THIRD DIVISION

[G.R. No. 104645. July 23, 1998]

AL LIO ! RNALD " # N, petitioner, vs. HON. ANITA A$ORA D %ASTRO, J&DG , !R. 46, R GIONAL TRIAL %O&RT, !A%OLOD %IT', respondent. D
#&RISI$A, J.(

%ISION

Presented on 26 April 1991, in Criminal Case No. 10126 before the Regional Trial Court, ran!h "6, a!olod Cit#, the $nformation %1& !harging 'rnesto (a)a # Palmares and one (ohn *oe +ith a )iolation of Arti!le ,- (a) and (b) in relation to Arti!le ,9 .b/ %2& of the 0abor Code, as amended, alleges1 That on or about the month of April, 1991, in the City of Bacolod, Philippines, and

within the jurisdiction of this Honorable Court, the herein accused, conspiring, confederating, and mutually helping each other, did, then and there wilfully, unlawfully and feloniously recruit the said herein offended parties !uillerma "armiento #ose #ayme $rancisco !ome% &ilfredo 'strebor #elson #aime '(elyn )auron *eynaldo !ome% #uanito #aime *odrigo +ndrado #ocelyn )auron for employment in the Pro(ince of ,ambales, )u%on, Philippines, under the business name of !ood &isdom for All -ations, .nc/, without first securing the necessary license or authority to engage in recruitment acti(ities in Bacolod City from the 0epartment of

)abor and 'mployment, in (iolation of the aforementioned law/ Contrary to law/1

2n 3a# 29, 1991, t+o +ee4s before the s!heduled arraignment thereunder, the Cit# Prose!utor, Att#. 3el5uiades N. Centeno, submitted an 6 Urgent Motion To Amend the Information;%,& stating, inter alia1 That contrary to the .nformation that the other accused is a #ohn 0oe, copies of the

Affida(its of offended parties and 2of the3 Bacolod City P-P indorsements had clearly identified the other accused as one by the name of A)').+ B'*-A)0', P'- of !ood &isdom for All -ations .nc/, located at *oom 456, Tra(ellers .nn, 7a8ati A(enue, 7a8ati, 7etro 7anila9 That li8ewise the .nformation failed to allege the :ualifying circumstances attending the offense charged and ma8ing its penalties 2sic3 fall under "ection ;9 <a= of the )abor Code of the Philippines as amended/1[4]
7o+e)er, the name (ohn *oe +as retained inad)ertentl# in su!h Amended $nformation. And so, on August 29, 1991, the same Cit# Prose!utor sent in a Second Amended Information%6& naming the !o:a!!used (ohn *oe as A0'0$2 'RNA0*'; P'N, and in )ie+ of the fa!t that a !apital offense is !harged, no bail +as re!ommended. The se!ond amended
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$nformation +as a!!ompanied b# a Resolution,%9& a)erring, among others, thus1 As maybe recalled 'rnesto #a(a was accused together with 7r/ Alelio B/ Pen while the

former was then detained, the latter was at large/ As a standard operating procedure in such cases, where one is at large, regular preliminary in(estigation is conducted on the respondent Pen/ *espondent was subpoenaed in his nown <sic= address, but the return showed that he can no longer be subpoenaed thereat/ >nder the circumstances of the case against him may already be decided on the basis of the e(idence of the complainant and his witnesses 2"ec/ ; <d= *ule 116 *e(ised *ules on Criminal Procedure3/ The e(idence on record are the sworn testimonies of the complaining witnesses that the accused 'rnesto #a(a and respondent Alelio Bernalde% Pen were wor8ing, conspiring and confederating together in recruiting the complainant <sic= as wor8ers for the proposed building of A(enue ":uare in the pro(ince of ,ambales, Philippines under the auspices of the !ood &isdom for All -ations, of which 7r/ Pen is the President/ Ta8en from the complainants wereP655/55 each as consideration for their ser(ices/ *ecent e(ents hwe(er, <sic= showed that the job offered were non?e@isting but a scheme to lure the (ictims and e@act money from them/ $urthermore, the firm was not registered as a licensed recruiter by the 0+)'/
<<<

The e(idence of complainant <sic= has been found to be sufficient in form and

substance/ And considering that complaint is unrebutted it is gi(en force and effect/1
2n =eptember 20, 1991, then Presiding (udge (ose Aguirre issued an 2rder %-& admitting the se!ond amended $nformation and on the strength thereof, issued a warrant of arrest against the herein petitioner, Alelio . Pen. 2n 2!tober 9, 1991, petitioner filed +ith the 2ffi!e of the Cit# Prose!utor a Motion To eclare Resolution ated August !", #$$# A Total %ullit& or %ull and 'oid, %9& !ontending that the said Resolution )iolated mo)ant>s right to preliminar# in)estigation. ?hile sub@e!t motion +as pending before the 2ffi!e of the Cit# Prose!utor, (udge (ose Aguirre +as transferred to the sala )a!ated b# the late (udge Ci!ero Auerubin and as a result, ran!h "6 of the Regional Trial Court in a!olod Cit# +as left )a!ant until (udge Anita Amora *e Castro, the respondent @udge herein, assumed as Presiding (udge of ran!h "6. Petitioner>s motion atta!4ing the August 29, 1991 Resolution aforementioned +as una!ted upon, for more than three .,/ months, b# the Cit# Prose!utor, so mu!h so that on (anuar# 1", 1992, petitioner filed +ith (udge Anita Amora de Castro a Motion for (reliminar& In)estigation, %10&pointing out that sin!e $llegal Re!ruitment is an offense !ogniBable b# the Regional Trial Court +here no !omplaint or information ma# be filed +ithout a preliminar# in)estigation ha)ing been first !ondu!ted (Sec *, Rule ##!, Re)ised Rules of +ourt), non: obser)an!e of su!h rule o)er his ob@e!tion +as )iolati)e of his right to due pro!ess. 2n (anuar# ,0, 1992, the respondent (udge found petitioner>s stan!e meritorious, and ordered the Cit# Prose!utor to !ondu!t the re5uisite preliminar# in)estigation. 2n the follo+ing da#, (anuar# ,1, 1992, the respondent @udge dire!ted %11& the issuan!e of alias +arrant for the immediate arrest of petitioner. $t is petitioner>s submission that the respondent @udge a!ted +ith gra)e abuse of dis!retion amounting to la!4 of @urisdi!tion in !ausing the issuan!e of an alias +arrant of arrest although the Cit# Prose!utor +as not #et through +ith the preliminar# in)estigation. Absent an appeal or an# plain, speed#, and ade5uate remed# in the ordinar# !ourse of la+ a)ailable to him under the premises, petitioner !ame to this !ourt )ia the present Petition for +ertiorari under =e!tion 1, Rule 68 of the Re)ised Rules of Court. $n her Comment thereon dated (une ,, 1992, the respondent (udge @ustified her !hallenged 2rderC ratio!inating, as follo+s1 To the mind of the respondent #udge, the fact that the City Prosecutor of Bacolod City

was directed by her to conduct a preliminary in(estigation of the case at bar did not legally inhibit her from issuing an alias warrant since an amended information had already been filed and admitted by the court, a warrant of arrest already issued with a capital offense/ These constitute compelling reasons for his immediate custody in the interest of justice and a speedy administration of the same/1[12]
The pi)ot of in5uir# in this !ase is the propriet# of issuan!e of sub@e!t alias +arrant of arrest. Resolution of this pi)otal issue hinges on t+o .2/ 5uestions : +hether the respondent @udge +as authoriBed b# la+ to issue the alias +arrant of arrest in 5uestion +ithout first terminating the preliminar# in)estigationC and +hether, under the attendant !ir!umstan!es,

respondent @udge !omplied +ith the !onstitutional pro)ision that no +arrant of arrest shall issue e<!ept upon probable !ause to be determined personall# b# the @udgeD %1,& The petition is de)oid of merit. =e!tion ,, Rule 112 of the 19-8 Rules on Criminal Pro!edure, pro)ides1 Procedure - Except as provided for in Section 7 hereof,[14] no complaint or information for an offense co ni!a"le "# the $e ional %rial &ourt shall "e filed 'ithout a preliminar# investi ation havin "een first conducted in the follo'in manner(

)a* %he complaint shall state the +no'n address of the respondent and "e accompanied "# affidavits of the complainant and his 'itnesses as 'ell as other supportin documents, in such num"er of copies as there are respondents, plus t'o )2* copies for the official file, %he said affidavits shall "e s'orn to "efore an# fiscal, state prosecutor or overnment official authori!ed to administer oath, or, in their a"sence or unavaila"ilit#, a notar# pu"lic, 'ho must certif# that he personall# examined the affiants and that he is satisfied that the# voluntaril# executed and understood their affidavits, )"* -ithin ten )1.* da#s after the filin of the complaint, the investi atin officer shall either dismiss the same if he finds no round to continue 'ith the in/uir#, or issue a su"poena to the respondent, attachin thereto a cop# of the complaint, affidavits and other supportin documents, -ithin ten )1.* da#s from receipt thereof, the respondent shall su"mit counter-affidavit and other supportin documents, 0e shall have the ri ht to examine all other evidence su"mitted "# the complainant, )c* Such counter-affidavits and other supportin evidence su"mitted "# the respondent shall also "e s'orn to and certified as prescri"ed in para raph )a* hereof and copies thereof shall "e furnished "# him to the complainant, )d* 1f the respondent cannot "e su"poenaed, or if su"poenaed, does not su"mit counteraffidavits 'ithin the ten )1.* da# period, the investi atin officer shall "ase his resolution on the evidence presented "# the complainant, )e* 1f the investi atin officer "elieves that there are matters to "e clarified, he ma# set a hearin to propound clarificator# /uestions to the parties or their 'itnesses, durin 'hich the parties shall "e afforded an opportunit# to "e present "ut 'ithout the ri ht to examine or cross-examine, 1f the parties so desire, the# ma# su"mit /uestions to the investi atin officer 'hich the latter ma# propound to the parties or 'itnesses concerned, )f* %hereafter, the investi ation shall "e deemed concluded, and the investi atin officer shall resolve the case 'ithin ten )1.* da#s therefrom, 2pon the evidence thus adduced, the investi atin officer shall determine 'hether or not there is sufficient round to hold the respondent for trial,3
Ender the afore!ited la+ in point, and as su!!in!tl# rationaliBed b# the then (usti!e, no+ Chief (usti!e Andres R. Nar)asa, in the germane !ase of ,ad-i Ibrahim Sola& (angandaman,

et al. )s. ima/oro T. +asar , as 3uni!ipal Cir!uit Trial (udge of Poonaba#abao, et al., 0: 919-2, April 1", 19--, 189 =CRA 899, the pro!edure pres!ribed for the !ondu!t of preliminar# in)estigation !onsists of t+o .2/ phases or stages. The first phase or stage of the in)estigation !onsists of an e0 /arte in5uir# of the suffi!ien!# of the !omplaint and the affida)its and other do!uments offered in support thereof, and ends +ith the determination b# the @udge either1 (#) that there is no ground to !ontinue +ith the in5uir#, in +hi!h !ase he dismisses the !omplaint and transmits the order of dismissal, together +ith the re!ords of the !ase, to the Pro)in!ial Fis!al (now (ro)incial (rosecutor); or (!) that the !omplaint and the supporting do!uments sho+ suffi!ient !ause to !ontinue +ith the in5uir#, +hi!h finding ushers in the se!ond phase. The second /hase or stage is designed to afford the respondent noti!e of the Complaint, a!!ess to !omplainant>s e)iden!e and an opportunit# to submit !ounter:affida)its and supporting do!uments. $n su!h a s!enario, the (udge ma# !ondu!t a hearing and propound to the parties and their +itnesses 5uestions on matters that, in his )ie+, should be !larified. The se!ond phase !on!ludes +ith the (udge rendering his resolution, either for dismissal of the !omplaint or finding a /rima facie !ase, and holding the respondent for trial +hi!h shall be transmitted, together +ith the pertinent re!ords, to the pro)in!ial prose!utor for appropriate a!tion. $t is thus de!isi)el# !lear that the rule does not re1uire that /reliminar& in)estigation be first com/leted before a warrant of arrest ma& issue . ?hat the rule simpl# pro)ides is that no !omplaint or information for an offense !ogniBable b# the Regional Trial Court ma# be filed +ithout !ompleting the preliminar# in)estigation. ut no+here is it mandated that preliminar# in)estigation must be !ompleted before a +arrant of arrest ma# issue. %18& =o also, there is nothing in Rule 112 +hi!h suggests that on!e a motion for preliminar# in)estigation is granted, an e<isting alias +arrant of arrest be !onsidered automati!all# lifted or re!alled. All things studiedl# !onsidered, +e are of the inelu!table !on!lusion, and so hold, that respondent @udge erred not in issuing the 5uestioned alias +arrant of arrest against petitioner, +ithout +aiting for the result of the preliminar# in)estigation. $ndeed, it is a truism firml# an!hored on @urispruden!e that 6a +arrant !an be issued if the @udge is satisfied after an e<amination in +riting and under oath of the !omplainant and the +itnesses, in the form of sear!hing 5uestions and ans+ers, that a probable !ause e<ists and that there is a ne!essit# of pla!ing the respondent under immediate !ustod# in order not to frustrate the ends of @usti!e.G%16& Probable Cause is defined as 6su!h reasons, supported b# fa!ts and !ir!umstan!es, as +ill +arrant a !autious man in the belief that his a!tion, and the means ta4en in prose!uting it, are legall# @ust and proper.G %19& =pe!ifi!all#, probable !ause to +arrant arrest re5uires 6su!h fa!ts and !ir!umstan!es +hi!h +ould lead a reasonabl# dis!reet and prudent man to belie)e that an offense has been !ommitted b# the person sought to be arrested.G %1-& Furthermore, it bears stressing that in the determination of a probable !ause, the a)erage man +eighs fa!ts and !ir!umstan!es +ithout resorting to the !alibrations of te!hni!al rules of e)iden!e of +hi!h

his (the a)erage man) 4no+ledge is nil. ?hat is ne!essar# is not proof be#ond reasonable doubt but @ust a probable !ause. 6')iden!e re5uired to establish guilt is not ne!essar#.G%19& $n 2ebb )s. e 3eon,%20& it +as elu!idatedC that1 @@@ A finding of probable cause needs only to rest on e(idence showing that more

li8ely than not a crime has been committed and was committed by the suspects/ Probable cause need not be based on clear and con(incing e(idence of guilt, neither on e(idence establishing guilt beyond reasonable doubt and definitely, not on e(idence establishing absolute certainty of guilt/ As well put in Brinegar (/ >nited "tates, while probable cause demands more than Abare suspicion,1 it re:uires Aless than e(idence which would justify /// con(iction/ A finding of probable cause merely binds o(er the suspect to stand trial/ .t is not a pronouncement of guilt/1
3indful of the afore!ited legal pre!epts, and after a !areful stud# and e<amination of the re!ords on hand, +e find a suffi!ient ground to engender a +ell:grounded belief, and our minds !an rest eas# that the !rime !harged +as !ommitted, and the petitioner herein, Alelio . Pen, is probabl# guilt# thereof. Consider (#) that there is an e<isting but une<e!uted +arrant of arrest against the petitionerC (!) that petitioner Alelio . Pen, at the time of issuan!e of sub@e!t alias +arrant of arrest, +as a fugiti)e from @usti!eC (*) that an amended information had alread# been filed and admitted b# the !ourtC and (4) that petitioner Alelio . Pen is !harged +ith a !apital offense. $n light of the foregoing, the respondent @udge did not gra)el# abuse her dis!retion and did not err in finding a probable !ause to +arrant the arrest of a!!used:petitioner. And under the aforesaid fa!ts and !ir!umstan!es, +e agree +ith the respondent @udge on the ne!essit# of pla!ing petitioner Alelio ernaldeB Pen under immediate !ustod# in order not to frustrate the ends of @usti!e. )H R *OR , the petition is *$=3$=='* for +ant of meritC and the !hallenged 2rder and alias +arrant of arrest issued in Criminal Case No. 10126, for the arrest of petitioner Alelio ernaldeB Pen, are upheld. No pronoun!ement as to !osts. SO ORD R D. %ar)asa, +.5., Romero, and 6a/unan, 55., !on!ur.

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p. 20, Rollo.

[2] 4ther'ise +no'n as 1lle al $ecruitment/ [5] p, 26, *ollo, [4] 1n effect, the &it# Prosecutor ar ues that the 1lle al $ecruitment char e should "e cate ori!ed as Illegal Recruitment in Large Scale as the offense 'as committed a ainst more than three persons7 and that such offense is punisha"le "# life imprisonment and a fine of 4ne 0undred %housand Pesos )P1..,...,..* under 8rticle 59 )8* of the :a"or &ode, as amended, as it involves economic sabotage/

[;] see( p, 52, *ollo, [<] see( p, 71, *ollo, [7] see( p, 75, *ollo, [6] p, 7<, *ollo, [9] p, 79, *ollo, [1.] p, 115, *ollo, [11] p, 12., *ollo, [12] $espondent =ud e>s &omments, p, 141, *ollo, [15] Section 2, 8rticle 111, 1967 Philippine &onstitution,
Section 7 - &hen the accused lawfully arrested without warrant - -hen a person is la'full# arrested 'ithout a 'arrant for an offense co ni!a"le "# the $e ional %rial &ourt the complaint or information ma# "e filed "# the offended part#, peace officer or fiscal 'ithout a preliminar# investi ation havin "een first conducted, on the "asis of the affidavit of the offended part# or arrestin officer or person,
[14]

7o+e)er, before the filing of su!h !omplaint or information, the person arrested ma# as4 for a preliminar# in)estigation b# a proper offi!er in a!!ordan!e +ith this Rule, but he must sign a +ai)er of the pro)isions of Arti!le 128 of the Re)ised Penal Code, as amended, +ith the assistan!e of a la+#er and in !ase of non: a)ailabilit# of a la+#er, a responsible person of his !hoi!e. Not+ithstanding su!h +ai)er, he ma# appl# for bail as pro)ided in the !orresponding rule and the in)estigation must be terminated +ithin fifteen .18/ da#s from its in!eption. $f the !ase has been filed in !ourt +ithout preliminar# in)estigation ha)ing been first !ondu!ted, the a!!used ma# +ithin fi)e .8/ da#s from the time he learns of the filing of the information, as4 for a preliminar# in)estigation +ith the same right to addu!e e)iden!e in his fa)or in the manner pres!ribed in this Rule.

[1;] 1n fact, Section < )"* of the same $ule explicitl# authori!es the municipal trial court to order the respondent>s arrest even "efore the openin the second phase of the investi ation if said court is satisfied that a pro"a"le cause exists and there is necessit# to place the respondent under immediate custod# in order not to frustrate the ends of ?ustice, [1<] $o"erts, =r, (s, &ourt of 8ppeals, 2;4 S&$8 5.7, [17] =oa/uin @, Aernas, %he &onstitution of the $epu"lic of the Philippines( 8 &ommentar#,3 Bol, 1,, 1967 ed,, p, 6< citin People (s, S# =uco, <4 Phil, <74 [1957], [16] -e"" (s, Ce :eon, 247 S&$8 <;5 [199;], [19] Aernas, .bid,, citin 0enr# (s, 2nited States, 5<2 2,S, 96, 1.2 [19;9], [2.] 247 S&$8 <;5 [199;],