent Secretary of
Justice: A television show includes more than mere words can describe because it involves a whole
spectrum of visuals and effects, video and audio, such that no similarity or dissimilarity may be found
by merely describing the general copyright/format of both dating game shows.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Medel, Macam, Del Rosario, Collado & Polines for petitioners.
Angelo Medina for F. Medina, Jr.
Atienza, Tabora, Del Rosario & Salvador for W. Esposo.
Francisco L. Rosario, Jr., for Casey Francisco.
De Borja, Medialdea Ata, Bello, Guevarra & Serapio for G. Zosa.
MENDOZA, J.:
This is a petition for certiorari. Petitioners seek to annul the resolution of the Department of Justice,
dated August 12, 1992, in Criminal Case No. Q-92-27854, entitled Gabriel Zosa, et al. v. City
Prosecutor of Quezon City and Francisco Joaquin, Jr., and its resolution, dated December 3, 1992,
denying petitioner Joaquins motion for reconsideration.
Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of Certificate of Copyright No. M922, dated
January 28, 1971, of Rhoda and Me, a dating game show aired from 1970 to 1977.
On June 28, 1973, petitioner BJPI submitted to the National Library an addendum to its certificate of
copyright specifying the shows format and style of presentation.
On July 14, 1991, while watching television, petitioner Francisco Joaquin, Jr., president of BJPI, saw on
RPN Channel 9 an episode of Its a Date, which was produced by IXL Productions, Inc. (IXL). On July 18,
1991, he wrote a letter to private respondent Gabriel M. Zosa, president and general manager of IXL,
informing Zosa that BJPI had a copyright to Rhoda and Me and demanding that IXL discontinue airing
Its a Date.
In a letter, dated July 19, 1991, private respondent Zosa apologized to petitioner Joaquin and
requested a meeting to discuss a possible settlement. IXL, however, continued airing Its a Date,
prompting petitioner Joaquin to send a second letter on July 25, 1991 in which he reiterated his
demand and warned that, if IXL did not comply, he would endorse the matter to his attorneys for
proper legal action.
Meanwhile, private respondent Zosa sought to register IXLs copyright to the first episode of Its a Date
for which it was issued by the National Library a certificate of copyright on August 14, 1991.
Upon complaint of petitioners, an information for violation of P.D. No. 49 was filed against private
respondent Zosa together with certain officers of RPN Channel 9, namely, William Esposo, Felipe
Medina, and Casey Francisco, in the Regional Trial Court of Quezon City where it was docketed as
Criminal Case No. 92-27854 and assigned to Branch 104 thereof. However, private respondent Zosa
sought a review of the resolution of the Assistant City Prosecutor before the Department of Justice.
On August 12, 1992, respondent Secretary of Justice Franklin M. Drilon reversed the Assistant City
Prosecutors findings and directed him to move for the dismissal of the case against private
respondents.1
Petitioner Joaquin filed a motion for reconsideration, but his motion was denied by respondent
Secretary of Justice on December 3, 1992. Hence, this petition. Petitioners contend that:
1. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he
invoked non-presentation of the master tape as being fatal to the existence of probable cause to prove
infringement, despite the fact that private respondents never raised the same as a controverted issue.
2. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he
arrogated unto himself the determination of what is copyrightablean issue which is exclusively within
the jurisdiction of the regional trial court to assess in a proper proceeding.
Both public and private respondents maintain that petitioners failed to establish the existence of
probable cause due to their failure to present the copyrighted master videotape of Rhoda and Me.
They contend that petitioner BJPIs copyright covers only a specific episode of Rhoda and Me and that
the formats or concepts of dating game shows are not covered by copyright protection under P.D. No.
49.
Non-Assignment of Error

Petitioners claim that their failure to submit the copyrighted master videotape of the television show
Rhoda and Me was not raised in issue by private respondents during the preliminary investigation and,
therefore, it was error for the Secretary of Justice to reverse the investigating prosecutors finding of
probable cause on this ground.
A preliminary investigation falls under the authority of the state prosecutor who is given by law the
power to direct and control criminal actions.2 He is, however, subject to the control of the Secretary of
Justice. Thus, Rule 112, 4 of the Revised Rules of Criminal Procedure, provides:
SEC. 4. Duty of investigating fiscal.If the investigating fiscal finds cause to hold the respondent for
trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he,
or as shown by the record, an authorized officer, has personally examined the complainant and his
witnesses, that there is reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof, that the accused was informed of the complaint and of the evidence
submitted against him and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend dismissal of the complaint.
In either case, he shall forward the records of the case to the provincial or city fiscal or chief state
prosecutor within five (5) days from his resolution. The latter shall take appropriate action thereon
within ten (10) days from receipt thereof, immediately informing the parties of said action.
No complaint or information may be filed or dismissed by an investigating fiscal without the prior
written authority or approval of the provincial or city fiscal or chief state prosecutor.
Where the investigating assistant fiscal recommends the dismissal of the case but his findings are
reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause
exists, the latter may, by himself, file the corresponding information against the respondent or direct
any other assistant fiscal or state prosecutor to do so, without conducting another preliminary
investigation.
If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or
city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding
information without conducting another preliminary investigation or to dismiss or move for dismissal of
the complaint or information.
In reviewing resolutions of prosecutors, the Secretary of Justice is not precluded from considering
errors, although unassigned, for the purpose of determining whether there is probable cause for filing
cases in court. He must make his own finding of probable cause and is not confined to the issues
raised by the parties during preliminary investigation. Moreover, his findings are not subject to review
unless shown to have been made with grave abuse.
Opinion of the Secretary of Justice
Petitioners contend, however, that the determination of the question whether the format or mechanics
of a show is entitled to copyright protection is for the court, and not the Secretary of Justice, to make.
They assail the following portion of the resolution of the respondent Secretary of Justice:
[T]he essence of copyright infringement is the copying, in whole or in part, of copyrightable materials
as defined and enumerated in Section 2 of P.D. No. 49. Apart from the manner in which it is actually
expressed, however, the idea of a dating game show is, in the opinion of this Office, a noncopyrightable material. Ideas, concepts, formats, or schemes in their abstract form clearly do not fall
within the class of works or materials susceptible of copyright registration as provided in P.D. No. 49.3
(Emphasis added.)
It is indeed true that the question whether the format or mechanics of petitioners television show is
entitled to copyright protection is a legal question for the court to make. This does not, however,
preclude respondent Secretary of Justice from making a preliminary determination of this question in
resolving whether there is probable cause for filing the case in court. In doing so in this case, he did
not commit any grave error.
Presentation of Master Tape
Petitioners claim that respondent Secretary of Justice gravely abused his discretion in ruling that the
master videotape should have been presented in order to determine whether there was probable
cause, for copyright infringement. They contend that 20th Century Fox Film Corporation v. Court of
Appeals,4 on which respondent Secretary of Justice relied in reversing the resolution of the
investigating prosecutor, is inapplicable to the case at bar because in the present case, the parties
presented sufficient evidence which clearly establish linkages between the copyrighted show Rhoda
and Me and the infringing TV show Its a Date. 5
The case of 20th Century Fox Film Corporation involved raids conducted on various videotape outlets
allegedly selling or renting out pirated videotapes. The trial court found that the affidavits of NBI
agents, given in support of the application for the search warrant, were insufficient without the master
tape. Accordingly, the trial court lifted the search warrants it had previously issued against the
defendants. On petition for review, this Court sustained the action of the trial court and ruled:6
The presentation of the master tapes of the copyrighted films from which the pirated films were
allegedly copied, was necessary for the validity of search warrants against those who have in their
possession the pirated films. The petitioners argument to the effect that the presentation of the

master tapes at the time of application may not be necessary as these would be merely evidentiary in
nature and not determinative of whether or not a probable cause exists to justify the issuance of the
search warrants is not meritorious. The court cannot presume that duplicate or copied tapes were
necessarily reproduced from master tapes that it owns.
The application for search warrants was directed against video tape outlets which allegedly were
engaged in the unauthorized sale and renting out of copyrighted films belonging to the petitioner
pursuant to P.D. 49.
The essence of a copyright infringement is the similarity or at least substantial similarity of the
purported pirated works to the copyrighted work. Hence, the applicant must present to the court the
copyrighted films to compare them with the purchased evidence of the video tapes allegedly pirated to
determine whether the latter is an unauthorized reproduction of the former. This linkage of the
copyrighted films to the pirated films must be established to satisfy the requirements of probable
cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the
issuance of a search warrant.
This ruling was qualified in the later case of Columbia Pictures, Inc. v. Court of Appeals7 in which it was
held:
In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the
master tapes of the copyrighted films for the validity of search warrants should at most be understood
to merely serve as a guidepost in determining the existence of probable cause in copyright
infringement cases where there is doubt as to the true nexus between the master tape and the pirated
copies. An objective and careful reading of the decision in said case could lead to no other conclusion
than that said directive was hardly intended to be a sweeping and inflexible requirement in all or
similar copyright infringement cases . . . .8
In the case at bar, during the preliminary investigation, petitioners and private respondents presented
written descriptions of the formats of their respective televisions shows, on the basis of which the
investigating prosecutor ruled:
As may [be] gleaned from the evidence on record, the substance of the television productions
complainants RHODA AND ME and Zosas ITS A DATE is that two matches are made between a
male and a female, both single, and the two couples are treated to a night or two of dining and/or
dancing at the expense of the show. The major concepts of both shows is the same. Any difference
appear mere variations of the major concepts.
That there is an infringement on the copyright of the show RHODA AND ME both in content and in
the execution of the video presentation are established because respondents ITS A DATE is
practically an exact copy of complainants RHODA AND ME because of substantial similarities as
follows, to wit:
RHODA AND ME
ITS A DATE
Set I
Set I
a. Unmarried participant of one gender (searcher) appears on one side of a divider, while three (3)
unmarried participants of the other gender are on the other side of the divider. This arrangement is
done to ensure that the searcher does not see the searchees.
a. same
b. Searcher asks a question to be answered by each of the searchees. The purpose is to determine who
among the searchees is the most compatible with the searcher.
b. same
c. Searcher speculates on the match to the searchee.
c. same
d. Selection is made by the use of compute (sic) methods, or by the way questions are answered, or
similar methods.
d. Selection is based on the answer of the Searchees.
Set 2
Set 2
Same as above with the genders of the searcher and searchees interchanged. 9
samePetitioners assert that the format of Rhoda and Me is a product of ingenuity and skill and is thus
entitled to copyright protection. It is their position that the presentation of a point-by-point comparison
of the formats of the two shows clearly demonstrates the nexus between the shows and hence

establishes the existence of probable cause for copyright infringement. Such being the case, they did
not have to produce the master tape.
To begin with, the format of a show is not copyrightable. Section 2 of P.D. No. 49,10 otherwise known
as the DECREE ON INTELLECTUAL PROPERTY, enumerates the classes of work entitled to copyright
protection, to wit:
Section 2. The rights granted by this Decree shall, from the moment of creation, subsist with respect to
any of the following classes of works:
(A) Books, including composite and cyclopedic works, manuscripts, directories, and gazetteers;
(B) Periodicals, including pamphlets and newspapers;
(C) Lectures, sermons, addresses, dissertations prepared for oral delivery;
(D) Letters;
(E) Dramatic or dramatico-musical compositions; choreographic works and entertainments in dumb
shows, the acting form of which is fixed in writing or otherwise;
(F) Musical compositions with, or without words;
(G) Works of drawing, painting, architecture, sculpture, engraving, lithography and other works of art;
models or designs for works of art;
(H) Reproductions of a work of art;
(I) Original ornamental designs or models for articles of manufacture, whether or not patentable, and
other works of applied art;
(J) Maps, plans, sketches, and charts;
(K) Drawings or plastic works of a scientific or technical character;
(L) Photographic works and works produced by a process analogous to photography; lantern slides;
(M) Cinematographic works and works produced by a process analogous to cinematography or any
process for making audio-visual recordings;
(N) Computer programs;
(O) Prints, pictorial illustrations advertising copies, labels, tags and box wraps;
(P) Dramatizations, translations, adaptations, abridgements, arrangements and other alterations of
literary, musical or artistic works or of works of the Philippine government as herein defined, which
shall be protected as provided in Section 8 of this Decree;
(Q) Collections of literary, scholarly, or artistic works or of works referred to in Section 9 of this Decree
which by reason of the selection and arrangement of their contents constitute intellectual creations,
the same to be protected as such in accordance with Section 8 of this Decree;
(R) Other literary, scholarly, scientific and artistic works.
This provision is substantially the same as 172 of the INTELLECTUAL PROPERTY CODE OF THE
PHILIPPINES (R.A. No. 8293).11 The format or mechanics of a television show is not included in the list
of protected works in 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be
extended to cover them.
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right
granted by the statute, and not simply a pre-existing right regulated by the statute. Being a statutory
grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with
respect to the subjects and by the persons, and on terms and conditions specified in the statute.12
Since . . . copyright in published works is purely a statutory creation, a copyright may be obtained only
for a work falling within the statutory enumeration or description.13
Regardless of the historical viewpoint, it is authoritatively settled in the United States that there is no
copyright except that which is both created and secured by act of Congress . . . .14 P.D. No. 49, 2, in
enumerating what are subject to copyright, refers to finished works and not to concepts. The copyright
does not extend to an idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such
work.15 Thus, the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:
SEC. 175. Unprotected Subject Matter.Notwithstanding the provisions of Sections 172 and 173, no
protection shall extend, under this law, to any idea, procedure, system, method or operation, concept,
principle, discovery or mere data as such, even if they are expressed, explained, illustrated or
embodied in a work; news of the day and other miscellaneous facts having the character of mere items
of press information; or any official text of a legislative, administrative or legal nature, as well as any
official translation thereof.

What then is the subject matter of petitioners copyright? This Court is of the opinion that petitioner
BJPIs copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within the
class of works mentioned in P.D. 49, 2(M), to wit:
Cinematographic works and works produced by a process analogous to cinematography or any process
for making audio-visual recordings;
The copyright does not extend to the general concept or format of its dating game show. Accordingly,
by the very nature of the subject of petitioner BJPIs copyright, the investigating prosecutor should
have the opportunity to compare the videotapes of the two shows.
Mere description by words of the general format of the two dating game shows is insufficient; the
presentation of the master videotape in evidence was indispensable to the determination of the
existence of probable cause. As aptly observed by respondent Secretary of Justice: A television show
includes more than mere words can describe because it involves a whole spectrum of visuals and
effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the
general copyright/format of both dating game shows.16
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
VOL. 480, JANUARY 25, 2006
71
De Ocampo vs. Secretary of Justice
G.R. No. 147932. January 25, 2006.*
LAILA G. DE OCAMPO, petitioner, vs. THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B.
DACARRA, and ERLINDA P. ORAYAN, respondents.
Criminal Procedure; Preliminary Investigation; A clarificatory hearing is not indispensable during
preliminary investigation; 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.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. 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. 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.
Same; Same; Due Process; Petitioner cannot successfully invoke denial of due process since she was
given the opportunity of a hearing.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. Petitioner cannot
successfully invoke denial of due process since she was given the opportunity of a hearing. She even
submitted her counter-affidavit to the investigating prosecutor on 18 January 2000.
Same; Same; The sole purpose of a preliminary investigation is to determine whether a crime has been
committed and whether the respondent is probably guilty of the crime.Preliminary investigation is
merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to determine whether a
crime has been committed and whether the respondent is probably guilty of the crime. It is not the
occasion for the full and exhaustive display of the parties evidence. 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.
Same; Same; 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.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.
Same; Same; Section 3(d) of Rule 112 applies if the respondent cannot be subpoenaed or if
subpoenaed fails to submit her counter-affidavit within the prescribed period.Petitioner mistakenly
cites
Section 3(d) of Rule 112 in arguing that the investigating prosecutor should not go beyond the
evidence presented by complainants in resolving the case. This provision applies if the respondent
cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit within the prescribed

period. Such is not the case here where petitioner filed her counter-affidavit and both parties
presented their respective evidence.
PETITION for review on certiorari of the resolutions of the Secretary of the Department of Justice.
The facts are stated in the opinion of the Court.
Pedro R. Lazo for petitioner.
CARPIO, J.:
The Case
This petition for certiorari1 assails the Resolutions dated 15 September 2000 and 19 April 2001 of the
Secretary of the Department of Justice (DOJ Secretary) in I.C. No. 99-6254.2 The DOJ Secretary3
denied Laila G. De Ocampos (petitioner) petition for review of the investigating prosecutors finding
of probable cause against her for homicide4 in relation to Section 10(a), Article VI of Republic Act No.
7610 (RA 7610)5 and for violation of the same provision of RA 7610. The DOJ Secretary6 also denied
petitioners motion for reconsideration.
The Facts
The present case arose from a sworn statement of respondent Magdalena B. Dacarra (Magdalena)
executed before the Womens Desk of the CPD Police Station in Batasan Hills, Quezon City on 10
December 1999. Magdalena stated that on 4 December 1999, her nine-year-old son Ronald
complained of dizziness upon arriving home at about six in the evening. Ronald then vomited,
prompting Magdalena to ask what happened. Ronald replied that petitioner, who was Ronalds teacher,
banged his head against that of his classmate Lorendo Orayan (Lorendo). Magdalena inspected
Ronalds head and saw a woundless contusion. Due to Ronalds continued vomiting, Magdalena
brought him to a quack doctor (arbularyo) on 5 December 1999. The following morning, Magdalena
brought Ronald to the East Avenue Medical Center where he underwent an x-ray. The attending
physician informed Magdalena that Ronalds head had a fracture. Blood oozed out of Ronalds nose
before he died on 9 December 1999.
Lorendo also executed a sworn statement narrating how petitioner banged his head against Ronalds.
During the inquest proceedings on 14 December 1999, Assistant Quezon City Prosecutor Maria Lelibet
Sampaga (inquest prosecutor) ruled as follows:
Evidence warrants the release of the respondent for further investigation of the charges against her.
The case is not proper for inquest as the incident complained of happened on December 4, 1999.
Further, we find the evidence insufficient to support the charge for homicide against the respondent.
There is no concrete evidence to show proof that the alleged banging of the heads of the two minor
victims could be the actual and proximate cause of the death of minor Ronald Dacarra y Baluton.
Besides, the police report submitted by the respondent in this case states that said victim bears
stitches or sutures on the head due to a vehicular accident.
There is no certainty, therefore, that respondents alleged wrongdoing contributed or caused the death
of said victim.7
Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna F. Catris-Chua Cheng
(investigating prosecutor) for preliminary investigation. She scheduled the first hearing on 6 January
2000.
Respondent Erlinda P. Orayan (Erlinda), Lorendos mother, attended the hearing of 6 January 2000
and alleged that petitioner offered her P100,000, which she initially accepted, for her and her sons
non-appearance at the preliminary investigation. Erlinda presented the money to the investigating
prosecutor.
On 7 January 2000, Jennilyn Quirong, who witnessed the 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 headbanging 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 recommendedHomicide, in relation to Art. VI, Sec. 10, R.A. 7610; and
Twenty Thousand pesos (P20,000.00)Viol. of Sec. 10(a) of R.A. 76108
Consequently, petitioner filed a petition for review with the DOJ.
In her appeal to the DOJ, petitioner contended that the investigating prosecutor showed bias in favor of
complainants Magdalena and Erlinda (complainants) for not conducting a clarificatory hearing and
unilaterally procuring the autopsy report. Petitioner argued that the investigating prosecutor erred in
concluding that her alleged act of banging Ronald and Lorendos heads was the cause of Ronalds
injury and that such was an act of child abuse. Petitioner also alleged that it is the Office of the
Ombudsman which has jurisdiction over the case, and not the Quezon City Prosecutors Office.
The Resolution of the DOJ Secretary
The DOJ Secretary denied the petition for review. The DOJ Secretary held that there was no bias in
complainants favor when the investigating prosecutor did not conduct a clarificatory hearing and
unilaterally procured the autopsy report as nothing precluded her from doing so.
The DOJ Secretary upheld the investigating prosecutors finding that Ronalds injury was the direct and
natural result of petitioners act of banging Ronald and Lorendos heads. The DOJ Secretary stated that
petitioner never denied such act, making her responsible for all its consequences even if the
immediate cause of Ronalds death was allegedly the failed medical attention or medical negligence.
The DOJ Secretary held that assuming there was failure of medical attention or medical negligence,
these inefficient intervening causes did not break the relation of the felony committed and the
resulting injury.
The DOJ Secretary rejected petitioners claim that she is innocent as held by the inquest prosecutor.
The inquest prosecutor did not dismiss the case. She merely recommended petitioners release for
further investigation since the case was not proper for inquest and the evidence was then insufficient.
The DOJ Secretary further stated that the omission in Magdalenas sworn statement about Ronalds
head injury due to a vehicular accident in November 1997 and the absence of any injury on Lorendo
are inconsequential.
Moreover, the DOJ Secretary ruled that whether the statements of the causes of death in the death
certificate and autopsy report are hearsay, and whether Jennilyn Quirong and Melanie Lugales have
immature perception, are evidentiary matters which should be determined during trial. The DOJ
Secretary also sustained the investigating prosecutors conclusion that the banging of Ronald and
Lorendos heads is an act of child abuse.
Petitioner filed a motion for reconsideration9 which the DOJ Secretary denied in his Resolution dated 19
April 2001.10
Hence, this petition.
The Issues
Petitioner raises the following issues:
1. Whether petitioner was denied due process during the preliminary investigation; and
2. Whether there is probable cause against petitioner for homicide under Article 249 of the Revised
Penal Code in relation to Section 10(a), Article VI of RA 7610 and for violation of Section 10(a), Article
VI of RA 7610.
The Ruling of the Court
The petition lacks merit.
Before resolving the substantive issues in this case, the Court will address the procedural issue raised
by the Office of the Solicitor General (OSG).11 The OSG contends that instead of Rule 65, Rule 43 is
applicable to the present case. Thus, the OSG argues that the petition should be dismissed outright for
being filed with this Court, instead of with the Court of Appeals, under a wrong mode of appeal. On the
other hand, assuming Rule 65 applies, the OSG points out that the petition for certiorari should be filed
with the Court of Appeals.
Based on Memorandum Circular No. 58,12 the resolution of the DOJ Secretary is appealable
administratively to the Office of the President since the offenses charged in this case are punishable by
reclusion perpetua.13 From the Office of the President, the aggrieved party may file an appeal with the
Court of Appeals pursuant to Rule 43.14

Even assuming that the DOJ Secretary committed grave abuse of discretion in rendering the assailed
Resolutions amounting to lack or excess of jurisdiction, petitioner should have filed the instant petition
for certiorari with the Court of Appeals. Hence, on the issue alone of the propriety of the remedy
sought by petitioner, this petition 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. x x x15
(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 headbanging incident also strengthened complainants allegations.
Petitioner mistakenly cites Section 3(d) of Rule 11222 in arguing that the investigating prosecutor
should not go beyond the evidence presented by complainants in resolving the case. This provision
applies if the respondent cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit
within the prescribed period. Such is not the case here where petitioner filed her counter-affidavit and
both parties presented their respective evidence.
Whether there is 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 head-banging incident was not the proximate cause of Ronalds death. Petitioner insists that
efficient intervening events caused Ronalds death.
We do not agree. There is probable cause for the offenses charged against petitioner. Probable cause is
the existence of such facts and circumstances as would excite the belief in a reasonable mind that a
crime has been committed and the respondent is probably guilty of the crime.23
In the present case, Ronald, a nine-year-old student, died five days after his teacher, petitioner in this
case, allegedly banged his head against that of his classmate Lorendo. There is nothing in the records
showing petitioners specific denial of the occurrence of such act. Petitioner simply stated that the
head-banging incident happened but [she] did not perpetrate it.24 In effect, petitioner admits the
occurrence of the headbanging incident but denies committing it.
The alleged intervening events before Ronald died, namely: (a) the consultation with a quack doctor,
and (b) the three-day confinement in the East Avenue Medical Center, are not sufficient to break the
relation of the felony committed and the resulting injury. Were it not for the head-banging incident,
Ronald might not have needed medical assistance in the first place.
These circumstances which allegedly intervened causing Ronalds death are evidentiary matters which
should be threshed out during the trial. The following are also matters better left for the trial court to
appreciate: (a) the contents of the death certificate and autopsy report, (b) the medical records of
Ronalds accident in November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie
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
Code27 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.

G.R. No. 182336.December 23, 2009.*

ELVIRA O. ONG, petitioner, vs. JOSE CASIM GENIO, respondent.
Criminal Procedure; Appeals; Office of the Solicitor General (OSG); Only the Office of the Solicitor
General (OSG) can bring or defend actions on behalf of the Republic or represent the People or the
State in criminal proceedings pending in the Supreme Court and the Court of Appeals.This doctrine is
laid down in our ruling in Heirs of Federico C. Delgado and Annalisa Pesico v. Luisito Q. Gonzalez and
Antonio T. Buenaflor, 595 SCRA 501 (2008), Cario v. De Castro, 553 SCRA 688 (2008), Mobilia
Products, Inc. v. Umezawa, 452 SCRA 736 (2005), Narciso v. Sta. Romana-Cruz, 328 SCRA 505 (2000),
Perez v. Hagonoy Rural Bank, Inc., 327 SCRA 588 (2000), and People v. Santiago, 174 SCRA 143 (1989),
where we held that only the OSG can bring or defend actions on behalf of the Republic or represent the
People or the State in criminal proceedings pending in this Court and the CA. While there may be rare
occasions when the offended party may be allowed to pursue the criminal action on his own behalf, as
when there is a denial of due process, this exceptional circumstance does not obtain in the instant
case.
Same; Warrants of Arrest; Upon the filing of an Information, the Regional Trial Court judge has the
following options: (1) dismiss the case if the evidence on record clearly failed to establish probable
cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the
existence of probable cause, order the prosecutor to present additional evidence within five days from
notice, the issue to be resolved by the court within thirty days from the filing of the information.
Section 6(a), Rule 112 of the Revised Rules on Criminal Procedure clearly provides: SEC.6. When
warrant of arrest may issue.(a) By the Regional Trial Court.Within ten (10) days from the filing of
the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and
its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant issued by the judge
who conducted the preliminary investigation or when the complaint or information was filed pursuant
to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the complaint or information. Pursuant
to the aforementioned provision, the RTC judge, upon the filing of an Information, has the following
options: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) if
he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of
probable cause, order the prosecutor to present additional evidence within five days from notice, the
issue to be resolved by the court within thirty days from the filing of the information.
PETITION for review on certiorari of a resolution of the Court of Appeals.
The facts are stated in the resolution of the Court.
Gilbert I. Nolasco for petitioner.
Cesar P. Manalaysay and Charity D. Aurellano for respondent.
RESOLUTION
NACHURA,J.:
Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Civil Procedure,
seeking the reversal of the Court of Appeals (CA) Resolution2 dated January 7, 2008.
Petitioner Elvira O. Ong (petitioner) filed a criminal complaint against respondent Jose Casim Genio
(respondent) for Robbery which was dismissed by the City Prosecutor of Makati City. However,
pursuant to the Resolutions dated September 15, 20063 and October 30, 20064 of the Department of
Justice, respondent was charged with the crime of Robbery in an Information5 which reads:
That in or about and sometime the month of January, 2003, in the City of Makati, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously take, divest and carry away kitchen and canteen equipment as well as her
personal things valued at Php 700,000.00, belonging to complainant, ELVIRA O. ONG, to the damage
and prejudice of the said owner in the aforementioned amount of Php 700,000.00.
CONTRARY TO LAW.
On November 21, 2006, respondent filed a Motion to Dismiss the Case for Lack of Probable Cause
Pursuant to Sec. 6(a),6 Rule 112 of the Rules of Court and, in View of Compelling Grounds for the
Dismissal of the Case to Hold in Abeyance the Issuance of the Warrant of Arrest7 (Motion to Dismiss).
Petitioner filed an Opposition8 dated December 11, 2006 to respondents Motion to Dismiss.
In its Order9 of December 15, 2006, the Regional Trial Court (RTC) of Makati City, Branch 56, dismissed
the case because the other elements of the crime of Robbery, specifically the elements of intent to
gain, and either violence against or intimidation of any person or force upon things, were not
specifically alleged in the Information filed against respondent.
Despite the dismissal of the case, respondent filed a Partial Motion for Reconsideration10 dated
January 2, 2007, reiterating that the Information should be dismissed in its entirety for lack of probable
cause. Petitioner filed her Opposition11 to this motion on February 15, 2007.

In its Order12 dated February 12, 2007, the RTC granted respondents Partial Motion for
Reconsideration and dismissed the case for lack of probable cause pursuant to Section 6(a), Rule 112
of the Revised Rules on Criminal Procedure. The RTC held that the evidence on record failed to
establish probable cause to charge respondent with the crime of Robbery.
On March 6, 2007, petitioner filed her Motion for Reconsideration,13 claiming that the RTC erred in
relying on Section 6(a), Rule 112 of the Revised Rules on Criminal Procedure, since the said provision
relates to the issuance of a warrant of arrest, and it does not cover the determination of probable
cause for the filing of the Information against respondent, which is executive in nature, a power
primarily vested in the Public Prosecutor.
In its Order14 dated June 1, 2007, the RTC denied petitioners Motion for Reconsideration, holding that
the aforementioned provision authorizes the RTC to evaluate not only the resolution of the prosecutor
who conducted the preliminary investigation and eventually filed the Information in court, but also the
evidence upon which the resolution was based. In the event that the evidence on record clearly fails to
establish probable cause, the RTC may dismiss the case.
Aggrieved, petitioner filed a Petition for Certiorari and Mandamus15 before the CA on August 28, 2007.
Respondent filed a Motion to Dismiss16 the petition, raising the issue of lack of personality of
petitioner to appeal the dismissal of the criminal case, because the authority to do so lies exclusively
with the State as represented by the Office of the Solicitor General (OSG). In its Resolution17 dated
September 10, 2007, the CA observed that the People of the Philippines was impleaded as petitioner
without showing, however, the OSGs participation. Thus, the CA ordered petitioner to furnish the OSG
with a copy of the Petition, and the latter to comment thereon.
On October 22, 2007, the OSG filed its Comment,18 taking the stand of respondent that only the
Solicitor General can bring or defend actions on behalf of the People of the Philippines filed before the
CA or the Supreme Court. The OSG submitted that, for being fatally defective, the said Petition should
be dismissed insofar as the criminal aspect was concerned, without prejudice to the right of petitioner
to pursue the civil aspect of the case.
On January 7, 2008, the CA rendered its Resolution,19 dismissing the case without prejudice to the
filing of a petition on the civil aspect thereof on the basis of the arguments raised by both respondent
and the OSG. Undaunted, petitioner filed a Motion for Reconsideration20 which the CA denied in its
Resolution21 dated March 27, 2008.
Hence this Petition raising the following issues:
A.
WHETHER THE PETITIONER AS THE PRIVATE OFFENDED PARTY IN A CRIMINAL CASE HAS NO
PERSONALITY TO ELEVATE THE CASE TO THE COURT OF APPEALS WITHOUT THE COMFORMITY OF THE
OFFICE OF THE SOLICITOR GENERAL EVEN BEFORE THE ACCUSED IS ARRAIGNED
B.
WHETHER THE REGIONAL TRIAL COURT HAS AUTHORITY TO DISMISS THE INFORMATION ON THE
GROUND OF LACK OF PROBABLE CAUSE CONTRARY TO THE FINDINGS OF THE SECRETARY OF THE
DEPARTMENT OF JUSTICE
C.
WHETHER THE REGIONAL TRIAL COURT HAS THE AUTHORITY TO DISMISS THE INFORMATION ON THE
GROUND OF LACK OF PROBABLE CAUSE WHEN IT HAS PREVIOUSLY CONCLUDED THAT THE SAME
INFORMATION IS DEFECTIVE[.]22
The instant Petition is bereft of merit.
Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987 states that the OSG
shall represent the Government of the Philippines, its agencies and instrumentalities and its officials
and agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers.
Likewise, the Solicitor General shall represent the Government in this Court and the CA in all criminal
proceedings, thus:
SEC.35.Powers and Functions.The Office of the Solicitor General shall represent the Government
of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of lawyers. When authorized by the
President or head of the office concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall constitute the law office of the Government and,
as such, shall discharge duties requiring the services of lawyers. It shall have the following specific
powers and functions:
(1)Represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court, the Court of Appeals,
and all other courts or tribunals in all civil actions and special proceedings in which the Government or
any officer thereof in his official capacity is a party.
This doctrine is laid down in our ruling in Heirs of Federico C. Delgado and Annalisa Pesico v. Luisito Q.
Gonzalez and Antonio T. Buenaflor,23 Cario v. De Castro,24 Mobilia Products, Inc. v. Umezawa,25

Narciso v. Sta. Romana-Cruz,26Perez v. Hagonoy Rural Bank, Inc.,27 and People v. Santiago,28 where
we held that only the OSG can bring or defend actions on behalf of the Republic or represent the
People or the State in criminal proceedings pending in this Court and the CA.
While there may be rare occasions when the offended party may be allowed to pursue the criminal
action on his own behalf,29 as when there is a denial of due process, this exceptional circumstance
does not obtain in the instant case.
Before the CA, the OSG itself opined that the petition therein was fatally defective for having been filed
without the OSGs participation. Before this Court, petitioner failed to advance any justification or
excuse why she failed to seek the assistance of the OSG when she sought relief from the CA, other
than the personal belief that the OSG was burdened with so many cases. Thus, we find no reversible
error to disturb the CAs ruling.
Petitioner, however, is not without any recourse. In Rodriguez v. Gadiane,30 we held:
It is well-settled that in criminal cases where the offended party is the State, the interest of the
private complainant or the private offended party is limited to the civil liability. Thus, in the prosecution
of the offense, the complainants role is limited to that of a witness for the prosecution. If a criminal
case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal
aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General
may represent the People of the Philippines on appeal. The private offended party or complainant may
not take such appeal. However, the said offended party or complainant may appeal the civil aspect
despite the acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is
alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or
on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved.
In such case, the aggrieved parties are the State and the private offended party or complainant. The
complainant has an interest in the civil aspect of the case so he may file such special civil action
questioning the decision or action of the respondent court on jurisdictional grounds. In so doing,
complainant should not bring the action in the name of the People of the Philippines. The action may
be prosecuted in name of said complainant.31
On this ground alone, the instant Petition fails. Even on the issue of the RTCs dismissal of the case, the
Petition ought to be denied.
Section 6(a), Rule 112 of the Revised Rules on Criminal Procedure clearly provides:
SEC.6.When warrant of arrest may issue.(a) By the Regional Trial Court.Within ten (10) days
from the filing of the complaint or information, the judge shall personally evaluate the resolution of the
prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary investigation or when the complaint or information was
filed pursuant to sec-tion 7 of this Rule. In case of doubt on the existence of probable cause, the judge
may order the prosecutor to present additional evidence within five (5) days from notice and the issue
must be resolved by the court within thirty (30) days from the filing of the complaint or information.32
Pursuant to the aforementioned provision, the RTC judge, upon the filing of an Information, has the
following options: (1) dismiss the case if the evidence on record clearly failed to establish probable
cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the
existence of probable cause, order the prosecutor to present additional evidence within five days from
notice, the issue to be resolved by the court within thirty days from the filing of the information.33
It bears stressing that the judge is required to personally evaluate the resolution of the prosecutor and
its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause.34 This, the RTC judge clearly complied with in this case.
WHEREFORE, the Petition is DENIED. The Resolution of the Court of Appeals dated January 7, 2008 is
AFFIRMED. Costs against petitioner.
SO ORDERED.

462
SUPREME COURT REPORTS ANNOTATED
Crespo vs. Mogul
No. L-53373. June 30, 1987.*
MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL
COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the
SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents.

Criminal Procedure; A court that grant a motion of the fiscal to dismiss a case commits no error and
the fiscals view thereon, in a clash of views with the judge or complainant, should normally prevail.
Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so,
and Courts that grant the same commit no error. The fiscal may re-investigate a case and
subsequently move for the dismissal should the re-investigation show either that the defendant is
innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between
the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party
or the defendant, those of the fiscals should normally prevail. On the other hand, neither an
injunction, preliminary or final nor a writ of prohibition may be issued by the Courts to restrain a
criminal prosecution except in the extreme case where it is necessary for the Courts to do so for the
orderly administration of justice or to prevent the use of the strong arm of the law in an oppressive and
vindictive manner.
Same; Once an information is filed in court, the courts prior permission must be secured if fiscal wants
to reinvestigate the case.The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution of the accused is terminated
upon the filing of the information in the proper court. In turn, as above stated, the filing of said
information sets in motion the criminal action against the accused in Court. Should the fiscal find it
proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be
secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted
to the Court for appropriate action. 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.
Same; Same.Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was
submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and
require that the trial on the merits proceed for the proper determination of the case,
Same; Where the court refuses to grant the fiscals motion to dismiss, including a case where the
Secretary of Justice ordered the fiscal to move to dismiss the case, the fiscal should continue to appear
in the case although he may turn over the presentation of evidence to the private prosecutor.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not
believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of
the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role
of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure
the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it
is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to
enable the Court to arrive at its own independent judgment as to whether the accused should be
convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of
the Philippines even under such circumstances much less should he abandon the prosecution of the
case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and
void. The least that the fiscal should do is to continue to appear for the prosecution although he may
turn over the presentation of the evidence to the private prosecutor but still under his direction and
control.
PETITION to review the decision of the Circuit Criminal Court of Lucena City. Mogul, J.
The facts are stated in the opinion of the Court.
GANCAYCO, J.:
The issue raised in this case is whether the trial court acting on a motion to dismiss a criminal case
filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the
merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an
information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was
docketed as Criminal Case No. CCCIX-52 (Quezon) 77.1 When the case was set for arraignment the
accused filed a motion to defer arraignment on the ground that there was a pending petition for review
filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of
the information. In an order of August 1,1977, the presiding judge, His Honor, Leodegario L. Mogul,
denied the motion.2 A motion for reconsideration of the order was denied in the order of August 5,
1977 but the arraignment was deferred to August 18, 1977 to afford time for petitioner to elevate the
matter to the appellate court.3
A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the
accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978.4 In an order of August 17,
1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the
accused until further orders of the Court.5 In a comment that was filed by the Solicitor General he
recommended that the petition be given due course.6 On May 15, 1978 a decision was rendered by

the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat
to compel the arraignment of the accused in the case until the Department of Justice shall have finally
resolved the petition for review,7
On March 22, 1978 then Undersecretary of Justice, Hon. Catalino Macaraig, Jr.. resolving the petition for
review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for
immediate dismissal of the information filed against the accused.8 A motion to dismiss for insufficiency
of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court,9 attaching
thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private
prosecutor was given time to file an opposition thereto.10 On November 24, 1978 the Judge denied the
motion and set the arraignment stating:
ORDER
For resolution is a motion to dismiss this case filed by the prosecuting fiscal premised on insufficiency
of evidence, as suggested by the Undersecretary of Justice, evident from Annex A of the motion
wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check
involved having been issued for the payment of a pre-existing obligation the liability of the drawer can
only be civil and not criminal.
The motions thrust being to induce this Court to resolve the innocence of the accused on evidence not
before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards
the requirements of due process but also erodes the Courts independence and integrity, the motion is
considered as without merit and therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 oclock in the
morning.
SO ORDERED.11
The accused then filed a petition for certiorari, prohibition and mandamus with petition for the
issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals
that was docketed as CA-G.R. No, SP08777.12 On January 23, 1979 a restraining order was issued by
the Court of Appeals against the threatened act of arraignment of the accused until further orders from
the Court.13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted
the restraining order of January 23, 1979.14 A motion for reconsideration of said decision filed by the
accused was denied in a resolution of February 19, 1980.15
Hence this petition for review of said decision was filed by accused whereby petitioner prays that said
decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat
to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information
filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and
declaring the obligation of petitioner as purely civil.16 In a resolution of May 19,1980, the Second
Division of this Court without giving due course to the petition required the respondents to comment to
the petition, not to file a motion to dismiss, within ten (10) days from notice. In the comment filed by
the Solicitor General he recommends that the petition be given due course, it being meritorious.
Private respondent through counsel filed his reply to the comment and a separate comment to the
petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second
Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February
26, 1981, the Court En Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the Solicitor General filed a
Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be
reversed and that respondent Judge be ordered to dismiss the information.
It is a cardinal principle that all criminal actions either commenced by complaint or by information shall
be prosecuted under the direction and control of the fiscal.17 The institution of a criminal action
depends upon the sound discretion of the fiscal. He may or may not file the complaint or information,
follow or not follow that presented by the offended party, according to whether the evidence in his
opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt.18 The
reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent
malicious or unfounded prosecution by private persons.19 It cannot be controlled by the
cornplainant.20 Prosecuting officers under the power vested in them by law, not only have the
authority but also the duty of prosecuting persons who, according to the evidence received from the
complainant, are shown to be guilty of a crime committed within the jurisdiction of their office.21 They
have equally the legal duty not to prosecute when after an investigation they become convinced that
the evidence adduced is not sufficient to establish a prima facie case.22
It is through the conduct of a preliminary investigation23 that the fiscal determines the existence of a
prima facie case that would warrant the prosecution of a case. The Courts cannot interfere with the
fiscals discretion and control of the criminal prosecution. It is not prudent or even permissible for a
Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he
finds that the evidence relied upon by him is insufficient for conviction.24 Neither has the Court any
power to order the fiscal to prosecute or file an information within a certain period of time, since this
would interfere with the fiscals discretion and control of criminal prosecutions.25 Thus, a fiscal who
asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that
grant the same commit no error.26 The fiscal may re-investigate a case and subsequently move for the
dismissal should the re-investigation show either that the defendant is innocent or that his guilt may

not be established beyond reasonable doubt.27 In a clash of views between the judge who did not
investigate and the fiscal who did, or between the fiscal and the offended party or the defendant,
those of the Fiscals should normally prevail.28 On the other hand, neither an injunction, preliminary or
final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution29 except in
the extreme case where it is necessary for the Courts to do so for the orderly administration of justice
or to prevent the use of the strong arm of the law in an oppressive and vindictive manner.30
However, the action of the fiscal or prosecutor is not without any limitation or control. The same is
subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe
and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or
reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a
motion to dismiss the case be filed in Court or otherwise, that an information be filed in Court.31
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires
jurisdiction over the case, which is the authority to hear and determine the case.32 When after the
filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court
and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court
thereby acquired jurisdiction over the person of the accused.33
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in. motion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action.34 While it is true that the fiscal has the quasi judicial discretion to determine
whether or not a criminal case should be filed in court or not, once the case had already been brought
to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be
addressed for the consideration of the Court.35 The only qualification is that the action of the Court
must not impair the substantial rights of the accused.36 or the right of the People to due process of
law.36a
Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court,
the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on
the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not
believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of
the case thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done
and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of
his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of
the prosecution to the Court to enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such circumstances much less
should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then
the entire proceedings will be null and void.37 The least that the fiscal should do is to continue to
appear for the prosecution although he may turn over the presentation of the evidence to the private
prosecutor but still under his direction and control.38
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the
investigation.
In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed
the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when
the complaint or information has already been filed in Court. The matter should be left entirely for the
determination

504
SUPREME COURT REPORTS ANNOTATED
Santos vs. Orda, Jr.

G.R. No. 158236. September 1, 2004.*

LIGAYA V. SANTOS, petitioner, vs. DOMINGO I. ORDA, JR., respondent.
Criminal Procedure; Information; Dismissal; Once a criminal complaint or information is filed in court,
any disposition of the case or dismissal or acquittal or conviction of the accused rests within the
exclusive jurisdiction, competence, and discretion of the trial court.In Crespo v. Mogul, the Court held
that once a criminal complaint or information is filed in court, any disposition of the case or dismissal
or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and
discretion of the trial court. The trial court is the best and sole judge on what to do with the case
before it. A motion to dismiss the case filed by the public prosecutor should be addressed to the court
who has the option to grant or deny the same. Contrary to the contention of the petitioner, the rule
applies to a motion to withdraw the Information or to dismiss the case even before or after
arraignment of the accused. 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 or the private complainant to due process of
law. When the trial court grants a motion of the public prosecutor to dismiss the case, or to quash the
Information, or to withdraw the Information in compliance with the directive of the Secretary of Justice,
or to deny the said motion, it does so not out of subservience to or defiance of the directive of the
Secretary of Justice but in sound exercise of its judicial prerogative.
Same; Same; Same; The trial court should not rely solely and merely on the findings of the public
prosecutor or the Secretary of Justice that no crime was committed on that the evidence in the
possession of the public prosecutor is insufficient to support a judgment of conviction of the accused.
In resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor
on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of
evidence in the possession of the prosecutor or for lack of probable cause, the trial court should not
rely solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime
was committed or that the evidence in the possession of the public prosecutor is insufficient to support
a judgment of conviction of the accused. As the Court emphasized in Martinez v. Court of Appeals, the
trial court must make an independent evaluation or assessment of the merits of the case and the
evidence on record of the prosecution.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Roan I. Libarios and Francis L. Rafil for petitioner L. Santos.
Rosario Ester B. Orda and Domingo Orda for respondent.
SUPREME COURT REPORTS ANNOTATED
Santos vs. Orda, Jr.
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. SP No.
72962 granting the petition for certiorari filed by Domingo I. Orda, Jr. and nullifying the Orders2 of the
Regional Trial Court of Paraaque City, Branch 258 dated July 5, 2002 and July 23, 2002 in People v.
Ligaya V. Santos, et al., for murder, docketed as Criminal Cases Nos. 01-0921 and 01-0425.
The Antecedents
On January 17, 2001, Dale B. Orda, a college student and son of respondent, Assistant City Prosecutor
of Manila Domingo Orda, Jr., was shot by a male person on a motorcycle at the corner of Ayala
Boulevard and San Marcelino Street, Manila. Dale was then seated at the passengers seat at the back
of their car, while his father was at the wheel. Fortunately, Dale survived the shooting.3
At about 6:20 p.m. on April 2, 2001, another son of the respondent, Francis Orda, a twenty-year-old
senior engineering student of the Mapua Institute of Technology, was shot to death at Saudi Arabia
Street corner Sierra Leone Street, Better Living Subdivision, Barangay Don Bosco, Paraaque City. Gina
Azarcon, a helper at the Bakers Brew Coffee Shop at the corner of Saudi Arabia and Somalia Streets,
Barangay Don Bosco, gave a sworn statement to the police investigators on April 1, 2001, declaring
that three male persons perpetrated the crime, two of whom shot the victim inside his car.4
On April 7, 2001, Azarcon gave a supplemental affidavit pointing to and identifying Rolly Tonion and
Jhunrey Soriano as two of the assailants.5 An Information was filed in the RTC of Paraaque City,
docketed as Criminal Case No. 01-0425 on April 18, 2001,charging Rolly Tonion alias Komang and
Jhunrey Soriano with murder for the killing of Francis Orda.6
The accused filed a petition for bail. The prosecution presented Gina Azarcon as its witness in
opposition to the petition.
On June 7, 2001, Ernesto M. Regala and his son, Dennis C. Regala, a barangay tanod of Barangay 659,
Arroceros, Ermita, Manila, executed separate affidavits before the Assistant City Prosecutor of
Paraaque City. Ernesto narrated that at about 10:00 p.m. on April 1, 2001, he sent his son, Dennis, to
deliver collections from the public toilet at Arroceros to Barangay Chairman Ligaya Santos. When
Dennis had not yet arrived by 11:00 p.m., he decided to fetch his son. While they were in Santos
office, Dennis and Ernesto heard Santos saying, Gusto ko malinis na trabaho at walang bulilyaso, baka

makaligtas na naman si Orda. They saw Santos give a gun to Rolly Tonion, who was then with Edna
Cortez, a certain Nognog, Ronnie Ybaez, and another male companion. Dennis then gave Ernestos
collection amounting to P400 to Santos. At 11:00 p.m. on April 2, 2001, Cortez told Ernesto that the
son of the assistant city prosecutor was ambushed at the Better Living Subdivision, and that the latter
was fortunate because the bullet intended for him hit his son instead.7 For his part, Dennis alleged
that at 9:00 a.m. on April 3, 2001, Tonion asked him to return the gun to Santos for him, but that he
refused to do so. On April 15, 2001, Santos asked him to monitor the activities of the respondent and
his son at the store owned by the latter, located at the LRT Station at Arroceros.
The respondent executed an affidavit-complaint dated June 7, 2001 and filed the same in the Office of
the City Prosecutor of Paraaque City, charging Santos, Cortez and Ybaez with murder for the death
of his son Francis.8 The case was docketed as I.S. No. 01-F-2052.
In her counter-affidavit, Santos denied the charge and claimed that the affidavits executed by Ernesto
and Dennis were all lies. She averred that she was in their house in Cavite City on April 1, 2001 and
returned to Manila only in the early morning of April 2, 2001. Her alibi was corroborated by the
affidavits of Anthony Alejado, Marianito Fuentes, Normita Samonte, and Lilian Lemery. She also denied
Dennis claims that she asked him to monitor the activities of the respondent and his son on April 15,
2001. She alleged that the respondent filed the charge and other baseless charges against her to
enable him to gain control over Plaza Lawton where his store was located.
Cortez also denied the charge. She claimed in her affidavit that Santos was not in her office on April 1,
2001, it being a Sunday. She alleged that the affidavits of Dennis and Ernesto were lies.
On July 31, 2001, the investigating prosecutor issued a Resolution finding probable cause against
Santos and Cortez for murder.9 An Information for murder was, thereafter, filed on August 29, 2001
against Santos and Cortez, docketed as Criminal Case No. 01-0921.10
On August 30, 2001, Azarcon executed an affidavit implicating Barangay Kagawad Christopher Castillo,
his brother Girlie Castillo, and Robert Bunda for the killing of Francis. On the same day, the respondent
executed an affidavit-complaint charging them for the same crime.11 On September 7, 2001, the trial
court issued an Order requiring the prosecutor to submit additional evidence against Cortez.12 Sabino
M. Frias, thereafter, executed an affidavit on September 18, 2001, implicating Santos, Cortez, the
Castillo brothers, Bunda, and Pedro Jimenez, the driver of Santos, in the killing of Francis.13
Meanwhile, Santos, Cortez, and Ybaez filed a petition for review of the resolution of the prosecutor in
I.S. No. 01-F-2052 in the Department of Justice (DOJ).14 On their motion, the trial court suspended the
proceedings against Santos and Cortez and the issuance of warrants for their arrest. However, on
September 12, 2001, Azarcon executed an affidavit recanting her statement against the Castillo
brothers and Bunda.15
In the meantime, during the hearing on October 23, 2001, the prosecution terminated the presentation
of its testimonial evidence in Criminal Case No. 01-0425 on the accused Tonion and Sorianos petition
for bail and offered its documentary evidence. The accused presented Azarcon as their first witness to
prove their innocence of the crime charged.
On November 12, 2001, the public prosecutor issued a Resolution in I.S. No. 01-H-3410 finding
probable cause for murder against the Castillo brothers and Bunda. On November 28, 2001, the public
prosecutor filed a motion to amend information and to admit amended information against them as
additional accused.16 The accused, thereafter, filed a petition for review of the resolution of the public
prosecutor before the DOJ on January 7, 2002.17 They also filed a motion to suspend proceedings and
the issuance of warrants of arrest in Criminal Cases Nos. 01-0425 and 01-0921 and a motion to admit
newly discovered evidence, namely, Azarcons affidavit of recantation.18 The public prosecutor
opposed the motion and filed a motion to admit second amended information with Pedro Jimenez as
additional accused.19 On February 5, 2002, the trial court issued an Order denying the motion of the
accused Castillo brothers and Bunda and ordering the issuance of warrants for the arrest of Santos and
Cortez.20 The court then issued the said warrants based on its finding of probable cause against
them21 for lack of probable cause to recall the warrants of arrest, and to examine the witnesses. The
court, however, denied the motion on the ground that it had not yet acquired jurisdiction over their
persons and it had not yet received any resolution from the Secretary of Justice on their petition for
review. On February 20, 2002, the trial court issued an Order denying the petition for bail by Tonion
and Soriano,22 ruling that the evidence of guilt was strong. In the meantime, Ernesto and Dennis
recanted their affidavits.23 During the trial on April 23, 2002 in Criminal Case No. 01-0425, accused
Tonion and Soriano presented Dennis as their witness.24
On April 26, 2002, the trial court issued an Order admitting the second amended Information against
the Castillo brothers, Bunda, and Jimenez and ordering the issuance of warrants for their arrest.25 On
April 29, 2002, the said warrants were issued by the court.
On June 11, 2002, Secretary of Justice Hernando B. Perez issued a Joint Resolution reversing the
assailed resolution of the public prosecutor and directing the latter to withdraw the Informations
against Santos, Cortez, Bunda, the Castillo brothers, and Jimenez. The Secretary of Justice found
Azarcon, Frias, Dennis, and Ernesto incredible witnesses because of their recantations, to wit:
WHEREFORE, the petition is GRANTED and the assailed resolutions are hereby REVERSED AND SET
ASIDE. The City Prosecutor of Paraaque City is hereby directed to cause the withdrawal of the criminal
Informations for murder filed before the Regional Trial Court, Branch 258, Paraaque City, against
respondents LIGAYA SANTOS, EDNA CORTEZ and RONNIE YBAEZ (I.S. No. 01-F-2052) and against

respondents CHRISTOPHER and GIRLIE CASTILLO and ROBERT BUNDA (I.S. No. 01-H-3410) and to
report to this Department the action taken within ten (10) days from receipt hereof.
SO ORDERED.26
On June 27, 2002, the respondent filed a motion for reconsideration thereof. However, the public
prosecutor filed a motion to withdraw the Informations in the two cases on June 20, 2002 in
compliance with the joint resolution of the Secretary of Justice. On July 2, 2002, the respondent filed a
comment/opposition to the motion to withdraw the Informations filed by the public prosecutor,
contending:
I. THAT COMPLAINANT HEREBY ADOPTS ITS POSITION RAISED IN ITS MOTION FOR RECONSIDERATION
FILED WITH THE DEPARTMENT OF JUSTICE (COPY ATTACHED AS ANNEX A). HENCE, THE
DETERMINATION OF THE INSTANT MOTION IS STILL
PREMATURE ESPECIALLY SO THAT ALL THE ACCUSED-MOVANTS ARE STILL AT LARGE, EVADING SERVICE
OF ARREST WARRANT, IN WHICH CASE THEY ARE NOT ENTITLED TO ANY RELIEF;
II. THAT THE LATE (SIC) FINDINGS OF NO PROBABLE CAUSE FOR THE ACCUSED BY THE DEPARTMENT
OF JUSTICE IS NOT BINDING;
III. THAT THE HONORABLE COURT HAS JUDICIOUSLY AND SOUNDLY ADJUDGED THE EXISTENCE OF
PROBABLE CAUSE; and,
IV. THAT TO GIVE DUE COURSE TO THE INSTANT MOTION WOULD ONLY CREATE CHAOS AND
INJUSTICE.27
Pending resolution of the motion for reconsideration, the trial court issued an Order on July 5, 2002
granting the motion of the public prosecutor to withdraw the Informations in the interest of justice and
equity.28 The trial court ruled that such withdrawal would not prevent the refiling of the Informations
against the accused who would not be able to invoke double jeopardy, considering that the court had
not yet acquired jurisdiction over their persons. The private complainant filed a motion for
reconsideration of the order which was not opposed by the public prosecutor. Nonetheless, on July 23,
2002, the trial court issued an Order denying the motion on the ground that it could not order the
refiling of the Informations if the DOJ and the public prosecutor refused to do so.29
The respondent forthwith filed a petition for certiorari with the Court of Appeals (CA) assailing the
orders of the trial court.
On March 19, 2003, the CA rendered a Decision granting the petition. The appellate court ruled that
the trial court abused its discretion in granting the withdrawal of the Informations without making an
independent evaluation on the merits of the case. Santos filed a motion for reconsideration of the
decision and a supplement to the said motion, which was opposed by the respondent. On May 6, 2003,
Santos and Cortez were arrested based on the warrants issued by the trial court. On May 22, 2003, the
CA issued a resolution denying the said motion for reconsideration for lack of merit.Santos filed a
petition for review on certiorari with this Court contending as follows:
A.) THE COURT OF APPEALS ERRED GRAVELY AND ACTED ARBITRARILY IN NULLIFYING THE ORDER OF
THE TRIAL COURT GRANTING THE PROSECUTIONS MOTION TO WITHDRAW THE INFORMATIONS IN
CRIMINAL CASES NOS. 01-0921 AND 01-0425 PURSUANT TO DOJ JOINT RESOLUTION DATED 11 JUNE
2002.
B.) THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DIRECTLY REINSTATING THE CRIMINAL
COMPLAINTS, INCLUDING THE WARRANTS OF ARREST, WITHOUT AFFORDING THE TRIAL COURT THE
OPPORTUNITY TO EXERCISE ITS JUDICIAL PREROGATIVE OF DETERMINING WHETHER TO PURSUE OR
DISMISS THE COMPLAINTS PURSUANT TO ITS OWN EVALUATION OF THE CASE AND EVIDENCE IN LIGHT
OF THE DOJ JOINT RESOLUTION FINDING LACK OF PROBABLE CAUSE.30
The threshold issue is whether or not the trial court committed grave abuse of its discretion amounting
to excess or lack of jurisdiction in granting the public prosecutors motion to withdraw the Informations
and in lifting the warrant of arrest against the petitioner on the Secretary of Justices finding that there
was no probable cause for the filing of the said Informations.
The petitioner avers that the trial court did not abuse its judicial discretion when it granted the motion
of the public prosecutor to withdraw the two Informations as ordered by the Secretary of Justice in his
Joint Resolution on the finding that there was no probable cause against the accused therein to be
charged with murder. The petitioner asserts that, by allowing the withdrawal of the Informations
without an independent assessment of the merit of the evidence and without prejudice to the refiling
thereof, the court did not thereby order the dismissal of the cases for insufficiency of evidence. The
petitioner posits that, after all, the trial court had not yet acquired complete criminal jurisdiction to
resolve the cases because it had not yet acquired jurisdiction over the persons of all the accused. The
petitioner argues that the CA erred in relying on the rulings of this Court in Crespo v. Mogul31 and
Perez v. Hagonoy Rural Bank, Inc.32 because the said cases involve the withdrawal of the Informations
and the dismissal of the cases for insufficiency of evidence. In contrast, the public prosecutor filed a
motion merely to withdraw the Informations and not to dismiss the cases due to insufficiency of
evidence.
In its comment on the petition, the Office of the Solicitor General (OSG) avers that the decision of the
CA is in conformity with the rulings of this Court in Balgos, Jr. v. Sandiganbayan,33 Dee v. Court of

Appeals,34 Roberts, Jr. v. Court of Appeals,35 Ledesma v. Court of Appeals,36 Jalandoni v. Drilon 37
and Solar Team Entertainment, Inc. v. How.38 The OSG asserts that the rulings of this Court apply
whether the motion filed by the public prosecutor was for the withdrawal of the Informations due to
lack of probable cause or insufficiency of evidence. The OSG avers that the trial court had acquired
jurisdiction over the persons of all the accused, either by their respective arrests or by the filing of
pleadings before the court praying for affirmative reliefs.
In her reply to the comment of the OSG, the petitioner insisted that she did not submit herself to the
jurisdiction of the trial court by filing her motion to quash the Informations for lack of probable cause
and to examine the witnesses before the issuance of the warrant of arrest against her. As the trial
court itself held, it had not yet acquired jurisdiction over her person.
In nullifying the assailed orders of the trial court, the appellate court ratiocinated as follows:
To support these assigned errors, petitioner contends that the respondent Judge committed grave
abuse of discretion when he granted the Motion to Withdraw Informations filed by his trial prosecutor
based on the Joint Resolution of the Department of Justice and in denying petitioners motion for
reconsideration.
We resolve to grant this petition considering that this contention is impressed with merit.
The rule, therefore, in this jurisdiction is that once a complaint or information is filed in Court, any
disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court which has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the
investigation (Crespo v. Mogul, 151 SCRA 462).
However, if the trial court has failed to make an independent finding of the merits of the case or make
an independent evaluation or assessment of the merits of the case, but merely anchored the dismissal
of the case on the revised position of the prosecution, the trial court has relinquished the discretion he
was duty-bound to exercise because, in effect, it is the prosecution through the Department of Justice
which decides what to do and that the trial court was reduced into a mere rubber stamp, in violation of
the ruling in Crespo vs. Mogul (Martinez vs. Court of Appeals, 237 SCRA 576, 577), which is the
situation obtaining in this case considering that the dismissal of the criminal cases against private
respondents was based solely on [the] recommendation of the Secretary of Justice because the
reliance of public respondent Judge was based solely on the prosecutors averment that the Secretary
of Justice had recommended the dismissal of the case against private respondent which is an
abdication of the trial courts duty and jurisdiction to determine a prima facie case, in blatant violation
of the courts pronouncement in Crespo vs. Mogul (Perez vs. Hagonoy Rural Bank, 327 SCRA 588).
Moreover, public respondent having already issued the warrants of arrest on private respondents
which, in effect, means that a probable cause exists in those criminal cases, it was an error to dismiss
those cases without making an independent evaluation especially that the bases of the probable cause
are the same evidence which mere made the bases of the Joint Resolution dated June 11, 2002 of the
Secretary of Justice. Consequently, the dismissal order dated July 5, 2002 having been issued upon an
erroneous exercise of judicial discretion, the same must have to be set aside.39
We agree with the appellate court.
In Crespo v. Mogul,40 the Court held that once a criminal complaint or information is filed in court, any
disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive
jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on
what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should
be addressed to the court who has the option to grant or deny the same. Contrary to the contention of
the petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even
before or after arraignment of the accused.41 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 or the private complainant to
due process of law.42 When the trial court grants a motion of the public prosecutor to dismiss the case,
or to quash the Information, or to withdraw the Information in compliance with the directive of the
Secretary of Justice, or to deny the said motion, it does so not out of subservience to or defiance of the
directive of the Secretary of Justice but in sound exercise of its judicial prerogative.43
In resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor
on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of
evidence in the possession of the prosecutor or for lack of probable cause, the trial court should not
rely solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime
was committed or that the evidence in the possession of the public prosecutor is insufficient to support
a judgment of conviction of the accused. As the Court emphasized in Martinez v. Court of Appeals,44
the trial court must make an independent evaluation or assessment of the merits of the case and the
evidence on record of the prosecution:
Secondly, the dismissal was based merely on the findings of the Acting Secretary of Justice that no libel
was committed. The trial judge did not make an independent evaluation or assessment of the merits of

the case. Reliance was placed solely on the conclusion of the prosecution that there is no sufficient
evidence against the said accused to ascertain the allegation in the information and on the supposed
lack of objection to the motion to dismiss, this last premise being, however, questionable, the
prosecution having failed, as observed, to give private complainant a copy of the motion to dismiss.
In other words, the grant of the motion to dismiss was based upon considerations other than the
judges own personal individual conviction that there was no case against the accused. Whether to
approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in
cases like this. The trial judge must himself be convinced that there was, indeed, no sufficient evidence
against the accused, and this conclusion can be arrived at only after an assessment of the evidence in
the possession of the prosecution. What was imperatively required was the trial judges own
assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial
discretion merely to accept the prosecutions word for its supposed insufficiency.
As aptly observed by the Office of the Solicitor General, in failing to make an independent finding of
the merits of the case and merely anchoring the dismissal on the revised position of the prosecution,
the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the
prosecution, through the Department of Justice which decided what to do and not the court which was
reduced to a mere rubber stamp in violation of the ruling in Crespo v. Mogul.
The dismissal order having been issued in violation of private complainants right to due process as
well as upon an erroneous exercise of judicial discretion, the Court of Appeals did not err in setting
aside said dismissal order and remanding the case to the trial court for arraignment of petitioner as
accused therein and for further proceedings.
Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of
Justice since it is mandated to independently evaluate or assess the merits of the case and it may
either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the
resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to
determine a prima facie case.45
The trial court may make an independent assessment of the merits of the case based on the affidavits
and counter-affidavits, documents, or evidence appended to the Information; the records of the public
prosecutor which the court may order the latter to produce before the court;46 or any evidence
already adduced before thecourt by the accused at the time the motion is filed by the public
prosecutor.
In this case, the trial court failed to make an independent assessment of the merits of the cases and
the evidence on record or in the possession of the public prosecutor. In granting the motion of the
public prosecutor to withdraw the Informations, the trial court relied solely on the joint resolution of the
Secretary of Justice, as gleaned from its assailed order:
For resolution is the Motion to Withdraw Criminal Informations filed on June 21, 2002 by the Office of
the City Prosecutor, this jurisdiction, to which a Comment/Opposition thereto was filed by private
complainant Domingo I. Orda, Jr. on July 2, 2002.
It appears that the motion is in compliance with the Joint Resolution of the Department of Justice (DOJ)
promulgated on June 11, 2002 directing said Office to cause the withdrawal of the criminal
informations for murder against the accused, Ligaya V. Santos, Edna Cortez, and Ronnie Ybaez, in
Crim. Case No. 01-0921 (I.S. No. 01-F-2052) and against Christopher Castillo, Girlie Castillo, and Robert
Bunda in Crim. Case No. 01-0425 (I.S. No. 01-H-3410), copy of which was received by this Court on
June 19, 2002.
The Court, after going over the Comment/Opposition filed by the private complainant, vis--vis the
Joint Motion for Reconsideration of the Resolution of the DOJ, is of the firm belief and honest opinion
and so holds that meanwhile that the Motion for Reconsideration of the private complainant is pending
before the DOJ, justice and equity dictates that this Court has to give due course to the Motion to
Withdraw the Criminal Informations, specially so that warrants for the arrest of all the accused have
been issued. No injustice, prejudice, or damage will be suffered by the private complainant considering
that if ever his Motion for Reconsideration will be granted by the DOJ, said criminal informations may
be refiled and the principle of double jeopardy cannot be invoked by all the accused as the Court has
not yet acquired jurisdiction over the persons. Upon the other hand, the warrants of arrest will serve as
swords of damocles hanging over the heads of the accused if the Court will rule otherwise.47
In granting the public prosecutors motion, the trial court abdicated its judicial power and acted as a
mere surrogate of the Secretary of Justice.
Worse, as gleaned from the above order, the trial court knew that the Joint Resolution of the Secretary
of Justice had not yet become final and executory because the respondent, the private complainant,
had filed a timely motion for the reconsideration thereof which had not yet been resolved by the
Secretary of Justice. It behooved the trial court to wait for the resolution of the Secretary of Justice on
the motion for reconsideration of the respondent before resolving the motion of the public prosecutor
to withdraw the Informations. In fine, the trial court acted with inordinate haste.
Had the trial court bothered to review its records before issuing its assailed order, it would have
recalled that aside from the affidavits of Azarcon, Ernesto and Dennis, there was also the affidavit of
Frias implicating the petitioner and the other accused to the killing of Francis and that it even gave
credence to the testimony and affidavit of Azarcon when it denied Tonion and Sorianos petition for

bail. Moreover, the trial court found probable cause against the petitioner and issued a warrant for her
arrest despite the pendency of her petition for review in the Department of Justice, only to make a
complete volte face because of the Joint Resolution of the Secretary of Justice.
The bare fact that the trial court had issued warrants of arrest against Santos, Cortez, the Castillo
brothers, and Bunda, who were the petitioners in the Department of Justice, did not warrant an outright
grant of the public prosecutors motion to withdraw the Informations. The court had already acquired
jurisdiction over the cases when the Informations were filed; hence, it had jurisdiction to resolve the
motion of the public prosecutor, one way or the other, on its merits. While it may be true that the
accused could be incarcerated, as warrants of arrest had already been issued against them pending
the resolution of the respondents motion for reconsideration, the same does not justify ignoring the
rules and running roughshod over the rights of the respondent. Justice and equity is not for the
accused alone; the State and the private complainant are entitled thereto, as well. Moreover, the
petitioner had submitted herself to the jurisdiction of the court when she filed her motion to examine
the witnesses, and suspend the proceedings and the issuance of a warrant for her arrest. The trial
court committed another travesty when it denied the motion for reconsideration of its July 5, 2002
Order, on its ratiocination that
In todays hearing on the Motion for Reconsideration, considering that the Public Prosecutor informed
the Court that their office will no longer file any opposition thereto, the said Motion for Reconsideration
is denied considering that the filing and the withdrawal of an Information is purely an executive
function and the Court cannot order the refiling if the Department of Justice or the Public Prosecutors
Office refuses to do so. . . . 48
This is so because the July 5, 2002 Order of the court had not yet become final and executory when the
private complainant filed her motion for reconsideration of the said order.49 Until and unless the July 5,
2002 Order shall have become final and executory, the Informations filed with the court were not yet
considered withdrawn. On the other hand, if the trial court had granted the motion for reconsideration
of the respondent and set aside its July 5, 2002 Order, there would no longer be a need to refile the
Informations.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed Decision of the
Court of Appeals is AFFIRMED.
SO ORDERED.
Adm. Case No. 7549.August 29, 2008.*
AURELIO M. SIERRA, complainant, vs. JHOSEP Y. LOPEZ, City Prosecutor of Manila, EUFROCINO SULLA,
1st Assistant City Prosecutor (ACP), ACP ALEXANDER T. YAP, ACP MARLO CAMPANILLA, and ACP
ARMANDO VELASCO, respondents.
Criminal Procedure; Preliminary Investigation; The provision of the Rules does not require a
confrontation between the parties; Preliminary investigation is ordinarily conducted through
submission of affidavits and supporting documents, through the exchange of pleadings.This provision
of the Rules does not require a confrontation between the parties. Preliminary investigation is
ordinarily conducted through submission of affidavits and supporting documents, through the
exchange of pleadings. In Rodis, Sr. v. Sandiganbayan, 166 SCRA 618 (1988), we ruled that(the New
Rules on Criminal Procedure) do not require as a condition sine qua non to the validity of the
proceedings (in the preliminary investigation) the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert evidence of the complainant is accorded him.
The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the
prosecution of offenses by hiding themselves or by employing dilatory tactics.
Same; Same; Since confrontation between the parties is not imperative, it follows that it is not
necessary that the counter-affidavit of respondent be sworn to before the investigating prosecutor
himself.Since confrontation between the parties is not imperative, it follows that it is not necessary
that the counter-affidavit of respondent be sworn to before the investigating prosecutor himself. It can
be sworn to before another prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3,
which states that the counter-affidavit shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section x x x; and paragraph (a), provides: the affidavits shall be subscribed and
sworn to before any prosecutor or government official or in their absence or unavailability, before a
notary public x x x.
Same; Same; The conduct of clarificatory questioning is discretionary upon the prosecutor; Decision to
call witnesses for clarificatory questions is addressed to the sound discretion of the investigator, and
the investigator alone.We hold that the investigating prosecutors did not abuse their discretion when
they denied the request of the complainant for the conduct of clarificatory questioning. Under
paragraph (e) of Section 3 above, the conduct of clarificatory questioning is discretionary upon the
prosecutor. Indeed, we already held in Webb v. De Leon, 247 SCRA 653 (1995), that the decision to call
witnesses for clarificatory questions is addressed to the sound discretion of the investigator, and the
investigator alone.
ADMINISTRATIVE MATTER in the Supreme Court. Dereliction of Duty and Gross Ignorance of the Law.
The facts are stated in the opinion of the Court.
NACHURA,J.:

The instant controversy arose from a complaint for dereliction of duty and gross ignorance of the law
by Aurelio M. Sierra against City Prosecutor of Manila Jhosep Y. Lopez, 1st Assistant City Prosecutor
(ACP) Eufrocino Sulla, Assistant City Prosecutors Alexander Yap, Marlo Campanilla and Armando
Velasco.
The facts of the case are as follows:
On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed several cases before the
Office of the City Prosecutor of Manila for Misrepresentation through Deceit and Syndicated Large Scale
Fraud in Land Titling with Conspiracy, Land Grabbing, Falsification of Public Document and Economic
Sabotage.
These cases were first assigned to ACP Alexander T. Yap. The principal respondents therein, namely:
Alfredo C. Ramos, Presentacion Ramos, George S.K. Ty, Atty. Emmanuel Leonardo, and a certain Mr.
Cayaban, did not appear during the scheduled hearing. However, Alfredo and Presentacion Ramos
appeared in the morning of that day ahead of the complainant in which they submitted their respective
counter-affidavits, subscribed and sworn to before ACP Yap. The respondents asked that they be
allowed to submit their counter-affidavits ahead of the scheduled hearing because they had an urgent
matter to attend to in the afternoon. In the case of George S.K. Ty and Mr. Cayaban, their respective
counter-affidavits were submitted by their lawyers during the scheduled hearing in the afternoon,
already subscribed and sworn to before a Pasig Prosecutor. Atty. Leonardo did not submit any counteraffidavit.
Because of ACP Yaps failure to require the presence of respondents in said cases simultaneously with
the complainant, Mr. Sierra asked for the prosecutors inhibition. The cases were then re-raffled to the
respondent ACP Marlo Campanilla who likewise did not require the presence of the respondents in the
preliminary investigation. Because of this, he too was asked to inhibit from the cases by complainant.
The cases were then re-raffled to ACP Armando Velasco who also handled the cases in the same
manner as the two other prosecutors before him. City Prosecutor Jhosep Y. Lopez and 1st ACP Eufrocino
A. Sulla affirmed the correctness of the manner in which their investigating prosecutors handled the
cases.
On April 26, 2007, Sierra filed a complaint with the Supreme Court for dereliction of duty and gross
ignorance of the law against City Prosecutor Lopez, 1st ACP Sulla, ACP Yap, ACP Campanilla, and ACP
Velasco.
In his complaint, Sierra raises the following questions of law: (1) whether the parties must appear
together before the investigating prosecutor during preliminary investigation; (2) whether the counteraffidavits of the respondents should be sworn to only before the investigating prosecutor; and (3)
whether the investigating prosecutor erred in denying the request of the complainant for clarificatory
questioning. The Supreme Court Third Division then issued a Resolution dated July 25, 2008 requiring
respondents to comment on the complaint.
In compliance with the Honorable Courts order, respondents filed their Comment dated March 7, 2008
stating that they handled the cases properly and in accordance with what was provided by law. They
also argued that they had not committed any dereliction of duty and gross ignorance of the law.
We find no merit in the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays down the basic procedure in preliminary
investigation, as follows:
Sec.3.Procedure.The preliminary investigation shall be conducted in the following manner:
(a)The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies
for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or unavailability, before a
notary public, each of whom must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
(b)Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent, and
these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.
(c)Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits
and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counter-affidavits, shall be subscribed and
sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him

to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counteraffidavit.
(d)If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
(e)The investigating officer may set a hearing if there are facts and issues to be clarified from a party
or a witness. The parties can be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer questions which may be asked to the
party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five
(5) days.
(f)Within ten (10) days after the investigation, the investigating officer shall determine whether or
not there is sufficient ground to hold the respondent for trial.
This provision of the Rules does not require a confrontation between the parties. Preliminary
investigation is ordinarily conducted through submission of affidavits and supporting documents,
through the exchange of pleadings.
In Rodis, Sr. v. Sandiganbayan1 we ruled that
(the New Rules on Criminal Procedure) do not require as a condition sine qua non to the validity of the
proceedings (in the preliminary investigation) the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert evidence of the complainant is accorded him.
The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the
prosecution of offenses by hiding themselves or by employing dilatory tactics.
Since confrontation between the parties is not imperative, it follows that it is not necessary that the
counter-affidavit of respondent be sworn to before the investigating prosecutor himself. It can be sworn
to before another prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3, which
states that the counter-affidavit shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section x x x; and paragraph (a), provides:
the affidavits shall be subscribed and sworn to before any prosecutor or government official or in their
absence or unavailability, before a notary public x x x.
Lastly, we hold that the investigating prosecutors did not abuse their discretion when they denied the
request of the complainant for the conduct of clarificatory questioning. Under paragraph (e) of Section
3 above, the conduct of clarificatory questioning is discretionary upon the prosecutor. Indeed, we
already held in Webb v. De Leon2 that the decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator, and the investigator alone.
WHEREFORE, premises considered, the complaint is DENIED for lack of merit.
SO ORDERED.
Ynares-Santiago (Chairperson), Austria-Martinez, Chico-Nazario and Reyes, JJ., concur.
Complaint denied.