G.R. No. 121234 August 23, 1995
Lejano and six (6)
HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES,
ZENON L. DE GUIA, JOVENCITO ZUÑO, 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
Parañaque, Branch 274, respondents, LAURO
VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES,
ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN,
and NATIONAL BUREAU OF INVESTIGATION, and
HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of
the Regional Trial Court of Parañaque, 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 Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES,
ZENON L. DE GUIA, JOVENCITO ZUÑO, 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
Parañaque, Branch 274, respondents.
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.
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. Zuño to conduct the preliminary investigation 3 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 Jennifer 6 in their home
at Number 80 W. Vinzons, St., BF Homes, Parañaque, Metro
Manila.
During the preliminary investigation, the NBI presented the
following: (1) the sworn statement dated May 22, 1995 of their
principal witness, Maria Jessica M. Alfaro who allegedly saw
the commission of the crime;7 (2) the sworn statements of two
(2) of the former housemaids of the Webb family in the
persons of Nerissa E. Rosales and Mila S.Gaviola;8 (3) the
sworn-statement of Carlos J. Cristobal who alleged that on
March 9, 1991 he was a passenger of United Airlines Flight No.
808 bound for New York and who expressed doubt on whether
petitioner Webb was his 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 Venture and Pamela Francisco. 13 To
further support his defense, he submitted documentary
evidence that he bought a bicycle and a 1986 Toyota car while
in the United States on said dates14 and that he was issued by
the State of California Driver's License No. A8818707 on June
14, 1991.15 Petitioner Webb likewise submitted the letter
dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the
US Embassy, citing certain records tending to confirm, among
others, his arrival at San Francisco, California on March 9, 1991
as a passenger in United Airlines Flight No. 808.
The other respondents — Hospicio "Pyke" Fernandez, Michael
Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel
Rodriguez and Gerardo Biong — submitted sworn statements,
responses, and a motion to dismiss denying their complicity in
the rape-killing of the Vizcondes.16 Only the respondents Joey
Filart and Artemio "Dong" Ventura failed to file their counter-
affidavits though they were served with subpoena in their last
known address.17 In his sworn statement,
petitioner Gatchalian alleged that from 11 o'clock in the
evening of June 29, 1991 until 3 o'clock in the morning of the
following day, he was at the residence of his friends, Carlos and
Andrew Syyap, at New Alabang Village, Muntinlupa watching
video tapes. He claimed that his co-petitioner Lejano was with
him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution
"finding probable cause to hold respondents for trial" and
recommending that an Information for rape with homicide be
filed against petitioners and their co-respondents,18 On the
same date, it filed the corresponding Information 19 against
petitioners and their co-accused with the Regional Trial Court
of Parañaque. The case was docketed as Criminal Case No. 95-
404 and raffled to Branch 258 presided by respondent judge
Zosimo V. Escano. It was, however, the respondent judge Raul
de Leon, pairing judge of Judge Escano, who issued the
warrants of arrest against the petitioners. On August 11, 1995,
Judge Escano voluntarily inhibited himself from the case to
avoid any suspicion about his impartiality considering his
employment with the NBI before his appointment to the
bench. The case was re-raffled to Branch 274, presided by
Judge Amelita Tolentino who issued new warrants of arrest
against the petitioners and their co-accused. On August 11,
1995, petitioner Webb voluntarily surrendered to the police
authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig.
Petitioners Gatchalian and Lejano likewise gave themselves up
to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent
Judges de Leon and Tolentino gravely abused their discretion
when they failed to conduct a preliminary examination before
issuing warrants of arrest against them: (2) the DOJ Panel
likewise gravely abused its discretion in holding that there is
probable cause to charge them with the crime of rape with
homicide; (3) the DOJ Panel denied them their constitutional
right to due process during their preliminary investigation; and
(4) the DOJ Panel unlawfully intruded into judicial prerogative
when it failed to charge Jessica Alfaro in the Information as an
accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of
probable cause. They insist that the May 22, 1995
sworn statement of Jessica Alfaro is inherently weak
and uncorroborated. They hammer on alleged
material inconsistencies between her April 28, 1995
and May 22, 1995 sworn statements. They assail her
credibility for her misdescription of petitioner Webb's
hair as semi-blonde. They also criticize the procedure
followed by the DOJ Panel when it did not examine
witnesses to clarify the alleged incredulities and
inconsistencies in the sworn statements of the
witnesses for the NBI.
We start with a restatement of the purpose of a
preliminary investigation. Section 1 of Rule 112
provides that a preliminary investigation should
determine " . . . whether there is a sufficient ground
to engender a well-grounded belief that a crime
cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty
thereof, and should be held for trial." Section 3 of the
same Rule outlines the procedure in conducting a
preliminary investigation, thus:
Sec. 3. Procedure. — Except as provided for
in Section 7 hereof, no complaint or
information for an offense cognizable by the
Regional Trial Court shall be filed without a
preliminary investigation having been first
conducted in the following manner:
(a) The complaint shall state the known
address of the respondent and be
accompanied by affidavits of the
complainant and his witnesses as well as
other supporting documents, in such
number of copies as there are respondents,
plus two (2) copies for the official file. The
said affidavits shall be sworn to before any
fiscal, state prosecutor or government
official authorized to administer oath, or, in
their absence or unavailability, a notary
public, who must certify that he personally
examined the affiants and that he is satisfied
that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the
complaint, the investigating officer shall
either dismiss the same if he finds no ground
to continue with the inquiry, or issue a
subpoena to the respondent, attaching
thereto a copy of the complaint, affidavits
and other supporting documents. Within ten
(10) days from receipt thereof, the
respondent shall submit counter-affidavits
and other supporting documents. He shall
have the right to examine all other evidence
submitted by the complainant.
(c) Such counter-affidavits and other
supporting evidence submitted by the
respondent shall also be sworn to and
certified as prescribed in paragraph (a)
hereof and copies thereof shall be furnished
by him to the complainant.
(d) If the respondent cannot be subpoenaed,
or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the
investigating officer shall base his resolution
on the evidence presented by the
complainant.
(e) If the investigating officer believes that
there are matters to be clarified, he may set
a hearing to propound clarificatory
questions to the parties or their witnesses,
during which the parties shall be afforded an
opportunity to be present but without the
right to examine or 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 . . ."
The need to find probable cause is dictated by the Bill of Rights
which protects "the right of the people to be secure in their
persons . . . against unreasonable searches and seizures of
whatever nature . . ."20 An arrest without a probable cause is
an unreasonable seizure of a person, and violates the privacy
of persons which ought not to be intruded by the
State.21 Probable cause to warrant arrest is not an opaque
concept in our jurisdiction. Continuing accretions of case law
reiterate that they are facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be
arrested.22 Other jurisdictions utilize the term man of
reasonable caution 23 or the term ordinarily prudent and
cautious man.24 The terms are legally synonymous and their
reference is not to a person with training in the law such as a
prosecutor or a judge but to the average man on the street.25 It
ought to be emphasized that in determining probable cause,
the average man weighs facts and circumstances without
resorting to the calibrations of our technical rules of evidence
of which his knowledge is nil. Rather, he relies on the calculus
of common sense of which all reasonable men have an
abundance.
Applying these basic norms, we are not prepared to
rule that the DOJ Panel gravely abused its discretion
when it found probable cause against the petitioners.
Petitioners belittle the truthfulness of Alfaro on two
(2) grounds: (a) she allegedly erroneously described
petitioner Webb's hair as semi-blond and (b) she
committed material inconsistencies in her two (2)
sworn statement, thus:26
xxx xxx xxx
To illustrate, the following are some
examples of inconsistencies in the two
sworn statements of Alfaro:
On whether Alfaro knew Carmela before the
incident in question
First Affidavit: She had
NOT met Carmela before
June 29, 1991.
Second Affidavit: "I met
her in a party sometime in
February, 1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not
see the three dead
persons on that night. She
just said "on the following
day I read in the
newspaper that there
were three persons who
were killed . . ."
Second Affidavit: "I
peeped through the first
door on the left. I saw two
bodies on top of the bed,
bloodied, and in the floor,
I saw Hubert on top of
Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not
see the act of rape.
Second Affidavit: She saw
Hubert Webb "with bare
buttocks, on top of
Carmela and pumping, her
mouth gagged and she
was moaning and I saw
tears on her eyes."
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
xxx xxx xxx
As regards the admissibility of Alfaro's
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-conspirator's participation in the
commission of the crime (see People vs.
Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine
that conspiracy need not be proved by direct
evidence of prior agreement to commit the
crime. Indeed, "only rarely would such a
prior agreement be demonstrable since, in
the nature of things, criminal undertakings
are only rarely documented by agreements
in writing. Thus, conspiracy may be inferred
from the conduct of the accused before,
during and after the commission of the
crime, showing that the several accused had
acted in concert or in unison with each
other, evincing a common purpose or
design." (Angelo vs. Court of Appeals, 210
SCRA 402 [1992], citations omitted; People
vs. Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely
because of the inconsistencies in her two
sworn statements. 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 latter's inquiry into the
whereabouts of Hubert Webb . . . and to
check on our U.S.-based witnesses."
In said memorandum, counsel for
respondent Webb calls for the application of
the maxim falsus in uno, falsus in
omnibus arising from the inconsistencies of
Alfaro's statements, among others. This is
untenable. As held in Angelo:
There is no rule of law
which prohibits a court
from crediting part of the
testimony of a witness as
worthy of belief and from
simultaneously rejecting
other parts which the
court may find incredible
or dubious. The
maxim falsus in uno, falsus
in omnibus is not a rule of
law, let alone a general
rule of law which is
universally applicable. It is
not a legal presumption
either. It is merely a
latinism describing the
conclusion reached by a
court in a particular case
after ascribing to the
evidence such weight or
lack of weight that the
court deemed proper.
In the case before us, complainant reasoned
out that Alfaro was then having reservations
when she first executed the first statement
and held back vital information due to her
natural reaction of mistrust. This being so,
the panel believes that the inconsistencies in
Alfaro's two sworn statements have been
sufficiently explained especially specially so
where there is no showing that the
inconsistencies were deliberately made to
distort the truth. Consequently, the
probative value of Alfaro's testimony
deserves full faith and credit. As it has been
often noted, ex parte statements are
generally incomplete because they are
usually executed when the affiant's state of
mind does not give her sufficient and fair
opportunity to comprehend the import of
her statement and to narrate in full the
incidents which transpired (People vs.
Sarellana, 233 SCRA 31 [1994]; Angelo vs.
Court of Appeals, supra). In the case at bar,
there is no dispute that a crime has been
committed and what is clear before us is that
the totality of the evidence submitted by the
complainant indicate a prima 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
xxx xxx xxx
According to Nerissa E. Rosales, a former
housemaid of the Webb family, on June 29,
1991, between 7:00 o'clock and 8:00 o'clock
in the evening, Hubert was at home inside
his room with two male visitors. She knew it
because she and her co-housemaid, Loany,
were instructed by Hubert to bring them
three glasses of juice. It was the last time she
saw Hubert and was later told by then
Congressman Webb that Hubert was in the
United States.
While Mila S. Gaviola, another former
housemaid of the Webb family and who
served as a laundry woman, claims, aside
from corroborating the statement of Nerissa
Rosales, that on June 30, 1991, she woke up
at around 4:00 in the morning and as what
she used to do, she entered the rooms of the
Webbs to get their clothes to be washed. As
a matter of fact, in that early morning, she
entered Hubert's room and saw Hubert, who
was only wearing his pants, already awake
and smoking while he was sitting on his bed.
She picked up Hubert's scattered clothes and
brought them together with the clothes of
the other members of the family to the
laundry area. After taking her breakfast, she
began washing the clothes of the Webbs. As
she was washing the clothes of Hubert
Webb, she noticed fresh bloodstains in his
shirt. After she finished the laundry, she
went to the servant's quarters. But feeling
uneasy, she decided to go up to the
stockroom near Hubert's room to see what
he was doing. In the said stockroom, there is
a small door going to Hubert's room and in
that door there is a small opening where she
used to see Hubert and his friends sniffing on
something. She observed Hubert was quite
irritated, uneasy, and walked to and from
inside his room.
On that day, she noticed Hubert left the
house at around 1:00 in the afternoon and
came back at around 4:00 in the same
afternoon and went inside his room using
the secret door of the house. It was the last
time that she saw Hubert until she left the
Webb family.
On the other hand, Carlos J. Cristobal alleged
that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino
International Airport as he was then
scheduled to take the United Airlines Flight
No. 808 at 2:00 in the afternoon for New
York. At the airport's lobby, he saw then
Congressman Freddie Webb with a male
companion. He greeted him and Webb
answered: "Mabuti naman, at ito, ihahatid
ko ang anak ko papuntang Florida." He knew
Freddie Webb because he often watched
him then in a television show "Chicks to
Chicks." He observed that the man whom
Freddie Webb referred to as his son, was of
the same height as Freddie. The son referred
to has fair complexion with no distinguishing
marks on his face. He (son of Webb) was
then wearing a striped white jacket. When
he and his children were already inside the
plane, he did not see Freddie anymore, but
he noticed his son was seated at the front
portion of the economy class. He never
noticed Freddie Webb's son upon their
arrival in San Francisco. He claims that, while
watching the television program "DONG
PUNO LIVE" lately, he saw the wife of
Freddie Webb with her lawyer being
interviewed, and when she described Hubert
as "moreno" and small built, with a height of
five feet and seven inches tall, and who was
the one who left for United States on March
9, 1991, he nurtured doubts because such
description does not fit the physical traits of
the son of Freddie, who left with him for
United States on the same flight and date.
Lolita Birrer, alleged that she know Gerardo
Biong because she had an affair with him for
almost three (3) years and in fact, she had a
child with him who is now four (4) years old.
Their relationship started in February, 1991
until she broke up with him in September
1993. She recalls that on June 29, 1991, at
around 6:00 p.m., Biong invited her to play
mahjong at the canteen of a certain Aling Glo
located at the back of the Parañaque
Municipal Hall.
At about 2:30, in the early morning of
January 30, 1991, the radio operator of the
Parañaque 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
Parañaque, arrived and said, "Oy Biong, may
tatlong patay sa BF, imbestigahan mo" to
which Biong answered, "Oo susunod na
ako." Biong went to the office of Capt. Don
Bartolome who offered to accompany him
and with whom she asked permission to go
with them. Before they proceeded to the
place where the killings happened, she asked
Biong if he knew the exact address and the
latter immediately responded, "Alam ko na
yon." She was surprised because Galvan
never told him the place of the incident.
As soon as they arrived at the Vizconde's
residence, Biong instructed the housemaids
to contact the victim's relatives, while the
security guard fetched the barangay
chairman and the president of the
Homeowners Association. When all these
persons were already in the house, Biong
started recording the wounds of the victim.
Inside the master's bedroom, she saw Biong
took a watch from the jewelry box. Because
she could not tolerate the foul odor, she and
Capt. Bartolome went out of the room and
proceeded to the dining area. On top of the
dining table, she saw the scattered contents
of a shoulder bag. Moments later, Biong
came out from the room and proceeded to
the front door to remove the chain lock;
asked the keys from the housemaid and it
was only then that the main door was
opened. Biong noticed a stone in front of the
broken glass of the door and requested Capt.
Bartolome to go inside the servant's
quarters as he doubted the housemaids'
claim that they heard nothing unusual. Using
the handle of his gun, Biong broke the
remaining glass of the door panel. Bartolome
then came out of the room and told Biong
that he can hear the sound of the glass being
broken. At the garage, Biong also noticed
same marks on the hood of the car.
On the following day, at around 12:00 noon,
Biong arrived in her house together with the
Vizconde housemaids. When Biong was
preparing to take a bath, she saw him
remove from his pocket the things she also
saw from Vizconde's residence, to wit:
calling cards, driver's license, ATM card, a
crossed check worth P80,000.00, earrings, a
ring, bracelet, necklace, and the watch he
took from the jewelry box inside the room of
the Vizcondes. These jewelry items were
later pawned by Biong for P20,000.00 at a
pawnshop in front of Chow-Chow restaurant
in Santos Avenue, Parañaque. The next day,
she saw Biong took from his locker at the
Parañaque 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 Parañaque Police Station,
she was surprised that Biong halted the
investigation when Gatchalian was profusely
sweating while being interrogated. After the
father of Gatchalian talked to Colonel
Pureza, the latter called up and instructed
Biong to bring Gatchalian to him (Colonel
Pureza) and that was the last thing she
remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence
against the exculpatory evidence of petitioners. It ruled: 30
xxx xxx xxx
The voluminous number of exhibits
submitted by respondent Webb to support
his defense of denial and alibi
notwithstanding, the panel, after a careful
and thorough evaluation of the records,
believes that they cannot outweigh the
evidence submitted by the complainant.
Alibi cannot prevail over the positive
identification made by a prosecution
witness. Verily, alibi deserves scant
consideration in the face of positive
identification especially so where the claim
of alibi is supported mainly by friends and
relatives (People vs. Apolonia, 235 SCRA 124
[1994]; People vs. Lucas, 181 SCRA 316 and
a long line of cases).
Similarly, denial is a self-serving negative
which cannot be given greater evidentiary
weight than the declaration of a credible
witness who testified on affirmative matters
(People vs. Carizo, 233 SCRA 687 [1994]).
Indeed, denial, like alibi, is weak and
becomes even more weaker when arrayed
against the positive identification by the
 witness for the prosecution (People vs.
Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi
was not corroborated by Lejano, whom he
claimed was with him watching video tapes
at the Syyap residence. Other than claiming
that he "was not and could not have been at
or near the area of the Vizconde residence at
the time of the alleged commission of the
crime," respondent Lejano proffered no
evidence to substantiate his claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks
to enhance the acceptability of his alibi in the
form of documents tending to show that he
was thousands of miles away when the
incident occurred. We have carefully
deliberated and argued on the evidence
submitted by respondent Webb in support
of his absence from the country since March
9, 1991 to October 26, 1992 and found the
same wanting to exonerate him of the
offense charged. The material dates in this
case are June 29 and 30, 1991. While
respondent Webb may have submitted
proof tending to show that he was issued a
California driver's license on June 14, 1991,
there is no showing that he could not have
been in the country on the dates above
mentioned. Neither do we find merit in the
allegation that respondent Webb personally
bought a bicycle on June 30, 1991 in
California in view of his positive
identification by Alfaro and the two (2)
househelps of the Webb family who testified
that he was here in the country on said
dates. Additionally, the issuance of receipt
evidencing the purchase of a bicycle in
California is no conclusive proof that the
name appearing thereon was the actual
buyer of the merchandise.
Given these conflicting pieces of evidence of the NBI
and the petitioners, we hold that the DOJ Panel did
not gravely abuse its discretion when it found
probable cause against the petitioners. A finding of
probable cause needs only to rest on evidence
showing that more likely than not a crime has been
committed and was committed by the suspects.
Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute
certainty of guilt. As well put in Brinegar v. United
States,31 while probable cause demands more than
"bare suspicion," it requires "less than evidence
which would justify . . . conviction." A finding of
probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence
needed to support a finding of probable cause, we
also hold that the DOJ Panel did not, gravely abuse its
discretion in refusing to call the NBI witnesses for
clarificatory questions. The decision to call witnesses
for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator
alone. If the evidence on hand already yields a
probable cause, the investigator need not hold a
clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be
determined in a summary manner. Preliminary
investigation is not a part of trial and it is only in a trial
where an accused can demand the full exercise of his
rights, such as the right to confront and cross-
examine his accusers to establish his innocence. In
the case at bar, the DOJ Panel correctly adjudged that
enough evidence had been adduced to establish
probable cause and clarificatory hearing was
unnecessary.
II
We now come to the charge of petitioners that
respondent Judge Raul de Leon and, later,
respondent Judge Amelita Tolentino issued warrants
of arrest against them without conducting the
required preliminary examination. Petitioners
support their stance by highlighting the following
facts: (1) the issuance of warrants of arrest in a matter
of few hours; (2) the failure of said judges to issue
orders of arrest; (3) the records submitted to the trial
court were incomplete and insufficient from which to
base a finding of probable cause; and (4) that even
Gerardo Biong who was included in the Information
as a mere accessory had a "NO BAIL"
recommendation by the DOJ Panel. Petitioners
postulate that it was impossible to conduct a
"searching examination of witnesses and evaluation
of the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with
individual liberty and is regulated by no less than the
fundamental law of the land. Section 2 of Article III of
the Constitution provides:
Sec. 2. The right of the people to be secure
in their persons, houses, papers, and effects
against unreasonable searches and seizures
of whatever nature and for any purpose shall
be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally
 by the judge after examination under oath or record their sworn statements together with
affirmation of the complainant and the any affidavits submitted.
witnesses he may produce and particularly
describing the place to be searched and the Sec. 5. Issuance and form of search warrant.
persons or things to be seized. — If the judge is thereupon satisfied of the
facts upon which the application is based, or
The aforequoted provision deals with the that there is probable cause to believe that
requirements of probable cause both with respect to they exist, he must issue the warrant, which
issuance of warrants of arrest or search warrants. The must be substantially in the form prescribed
similarities and differences of their requirements by these Rules.
ought to be educational. Some of them are pointed
out by Professors LaFave and Israel, thus:32 "It is We discussed the difference in the Procedure of
generally assumed that the same quantum of issuing warrants of arrest and search warrants
evidence is required whether one is concerned with in Soliven vs. Makasiar,33 thus:
probable cause to arrest or probable cause to search.
But each requires a showing of probabilities as to xxx xxx xxx
somewhat different facts and circumstances, and
thus one can exist without the other. In search cases,
The second issue, raised by Beltran, calls for
two conclusions must be supported by substantial
an interpretation of the constitutional
evidence: that the items sought are in fact seizable by
provision on the issuance of warrants of
virtue of being connected with criminal activity, and
arrest. The pertinent provision reads:
that the items will be found in the place to be
searched. It is not also necessary that a particular
Art. III, Sec. 2. The right of
person be implicated. By comparison, in arrest cases
the people to be secure in
there must be probable cause that a crime has been
their persons, houses,
committed and that the person to be arrested
papers and effects against
committed it, which of course can exist without any
unreasonable searches
showing that evidence of the crime will be found at
and seizures of whatever
premises under that person's control." Worthy to
nature and for any
note, our Rules of Court do not provide for a similar
purpose shall be
procedure to be followed in the issuance of warrants
inviolable, and no search
of arrest and search warrants. With respect to
warrant or warrant of
warrants of arrest, section 6 of Rule 112 simply
arrest shall issue except
provides that "upon filing of an information, the
upon probable cause to be
Regional Trial Court may issue a warrant for the arrest
determined personally by
of the accused." In contrast, the procedure to be
the judge after
followed in issuing search warrants is more defined.
examination under oath or
Thus, Sections 3, 4 and 5 of Rule 126 provide:
affirmation of the
complainant and the
xxx xxx xxx
witnesses he may
produce, and particularly
Sec. 3. Requisites for issuing search warrant. describing the place to be
— A search warrant shall not issue but upon searched and the persons
probable cause in connection with one or things to be seized.
specific offense to be determined personally
by the judge after examination under oath or
The addition of the word "personally" after
affirmation of the complainant and the
the word "determined" and the deletion of
witnesses he may produce, and particularly
the grant of authority by the 1973
describing the place to be searched and the
Constitution to issue warrants to "other
things to be seized.
responsible officers as may be authorized by
law," has apparently convinced petitioner
Sec. 4. Examination of complainant; record. Beltran that the Constitution now requires
— The judge must, before issuing the the judge to personally examine the
warrant, personally examine in the form of complainant and his witnesses in his
searching questions and answers, in writing determination of probable cause for the
and under oath the complainant and any issuance of warrants of arrest. This is not an
witnesses he may produce on facts accurate interpretation.
personally known to them and attach to the
 What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the
existence of probable cause. In satisfying
himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge
is not required to personally examine the
complainant and his witnesses. Following
established doctrine and procedure, he
shall: (1) personally evaluate the report and
the documents submitted by the fiscal
regarding the existence of probable cause
and, on the basis thereof, issue a warrant; or
(2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's
report and require the submission of
supporting affidavits of witnesses to aid him
in arriving at a conclusions as to the
existence of probable cause.
Sound policy dictates this procedure,
otherwise judges would be unduly laden
with the preliminary examination and
investigation of criminal complaints instead
of concentrating on hearing and deciding
cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and
our case 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. Diokno37 is misplaced. Our Allado ruling is
predicated on the utter failure of the evidence to
show the existence of probable cause. Not even
the corpus delicti of the crime was established by the
evidence of the prosecution in that case. Given the
clear insufficiency of the evidence on record, we
stressed the necessity for the trial judge to make a
further personal examination of the complainant and
his witnesses to reach a correct assessment of the
existence or non-existence of probable cause before
issuing warrants of arrest against the accused. The
case at bar, however, rests on a different factual
setting. As priorly discussed, the various types of
evidence extant in the records of the case provide
substantial basis for a finding of probable cause
against the petitioner. The corpus delicti of the crime
is a given fact. There is an eyewitness account of the
imputed crime given by Alfaro. The alibi defense of
petitioner Webb is also disputed by sworn statements
of their former maids. It was therefore unnecessary
for the respondent judges to take the further step of
examining ex parte the complainant and their
witnesses with searching questions.
III
Petitioners also complain about the denial of their
constitutional right to due process and violation of
their right to an impartial investigation. They decry
their alleged hasty and malicious prosecution by the
NBI and the DOJ Panel. They also assail the prejudicial
publicity that attended their preliminary
investigation.
We reject these contentions. The records will show
that the DOJ Panel did not conduct the preliminary
investigation with indecent haste. Petitioners were
given fair opportunity to prove lack of probable cause
against them. The fairness of this opportunity is well
stressed in the Consolidated Comment of the Solicitor
General, viz.:
Again, there is no merit in this contention.
Petitioners were afforded all the
opportunities to be heard. Petitioner Webb
actively participated in the preliminary
investigation by appearing in the initial
hearing held on June 30, 1995 and in the
second hearing on July 14, 1995; and by filing
a "Motion for Production and Examination of
Evidence and Documents" on June 27, 1995
(p. 4, Petition), a "Reply to the compliance
and Comment/Manifestation to the Motion
for Production and Examination of Evidence"
on July 5, 1995 (p. 6, Petition), a "Comment
and Manifestation" on July 7, 1995 (p. 6,
Petition), his "Counter-Affidavit" on July 14,
1995 (pp. 6-7, Petition) and a "Motion to
Resolve" on August 1, 1995. Numerous
letter-requests were also sent by the
petitioner Webb's counsel to the DOJ Panel
requesting the latter to furnish him a copy of
the reports prepared by the FBI concerning
the petitioner's whereabouts during the
material period (Annexes "L", "L-1" and "L-2"
of the Supplemental Petition dated August
14, 1995). In fact, not satisfied with the
decision of the DOJ Panel not to
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."
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 Parañaque on August
10, 1995. This notwithstanding the directive
of Section 3(f) Rule 112 of the Revised Rules
of Court that the investigating officer shall
resolve the case within ten (10) days from
the termination of the preliminary
investigation. The DOJ Panel precisely
allowed the parties to adduce more
evidence in their behalf and for the panel to
study the evidence submitted more fully.
This directly disputes the allegation of the
petitioners that the resolution was done
with indecent haste in violation of the rights
of the petitioners. During the period
of 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.:
Sec. 4. Non-Appealable Cases; Exceptions. —
No appeal may be taken from a resolution of
the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor
finding probable cause except upon showing
of manifest error or grave abuse of
discretion. Notwithstanding the showing of
manifest error or grave abuse of discretion,
no appeal shall be entertained where the
appellant had already been arraigned. If the
appellant is arraigned during the pendency
of the appeal, said appeal shall be
dismissed motu propio by the Secretary of
Justice.
An appeal/motion for reinvestigation from a
resolution finding probable cause, however,
shall not hold the filing of the information in
court.
Sec. 2. When to appeal. — The appeal must
be filed within a period of fifteen (15) days
from receipt of the questioned resolution by
the party or his counsel. The period shall be
interrupted only by the filing of a motion for
reconsideration within ten (10) days from
receipt of the resolution and shall continue
 to run from the time the resolution denying
the motion shall have been received by the
movant or his counsel. (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223
allows the filing of an Information in court after the
consummation of the preliminary investigation even
if the accused can still exercise the right to seek a
review of the prosecutor's recommendation with the
Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including
Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with
homicide. The 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:
xxx xxx xxx
Sec. 10. State Witness. — Any person who
has participated in the commission of a
crime and desires to a witness for the State,
can apply and, if qualified as determined in
this Act and by the Department, shall be
admitted into the Program whenever the
following circumstances are present:
(a) the offense in which his testimony will be
used is a grave felony as defined under the
R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his
testimony;
(c) there is no other direct evidence available
for the proper prosecution of the offense
committed;
(d) his testimony can be substantially
corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of
any crime involving moral turpitude.
An accused discharged from an information
or criminal complaint by the court in order
that he may be a State Witness pursuant to
Sections 9 and 10 of Rule 119 of the Revised
Rules of Court may upon his petition be
admitted to the Program if he complies with
the other requirements of this Act. Nothing
in this Act shall prevent the discharge of an
accused so that he can be used as a Witness
under Rule 119 of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section
12 of the said law mandates her non-inclusion in the
criminal Complaint or Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State
Witness into the Program. — The
certification of admission into the Program
by the Department shall be given full faith
and credit by the provincial or city
prosecutor who is required NOT TO INCLUDE
THE WITNESS IN THE CRIMINAL COMPLAINT
OR INFORMATION and if included therein, to
petition the court for his discharge in order
that he can be utilized as a State Witness.
The court shall order the discharge and
exclusion of the said accused from the
information.
Admission into the Program shall entitle
such State Witness to immunity from
criminal prosecution for the offense or
offenses in which his testimony will be given
or used and all the rights and benefits
provided under Section 8 hereof.
The validity of these provisions is challenged by
petitioner Webb. It is urged that they constitute ". . .
an intrusion into judicial prerogative for it is only the
court which has the power under the Rules on
Criminal Procedure to discharge an accused as a state
witness." The argument is based on Section 9, Rule
11938which gives the court the prerogative to
approve the discharge of an accused to be a state
witness. Petitioner's argument lacks appeal for it lies
on the faulty assumption that the decision whom to
prosecute is a judicial function, the sole prerogative
of courts and beyond executive and legislative
interference. In truth, the prosecution of crimes
appertains to the executive department of
government whose principal power and responsibility
is to see that our laws are faithfully executed. A
necessary component of this power to execute our
laws is the right to prosecute their violators. The right
to prosecute vests the prosecutor with a wide range
of discretion — the discretion of whether, what and
whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by
prosecutors. We thus hold that it is not
constitutionally impermissible for Congress to enact
R.A. No. 6981 vesting in the Department of Justice the
power to determine who can qualify as a witness in
the program and who shall be granted immunity from
prosecution.39Section 9 of Rule 119 does not support
the proposition that the power to choose who shall
be a state witness is an inherent judicial prerogative.
Under this provision, the court, is given the power to
discharge a state witness only because it has already
acquired jurisdiction over the crime and the accused.
The discharge of an accused is part of the exercise of
jurisdiction but is not a recognition of an inherent
judicial function. Moreover, the Rules of Court have
never been interpreted to be beyond change by
legislation designed to improve the administration of
our justice system. R.A. No. 6981 is one of the much
sought penal reform laws to help government in its
uphill fight against crime, one certain cause of which
is the reticence of witnesses to testify. The rationale
for the law is well put by the Department of
Justice, viz.: "Witnesses, for fear of reprisal and
economic dislocation, usually refuse to appear and
testify in the investigation/prosecution of criminal
complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for
insufficiency and/or lack of evidence. For a more
effective administration of criminal justice, there was
a necessity to pass a law protecting witnesses and
granting them certain rights and benefits to ensure
their appearance in investigative
bodies/courts."40 Petitioner Webb's challenge to the
validity of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating
their right to discovery proceedings during their
preliminary investigation by suppressing the April 28,
1995 original copy of the sworn statement of Alfaro
and the FBI Report. The argument is novel in this
jurisdiction and as it urges an expansive reading of the
rights of persons under preliminary investigation it
deserves serious consideration. To start with, our
Rules on Criminal Procedure do not expressly provide
for discovery proceedings during the preliminary
investigation stage of a criminal
proceeding.41 Sections 10 and 11 of Rule 117 do
provide an accused the right to move for a bill of
particulars and for production or inspection of
material evidence in possession of the
prosecution.42 But these provisions apply after the
filing of the Complaint or Information in court and the
rights are accorded to the accused to assist them to
make an intelligent plea at arraignment and to
prepare for trial.43
This failure to provide discovery procedure during
preliminary investigation does not, however, negate
its use by a person under investigation when
indispensable to protect his constitutional right to
life, liberty and property. Preliminary investigation is
not too early a stage to guard against any significant
erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a
preliminary investigation is to determine the
probability that the suspect committed a crime. We
hold that the finding of a probable cause by itself
subjects the suspect's life, liberty and property to real
risk of loss or diminution. In the case at bar, the risk
to the liberty of petitioners cannot be understated for
they are charged with the crime of rape with
homicide, a 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 ". . . state the
known address of the respondent and be
accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents . . ."
In laying down this rule, the Court is not without
enlightened precedents from other jurisdictions. In
the 1963 watershed case of Brady v. Maryland 46 the
United States Supreme Court held that "suppression
of evidence favorable to an accused upon request
violates due process where the evidence is material
to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution." Its progeny is the
1935 case of Mooney v. Holohan 47 which laid down
the proposition that a prosecutor's intentional use of
perjured testimony to procure conviction violates due
process. Thus, evolved jurisprudence firming up the
prosecutor's duty to disclose to the defense
exculpatory evidence in its possession.48 The
rationale is well put by Justice Brennan in Brady49 —
"society wins not only when the guilty are convicted
but when criminal trials are fair." Indeed, prosecutors
should not treat litigation like a game of poker where
surprises can be sprung and where gain by guile is not
punished.
But given the right of petitioners to compel the NBI to
disclose exculpatory evidence in their favor, we are
not prepared to rule that the initial non-production of
the original sworn statement of Alfaro dated April 28,
1995 could have resulted in the reasonable likelihood
that the DOJ Panel would not have found probable
cause. To be sure, the NBI, on July 4, 1995, upon
request of petitioners, submitted a photocopy of
Alfaro's April 28, 1995 sworn statement. It explained
it cannot produce the original as it had been lost.
Fortunately, petitioners, on July 28, 1995, were able
to obtain a copy of the original from Atty. Arturo
Mercader in the course of the proceedings in Civil
Case No. 951099.50 As petitioners admit, the DOJ
Panel accepted the original of Alfaro's April 28, 1995
sworn statement as a part of their
evidence.51 Petitioners thus had the fair chance to
explain to the DOJ Panel then still conducting their
preliminary investigation the exculpatory aspects of
this sworn statement. Unfortunately for petitioners,
the DOJ Panel still found probable cause to charge
them despite the alleged material discrepancies
between the first and second sworn statements of
Alfaro. For reasons we have expounded, this finding
of probable cause cannot be struck down as done
with grave abuse of discretion.52On the other hand,
the FBI Report while corroborative of the alibi of
petitioner Webb cannot by itself reverse the probable
cause finding of the DOJ Panel in light of the totality
of evidence presented by the NBI.
Finally, we come to the argument of petitioner that
the DOJ Panel lost its impartiality due to the
prejudicial publicity waged in the press and broadcast
media by the NBI.
Again, petitioners raise the effect of prejudicial
publicity on their right to due process while
undergoing preliminary investigation. We find no
procedural impediment to its early invocation
considering the substantial risk to their liberty while
undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the
most problematic areas in constitutional law where
the conflicting demands of freedom of speech and of
the press, the public's right to information, and an
accused's right to a fair and impartial trial collide and
compete for prioritization. The process of pinpointing
where the balance should be struck has divided men
of learning as the balance keeps moving either on the
side of liberty or on the side of order as the tumult of
the time and the welfare of the people dictate. The
dance of balance is a difficult act to follow.
In democratic settings, media coverage of trials of
sensational cases cannot be avoided and oftentimes,
its excessiveness has been aggravated by kinetic
developments in the telecommunications industry.
For sure, few cases can match the high volume and
high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues
unabated even today. Commentators still bombard
the public with views not too many of which are sober
and sublime. Indeed, even the principal actors in the
case — the NBI, the respondents, their lawyers and
their sympathizers — have participated in this media
blitz. The possibility of media abuses and their threat
to a fair trial notwithstanding, criminal trials cannot
be completely closed to the press and the public. In
the seminal case of Richmond Newspapers,
Inc. v. Virginia,53 it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution
of the criminal trial in Anglo-American
justice demonstrates conclusively that at the
time this Nation's organic laws were
adopted, criminal trials both here and in
England had long been presumptively open,
thus giving assurance that the proceedings
were conducted fairly to all concerned and
discouraging perjury, the misconduct of
participants, or decisions based on secret
bias or partiality. In addition, the significant
community therapeutic value of public trials
was recognized: when a shocking crime
occurs, a community reaction of outrage and
public protest often follows, and thereafter
the open processes of justice serve an
important prophylactic purpose, providing
an outlet for community concern, hostility,
and emotion. To work effectively, it is
important that society's criminal process
"satisfy the appearance of justice," Offutt v.
United States, 348 US 11, 14, 99 L Ed 11, 75
S Ct 11, which can best be provided by
allowing people to observe such process.
From this unbroken, uncontradicted history,
supported by reasons as valid today as in
centuries past, it must be concluded that a
presumption of openness inheres in the very
nature of a criminal trial under this Nation's
system of justice, Cf., e.g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct
1038.
(b) The freedoms of speech, press, and
assembly, expressly guaranteed by the First
Amendment, share a common core purpose
of assuring freedom of communication on
 matters relating to the functioning of
government. In guaranteeing freedoms such
as those of speech and press, the First
Amendment can be read as protecting the
right of everyone to attend trials so as to give
meaning to those explicit guarantees; the
First Amendment right to receive
information and ideas means, in the context
of trials, that the guarantees of speech and
press, standing alone, prohibit government
from summarily closing courtroom doors
which had long been open to the public at
the time the First Amendment was adopted.
Moreover, the right of assembly is also
relevant, having been regarded not only as
an independent right but also as a catalyst to
augment the free exercise of the other First
Amendment rights with which it was
deliberately linked by
the draftsmen. A trial courtroom is a public
place where the people generally — and
representatives of the media — have a right
to be present, and where their presence
historically has been thought to enhance the
integrity and quality of what takes place.
(c) Even though the Constitution contains no
provision which by its terms guarantees to
the public the right to attend criminal trials,
various fundamental rights, not expressly
guaranteed, have been recognized as
indispensable to the enjoyment of
enumerated rights. The right to attend
criminal trials is implicit in the guarantees of
the First Amendment; without the freedom
to attend such trials, which people have
exercised for centuries, important aspects of
freedom of speech and of the press could be
eviscerated.
Be that as it may, we recognize that pervasive and
prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair
trial. Thus, in Martelino, et al. vs. Alejandro, et
al.,54 we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the
judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case
at bar, we find nothing in the records that will prove
that the tone and content, of the publicity that
attended the investigation of petitioners fatally
infected the fairness and impartiality of the DOJ
Panel. Petitioners cannot just rely on the subliminal
effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights
of publicity. Indeed, their 26-page Resolution carries
no indubitable indicia of bias for it does not appear
that they considered any extra-record evidence
except evidence properly adduced by the parties. The
length of time the investigation was conducted
despite its summary nature and the generosity with
which they accommodated the discovery motions of
petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on
the ground of bias resulting from their bombardment
of prejudicial publicity.
It all remains to state that the Vizconde case will move
to a more critical stage as petitioners will now have to
undergo trial on the merits. We stress that probable
cause is not synonymous with guilt and while the light
of publicity may be a good disinfectant of unfairness,
too much of its heat can bring to flame an accused's
right to fair trial. Without imposing on the trial judge
the difficult task of supervising every specie of speech
relating to the case at bar, it behooves her to be
reminded of the duty of a trial judge in high profile
criminal cases to control publicity prejudicial to the
fair administration of justice.55 The Court reminds
judges that our ability to dispense impartial justice is
an issue in every trial and in every criminal
prosecution, the judiciary always stands as a silent
accused. More than convicting the guilty and
acquitting the innocent, the business of the judiciary
is to assure fulfillment of the promise that justice shall
be done and is done — and that is the only way for
the judiciary to get an acquittal from the bar of public
opinion.
IN VIEW WHEREOF, the petitions are dismissed for
lack of showing of grave abuse of discretion on the
part of the respondents. Costs against petitioners.
SO ORDERED.
G.R. No. 146707 November 29, 2006
ERNESTO DUMLAO, JR., VIOLETA BALBA, MARIA MOLINA,
DELIA CASTILLO, VENTURADA ARELLANO, ROMEO CABILDO
and HEIRS OF ROMULO LANGCAY, Petitioners,
vs.
HON. RODOLFO PONFERRADA, Judge of the Regional Trial
Court, Branch 41, Manila, SECRETARY OF THE DEPARTMENT
OF JUSTICE, ATTY. MANUEL MOLINA, ATTY. FRANKLIN V.
TAMARGO, GODOFREDO FLORES, ROY FLORES, QUIRINO
CABEZA, JESUS TIME, GILBERT PACPACO and eight (8) JOHN
DOES,Respondents.
DECISION
This petition for certiorari under Rule 65 of the Rules of Court
seeks to annul the order of Judge Rodolfo Ponferrada of the
Regional Trial Court (RTC) of Manila, Branch 41, dated
September 18, 2000, approving the withdrawal of the
Informations charging private respondents with multiple
murder in Criminal Case Nos. 00-184244-50.
The precursors of this petition are as follows:
On the night of May 8, 1995, just after the local elections,
seven of petitioners’ relatives1 were murdered in Brgy. Pattao,
Buguey, Cagayan. Two witnesses, Ernesto Mendoza and Mario
Gascon, executed affidavits stating that they were riding in a
jeepney with the victims when armed men in fatigue uniforms
flagged them down. On instruction of ex-Army Major Romulo
Langcay (one of the passengers), the jeepney did not stop. The
armed men, however, fired at the jeepney, forcing it to stop.
The witnesses later identified three of these men to be private
respondents Roy Flores, Godofredo Flores and Quirino Cabeza.
In the same affidavits, Mendoza and Gascon stated that when
they saw Roy Flores and his men approaching the vehicle, they
jumped out and hid behind a guava tree. From there, they
noticed private respondent Roy Flores returning to his house
about 41 meters away. He talked to private respondents Atty.
Franklin Tamargo and Atty. Manuel Molina. Mendoza and
Gascon allegedly overheard Tamargo and Molina giving orders
to Roy Flores to kill all the passengers of the jeepney.
Thereafter, Roy Flores went back to the jeepney and ordered
all the passengers to lie flat on the ground. After a few seconds,
Flores and his companions fired at them.
Private respondents denied the accusations. They contended
that they were inside Roy Flores’ house when the killings
occurred. Although they heard the gunshots, they claimed no
knowledge of what precipitated the incident. According to
private respondents, Mendoza and Gascon were known loyal
supporters of Mayor Licerio Antiporda Jr.2 and they merely
fabricated the whole story to pin down liability on Tamargo
who was then Antiporda’s closest political rival. They added
that it was impossible for Mendoza and Gascon to have heard
any order from Tamargo and Molina 41 meters away from the
guava tree where they were hiding.
Apolinario and Leonardo Time corroborated private
respondents’ statements, saying that they were inside Roy
Flores’ house during the shooting incident.
After the preliminary investigation, State Prosecutor
Emmanuel Velasco issued a resolution stating that there was
probable cause to hold private respondents liable for multiple
murder.3 He then recommended the filing of the necessary
Informations in court and private respondents were
subsequently charged for multiple murder in the RTC of Aparri,
Cagayan, Branch 6.4
In the interim, private respondents filed a petition for review
with the Department of Justice (DOJ). Then acting DOJ
Secretary Ricardo G. Nepomuceno, Jr. issued an order
reversing the findings of State Prosecutor Velasco and
directing the withdrawal of the criminal charges against
private respondents. The order read:
In this automatic review, it is incumbent upon us to evaluate
the conflicting declarations of witnesses presented by the
complainant, namely, Ernesto Mendoza and Mario Gascon, on
one hand, and Apolinario and Leonardo Time, on the other
hand, in order to determine which are to be accorded faith and
credence… Indeed, the Rules provide that in determining
where the superior weight of evidence on the issues involved
lies, the court may consider the witnesses[‘] means and
opportunit[ies] of knowing the facts to which they are
testifying, the probability or improbability of their testimony,
and their interest and want of interest... In keeping therewith,
and as borne out by the evidence thus adduced, we find and
so hold that the sworn statements of Mario Gascon and
Ernesto Mendoza do not engender a well-founded belief that
the respondents are probably guilty of the crime charged.
xxx xxx xxx
Wherefore, [State Prosecutor Velasco’s] resolution is hereby
reversed and set aside and [he is] directed to cause the
withdrawal of the informations for multiple murder against
respondents Atty. Franklin V. Tamargo, et al…5
Later, the new DOJ Secretary, Serafin Cuevas (Nepomuceno’s
successor), also ordered the withdrawal of said Informations.
Hence, a motion to withdraw them were filed in the RTC-
Manila, Branch 41 where the cases were transferred and re-
docketed as Criminal Case Nos. 00-184244-50.
Public respondent Judge Rodolfo Ponferrada, presiding judge
of the trial court, granted the motion and dismissed the cases
filed against private respondents. The order read:
…[A]fter Its own assessment and evaluation of the evidence of
the prosecution, the Court is inclined to grant the motion as
[I]t finds…the sworn statements of Mario Gascon and Ernesto
Mendoza… to be incredible and tainted with bias and
prejudice.
Parenthetically, it may be stated that the authority or power
to prosecute is lodged with the Secretary of Justice, his
prosecutors and assistants and undeniably[,] he has absolute
control and supervision over them in the sense that he can
reverse, alter or modify their actions and that no complaint or
information in cases cognizable by the Regional Trial Court as
in these cases shall be filed…without the resolution or decision
of which lies with the Secretary of Justice.
xxx xxx xxx
In fine, the Court believes and so holds that the evidence of
the prosecution, as assailed by the prosecution itself, does not
constitute probable cause against herein accused.
WHEREFORE, the motion is granted and the subject
Informations are considered/ordered withdrawn and/or the
cases dismissed.(italics supplied) 6
In their bid to reverse Judge Ponferrada’s order, petitioners
essentially insist in this petition for certiorari that the Secretary
of Justice could no longer review the resolution of the public
prosecutor after the cases had been filed in court.
In support of their position, petitioners cite the case of Crespo
v. Mogul.7 According to them, Crespo enunciated that once a
complaint or information has been filed in court, any
disposition of the case or dismissal, conviction or acquittal of
the accused rests on the sound discretion of the court. The
Secretary of Justice should thus by then no longer entertain
any petition for review or appeal assailing the action of the
public prosecutor.
We find no merit in the petition.
Petitioners seek to annul the order of Judge Ponferrada
approving the withdrawal of the criminal charges against
private respondents and/or the dismissal of the cases for want
of probable cause to hold them for trial. It is, however,
noteworthy that nowhere in their petition do they impugn the
validity of said order. Instead, the thrust of their arguments is
directed against the Justice Secretary’s power to review the
findings of the public prosecutor and his directive to withdraw
the Informations already filed in court.
Under RA 5180,8 in connection with Rule 112, Section 4 of the
Rules of Court,9 and as further implemented by Department
Circular No. 70 (otherwise known as the "2000 National
Prosecution Service Rule on Appeal"),10 the Justice Secretary is
vested with the power to review resolutions of the provincial,
city prosecutor or chief state prosecutor. He has the power to
re-evaluate the position taken by his subordinates in a case.
Corollary to this power, he may also direct the public
prosecutor to dismiss or cause the dismissal of the complaint
or information.11
Contrary to the theory of petitioners, the filing of a complaint
or information in court does not prevent the Justice Secretary
from exercising his review power. Neither can such complaint
or information deter him from ordering the withdrawal of the
case. As a matter of fact, in Crespo, we declared that the public
prosecutor (as the Justice Secretary’s subordinate) may still
opt to withdraw the Information either upon instruction of the
Justice Secretary or for purposes of reinvestigation.
Furthermore, Crespo merely laid down the rule that, while the
Secretary of Justice has the power to alter or modify the
resolution of his subordinate and thereafter direct the
withdrawal of a case, he cannot, however, impose his will on
the court. Thus, the rule is –
[O]nce 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 [on] the sound discretion of the
Court. Although the fiscal retains the direction and control of
the prosecution of the criminal cases even while the case is
already in Court[,] he cannot impose his opinion on the trial
court. The determination of the case is within [the court’s]
exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the sound
discretion of the Court [that] 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.
Petitioners likewise claim that public respondent Judge
Ponferrada committed grave abuse of discretion when, in
blind obeisance to the Justice Secretary’s order, he granted the
state prosecutor’s motion to withdraw the charges against
private respondents. The claim is belied by the records.
The records without doubt reveal that before the motion was
granted, Judge Ponferrada required petitioners and private
respondents to file their respective memoranda or comments.
He made his own assessment and evaluation of the evidence
on record.12 Thus, it is not correct to say that Judge Ponferrada
had absolutely nothing before him or that he blindly adopted
the position of the Justice Secretary.
In the absence of any showing that Judge Ponferrada exercised
his discretion in a whimsical and capricious manner, this
petition must fail.
WHEREFORE, the petition is hereby DISMISSED.
No costs.
SO ORDERED.
G.R. No. 166888 January 31, 2007
FIRST WOMEN’S CREDIT CORPORATION and SHIG
KATAYAMA, Petitioners,
vs.
HON. ROMMEL O. BAYBAY, in his capacity as the ACTING
PRESIDING JUDGE OF BRANCH 65, METROPOLITAN TRIAL
COURT, MAKATI CITY [SIC]*, RAMON P. JACINTO, JAIME C.
COLAYCO, ANTONIO P. TAYAO and GLICERIO
PEREZ, Respondents.
DECISION
Assailed via Petition for Review on Certiorari are the
September 28, 2004 Decision1 and January 25, 2005 Order2 of
the Regional Trial Court (RTC) of Makati, Branch 59 affirming
the July 22, 2002 Order3 of the Metropolitan Trial Court
(MeTC) of Makati, Branch 65 granting the "Motion to
Withdraw Informations and to Dismiss the [Criminal] Cases"
filed against respondents Ramon P. Jacinto (Jacinto), Jaime C.
Colayco (Colayco), Antonio P. Tayao (Tayao) and Glicerio Perez
(Perez) for falsification of private document and grave
coercion.
First Women’s Credit Corp. (the corporation), represented by
stockholder and director Shig Katayama (Katayama), filed on
November 12, 1997 a petition before the Securities and
Exchange Commission (SEC) against the corporation’s officers
Jacinto, Colayco, Concepcion T. Sangil (Sangil) and Asuncion
Cruz (Cruz), for alleged mismanagement of the corporation.
The case was docketed as SEC No. 11-97-5816.4
The SEC, in SEC Case No. 11-97-5816, created an Interim
Management Committee (IMC) for the corporation by Order
of November 17, 1999. The Order was upheld by the SEC en
banc on July 4, 2000.
The IMC thereupon issued directives to the corporation’s
president Antonio Tayao (Tayao) and corporate secretary and
treasurer Glicerio Perez (Perez) toward the preservation of
assets and records of the corporation.5
Allegedly in conspiracy with Jacinto and Colayco, Tayao and
Perez defied the implementation of the SEC November 17,
1999 Order6 when IMC attempted to enter the main office of
the corporation in Makati on December 3, 1999, December 29,
1999 and January 28, 2000.7
On April 6, 2000, Tayao filed a request with the Bureau of
Immigration and Deportation (BID) to include Katayama in its
watch list.
The IMC, on April 14, 2000, later preventively suspended Tayao
and Perez. Despite their preventive suspension, however, the
two, allegedly in conspiracy with Jacinto and Colayco, still
issued various directives/memoranda to the employees of the
corporation to disobey the IMC.
On May 9, 2000, the IMC dismissed Tayao and Perez.8
In two follow-up letters to the BID both dated August 1, 2000,
Tayao represented himself as president of the corporation. 9
Hence, the filing before the Makati City Prosecutor’s Office
(CPO) on December 27, 2000 of criminal complaints against
Jacinto, Colayco, Tayao and Perez by the corporation,
represented by Katayama, for violation of the following
offenses defined and punishable under the Revised Penal
Code:
a) Article 151 which punishes resistance and
disobedience to person in authority or the agents of
such person (20 counts);
b) Article 154 which punishes the unlawful use of
means of publication and unlawful utterances (2
counts);
c) Article 172(2) which punishes falsification by
private individuals and use of falsified documents (2
counts);
d) Article 315, paragraph 2(a) Estafa by falsely
pretending to be officers of FWCC (23 counts).10
Jacinto, Colayco, Tayao and Perez (hereafter respondents)
denied the charges.11 They claimed that the SEC Order creating
the IMC was pending appeal at the Court of Appeals; 12 that
there was no danger that the assets of the corporation would
be dissipated or lost at the time the alleged criminal acts were
committed; and that Katayama had no authority to institute
the criminal charges in behalf of the corporation as he was
merely a minority stockholder, aside from his lack of personal
knowledge of the circumstances giving rise to the filing of the
charges.13
The Investigating Prosecutor, by Resolution of August 28,
2001, found probable cause to hale respondents into court for
falsification of private documents under Article 172(2), and
three informations for grave coercion against private
respondent Tayao and three unnamed security guards. The
decretal text of the resolution reads:
Wherefore, finding sufficient evidence to charge respondents
Ramon P. Jacinto, Jaime P. Colayco, Antonio P. Tayao and
Glicerio Perez for the offense of Falsification of Private
Document under Art. 172(2) on two (2) counts and, only as
against respondent Tayao with three (3) other unnamed
security guards, three (3) counts of Grave Coercion under Art.
286, both of the Revised Penal Code, but insufficient evidence
for the offenses defined under Articles 151, 154 and 315, 2(a)
of the Revised Penal Code as against all four (4) respondents,
the undersigned respectfully recommends that the charges for
the latter three (3) offenses as against all respondents be
dismissed for insufficiency of evidence as these are dismissed
upon approval but the attached informations be approved for
filing in court.
x x x x14
In finding probable cause, the Investigating Prosecutor
declared:
On the other hand, there is sufficient evidence for the charge
of Falsification of Private Document as defined in Art. 172 (2)
against respondents as the two (2) letters addressed to the
Bureau of Immigration and Deportation both dated 1 August
2000 but the first, received at the BID on 10 August 2000 and
the second, on 21 August 2000, clearly showed that
respondents colluded and connived with each other in making
it appear in the said letters that respondent Tayao was the
President of complainant FWCC when as early as 9 May 2000,
he has already been dismissed as officer of the said
corporation by the Management Committee. It has also been
shown that as a result of these two (2) letters, complainant
Katayama suffered not only pecuniary and material damage
but also damage to his honor as well.
Finally, sufficient evidence has shown that respondent Tayao
and three (3) other armed security guards whose identities can
be established later, without authority of law, with the use of
physical force and threats, prevented the Management
committee from implementing their legal mandate on 3
December 1999, on 29 December 1999 and 28 January
2000, by refusing them entry into the FWCC’s main office at 51
Polaris St., Makati City. They may therefore be held liable for
Grave Coercion under Art. 286 of the Revised Penal Code. No
evidence, however, has been presented showing the other
respondents’ culpable participation in these three (3)
aforementioned instances.15(Underscoring supplied)
The City Prosecutor approved the Investigating Prosecutor’s
resolution.
Respondents appealed the CPO resolution to the Department
of Justice (DOJ) via Petition for Review.
The DOJ, by Resolution16 dated April 29, 2002, reversed the
Resolution of the CPO which was directed to move for the
withdrawal of the information for falsification of private
document against private respondents and the informations
for grave coercion against respondent Tayao and the three
John Does.
The corporation and Katayama (hereafter petitioners) moved
to reconsider the DOJ April 29, 2002 Resolution but it was
denied by Resolution of September 24, 2002.17
Petitioners thereupon assailed the DOJ Resolutions before the
Court of Appeals via petition for certiorari.18
In the meantime, respondents filed with Branch 65, MeTC
Makati where the criminal cases were raffled, a "Motion to
Withdraw Informations and to Dismiss the Cases"19 to which
motion petitioners filed their Opposition.20 By Order21of July
22, 2002, Acting Presiding Judge Rommel Baybay found
respondents’ motion to be well-taken and accordingly
dismissed the criminal cases.
Petitioners’ Motion for Reconsideration of the July 22, 2002
Order of the trial court was denied by Order 22 of December 3,
2002.
Petitioners assailed the trial court’s orders via certiorari with
the RTC of Makati which Branch 59 thereof dismissed by
Decision23 of September 28, 2004 for lack of merit.
In denying their petition for certiorari, the RTC held that the
grounds relied upon by petitioners were mere errors of
judgment, not necessarily of jurisdiction, and there being
other legal remedies to question the assailed orders, e.g., the
filing of a Notice of Appeal, petitioners’ petition for certiorari
would not lie.24
Hence, the instant petition for review on certiorari filed
directly with this Court, petitioners contending that
IN ISSUING THE ASSAILED RTC DECISION AND ASSAILED RTC
ORDER, THE REGIONAL TRIAL COURT DECIDED NOT IN
ACCORDANCE WITH LAW AND APPLICABLE JURISPRUDENCE,
IN THAT:
A. PURSUANT TO PEREZ V. HAGONOY RURAL
BANK AND DEE V. COURT OF APPEALS,PETITIONERS’
ONLY REMEDY FROM THE ASSAILED MTC ORDERS
WAS A PETITION FOR CERTIORARI AND NOT AN
ORDINARY APPEAL.
B. CONTRARY TO ROBERTS V. COURT OF APPEALS,
THE METROPOLITAN TRIAL COURT FAILED TO
DISCHARGE ITS JUDICIAL MANDATE TO MAKE AN
INDEPENDENT EVALUATION AND ASSESSMENT OF
THE EVIDENCE ON RECORD.
C. AN INDEPENDENT EVALUATION AND ASSESSMENT
OF THE EVIDENCE ON RECORD ESTABLISHES THE
EXISTENCE OF PROBABLE CAUSE THAT RESPONDENTS
COMMITTED FALSIFICATION OF PRIVATE
DOCUMENTS AND GRAVE COERCION.25 (Italics in the
original)
It is settled that the determination of whether probable cause
exists to warrant the prosecution in court of an accused should
be consigned and entrusted to the Department of Justice, as
reviewer of the findings of public prosecutors.26 The court’s
duty in an appropriate case is confined to a determination of
whether the assailed executive or judicial determination of
probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion amounting to want of
jurisdiction. This is consistent with the general rule that
criminal prosecutions may not be restrained or stayed by
injunction, preliminary or final,27 albeit in extreme cases,
exceptional circumstances have been recognized.28 The rule is
also consistent with this Court’s policy of non-interference in
the conduct of preliminary investigations, and of leaving to the
investigating prosecutor sufficient latitude of discretion in the
exercise of determination of what constitutes sufficient
evidence as will establish probable cause for the filing of an
information against a supposed offender.29
While prosecutors are given sufficient latitude of discretion in
the determination of probable cause, their findings are subject
to review by the Secretary of Justice.30
Once a complaint or information is filed in court, however, any
disposition of the case, e.g., its dismissal or the conviction or
acquittal of the accused rests on the sound discretion of the
Court.31
In thus resolving a motion to dismiss the case or to withdraw
the Information filed by the public prosecutor on his own
initiative or pursuant to the directive of the Secretary of
Justice, either for insufficiency of evidence or for lack of
probable cause, the trial court should not rely solely and
merely on the findings of the public prosecutor or the
Secretary of Justice that no crime was committed or that the
evidence in the possession of the public prosecutor is
insufficient to support a judgment of conviction of the
accused.32 It is its bounden duty to independently assess the
merits of the motion. For while the ruling of the Secretary of
Justice is persuasive, it is not binding on courts.33
Petitioners’ assertion that the trial court failed to comply with
its mandate to make an independent assessment and
evaluation of the evidence before granting the motion does
not persuade.
The trial court did stress in its December 3, 2002
Order34 denying the motion for reconsideration that it was
bound to make, as it did, a preliminary finding independently
of those of the Secretary of Justice.
The trial judge need not state with specificity or make a lengthy
exposition of the factual and legal foundation relied upon by
him to arrive at his decision. It suffices that upon his own
personal evaluation of the evidence and the law involved in the
case, he is convinced that there is no probable cause to indict
the accused.
The trial judge’s grant of the motion after his independent
finding that there was indeed lack of probable cause to indict
respondents should not then be brushed aside absent any
evidence showing that he overlooked relevant and material
facts which, if considered, would glaringly point to the
presence of probable cause.
WHEREFORE, the petition is DENIED.
SO ORDERED.

As to what mode of review petitioners may avail of after a

court grants an accused’s motion to withdraw information
and/or to dismiss the case, Section 1 of Rule 122 of the 2000
Revised Rules of Criminal Procedure instructs: "Any party may
appeal from a judgment or final order, unless the accused will
be placed in double jeopardy."

In availing of the remedy of certiorari before the RTC,

petitioners claim that they had no plain, adequate and speedy
remedy to question the MeTC’s grant of the motion.

The records of the cases show, however, that the motion was
granted by the MeTC before respondents were arraigned.
Thus, the prohibition against appeal in case a criminal case is
dismissed as the accused would be placed in double jeopardy
does not apply.

Petitioners not having availed of the proper remedy to assail

the dismissal of the cases, the dismissal had become final and
executory. On this score alone, the present petition must fail.

Technicality aside, the petition just the same fails.

[G.R. NO. 154128 : February 8, 2007]
DR. AMANDA T. CRUZ, Petitioner, v. WILFREDO R.
CRUZ, Respondent.
DECISION
For our resolution is the instant Petition for Review
on Certiorari assailing the Decision 1 of the Court of Appeals
promulgated on January 30, 2002 in CA-G.R. SP No. 57275.
The parties in the instant case are relatives. Wilfredo R. Cruz,
respondent, is a nephew by affinity of Dr. Amanda T. Cruz,
petitioner.
On June 5, 1996, respondent filed with the Office of the City
Prosecutor, Quezon City a complaint for violation of Batas
Pambansa (B.P.) Blg. 22 against petitioner, docketed as I.S. No.
96-10640. Respondent alleged that petitioner issued to him an
undated check in the sum of P100,000.00. On December 29,
1995, he placed this date on the check and deposited the
same, but it was dishonored by the drawee bank due to
"account closed." On January 5, 1996, he sent the notice of
dishonor to petitioner. Without his knowledge, petitioner, on
January 16, 1996, deposited P100,000.00 in his savings
account.
In her Counter-Affidavit with Motion to Dismiss, petitioner
declared that in 1986, she issued to respondent BPI Check No.
349866 as a guarantee for the loan of spouses Arturo and
Malou Ventura obtained from him. Later, they informed her
that they had paid the loan. However, she forgot to ask for the
return of the check. In 1987, she closed her account and
opened a new one with the drawee bank. For ten (10) years,
she forgot having issued the check. She claimed that
respondent filed the complaint against her because her
husband, Atty. Francisco Galman Cruz, instituted criminal and
civil complaints against Carlos Cruz. Jr., respondent's brother,
involving a parcel of land.
On January 16, 1996, or only after eleven (11) days from
January 5, 1996 when she learned that her check was
dishonored, she deposited P100,000.00 in the account of
respondent at the Westmont Bank, Sta. Mesa Branch.
On August 7, 1996, the Assistant City Prosecutor of Quezon
City recommended the dismissal of respondent's complaint,
thus:
Therefore, when complainant executed his affidavit in filing
the case for B.P. 22 against respondent, payment for the check
has already been satisfied. Therefore, under the
circumstances, there is no offense to be charged.
The above recommendation was approved by the City
Prosecutor.
Thereafter, respondent filed with the Department of Justice
(DOJ) a Petition for Review contending that petitioner is still
criminally liable although she had paid the amount of the
check in full.
In a Resolution dated September 14, 1996, Chief State
Prosecutor Jovencito R. Zuño dismissed respondent's petition,
thus:
We find no sufficient basis to cause the indictment of the
respondent. There is no violation of Batas Pambansa Bilang 22
in view of the full payment made by the respondent, a fact
which the complainant expressly admitted. The payment of
the check removes the same from the punitive provision of
Batas Pambansa Bilang 22.
Respondent filed a motion for reconsideration but it was
denied by former DOJ Secretary Serafin R. Cuevas in a
Resolution dated January 20, 2000.
Respondent then filed with the Court of Appeals a Petition for
Review under Rule 43 of the 1997 Rules of Civil Procedure, as
amended.
In its Decision of January 30, 2002, the Court of Appeals
granted respondent's petition and directed the Secretary of
Justice to file the proper information against petitioner.
Petitioner filed a motion for reconsideration but in its
Resolution 2 dated June 28, 2002, the Court of Appeals denied
the same.
Hence, this recourse.
The issue for our resolution is whether the Court of Appeals
erred in directing the Secretary of Justice to file an information
for violation of B.P. Blg. 22 against petitioner.
The petition is meritorious.
First, there is no dispute that when respondent filed with the
Office of the City Prosecutor of Quezon City his complaint
against petitioner, a preliminary investigation was conducted.
Section 1, Rule 112 of the 1985 Rules of Criminal Procedure, as
amended, defines preliminary investigation as "an inquiry or
proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof and
should be held for trial."
Under Section 4 of the same Rule, the investigating prosecutor
is vested with the duty of (a) preparing a resolution holding the
respondent for trial and filing the corresponding information,
or (b) dismissing the case should he find that no probable
cause exists against respondent.
The investigating Assistant City Prosecutor found no probable Resolution of the Secretary of Justice dated January 20, 2000
cause to charge petitioner with violation of B.P. Blg. 22. Hence, is AFFIRMED.
she recommended the dismissal of the case. The City
Prosecutor, the Chief State Prosecutor and the Secretary of SO ORDERED.
Justice sustained the recommendation. They all found that
when respondent filed his complaint with the Office of the
Quezon City Prosecutor, he knew that petitioner had paid the
amount of the check. In fact, in his pleading, he admitted such
payment. Thus, the prosecutors were one in concluding that
petitioner did not commit the offense charged.

The preliminary investigation seeks to free a respondent from

the inconvenience, expense, ignominy, and stress of a formal
trial after the reasonable probability of his guilt or innocence
has been passed upon by a competent officer designated by
law for that purpose.3 As mentioned, the prosecutors and also
the Secretary of Justice found no probable cause to warrant
the filing against petitioner of an information for violation of
B.P. 22. There is no indication that their finding of lack of
probable cause was reached without any basis in fact and in
law.

Second, in paragraph 7 of respondent's complaint, 4 he alleged

that petitioner failed to pay the amount of the check.
However, in paragraph 7 (d) of his reply, 5 he admitted that she
already remitted the amount of P100,000.00 on January 16,
1996. Respondent filed the complaint almost six (6)
months after petitioner had paid the amount of the check in
question.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

In Griffith v. Court of Appeals, 6 we ruled that where the

creditor had collected more than a sufficient amount to cover
the value of the checks, charging the debtor with a criminal
offense under the Bouncing Checks Law, two years after the
collection, is no longer tenable nor justified by law or equitable
consideration.

While indeed the gravamen of violation of B.P. Blg. 22 is the

act of issuing worthless checks, nonetheless, courts should not
apply the law strictly or harshly. Its spirit and purpose must
be considered.

In Lozano v. Martinez, 7 we held that the Bouncing Checks Law

is aimed at putting a stop to or curbing the practice of issuing
worthless checks or those that end up being dishonored for
payment because of the injury it causes to the public interests.
In Sia v. People, 8 we explained that the law is intended to
safeguard the interests of the banking system and the
legitimate checking account users.

Considering that petitioner had paid the amount of the check

even before respondent filed his complaint, we believe and so
hold that no injury was caused to the public interests or the
banking system, or specifically to herein respondent.

WHEREFORE, we GRANT the petition. The Decision of the

Court of Appeals in CA-G.R. SP No. 57275 is REVERSED. The
[G.R. NO. 168617 : February 19, 2007]
BERNADETTE L. ADASA, Petitioner, v. CECILLE S.
ABALOS, Respondent.
DECISION
This Petition for Review under Rule 45 of the Rules of Court,
filed by petitioner Bernadette L. Adasa, seeks to nullify and set
aside the 21 July 2004 Decision1 and 10 June 2005
Resolution2 of the Court of Appeals in CA-G.R. SP No. 76396
which nullified the Resolutions of the Department of Justice
(DOJ). The Resolutions of the DOJ reversed and set aside the
Resolution of the Office of the City Prosecutor of Iligan City,
which found on reinvestigation probable cause against
petitioner, and directed the Office of the City Prosecutor of
Iligan City to withdraw the information for Estafa against
petitioner.
The instant case emanated from the two complaints-affidavits
filed by respondent Cecille S. Abalos on 18 January 2001 before
the Office of the City Prosecutor of Iligan City, against
petitioner for Estafa.
Respondent alleged in the complaints-affidavits that
petitioner, through deceit, received and encashed two checks
issued in the name of respondent without respondent's
knowledge and consent and that despite repeated demands
by the latter, petitioner failed and refused to pay the proceeds
of the checks.
On 23 March 2001, petitioner filed a counter-affidavit
admitting that she received and encashed the two checks
issued in favor of respondent.
In her Supplemental Affidavit filed on 29 March 2001,
petitioner, however, recanted and alleged instead that it was
a certain Bebie Correa who received the two checks which are
the subject matter of the complaints and encashed the same;
and that said Bebie Correa left the country after
misappropriating the proceeds of the checks.
On 25 April 2001, a resolution was issued by the Office of the
City Prosecutor of Iligan City finding probable cause against
petitioner and ordering the filing of two separate Informations
for Estafa Thru Falsification of Commercial Document by a
Private Individual, under Article 315 in relation to Articles 171
and 172 of the Revised Penal Code, as amended.
Consequently, two separate criminal cases were filed against
petitioner docketed as Criminal Cases No. 8781 and No. 8782,
raffled to Branches 4 and 5, Regional Trial Court of Iligan City,
respectively.
This instant petition pertains only to Criminal Case No. 8782.
On 8 June 2001, upon motion of the petitioner, the trial court
in Criminal Case No. 8782 issued an order directing the Office
of the City Prosecutor of Iligan City to conduct a
reinvestigation.
After conducting the reinvestigation, the Office of the City
Prosecutor of Iligan City issued a resolution dated 30 August
2001, affirming the finding of probable cause against
petitioner.
Meanwhile, during her arraignment on 1 October 2001 in
Criminal Case No. 8782, petitioner entered an unconditional
plea of not guilty.3
Dissatisfied with the finding of the Office of the City Prosecutor
of Iligan City, petitioner filed a Petition for Review before the
DOJ on 15 October 2001.
In a Resolution dated 11 July 2002, the DOJ reversed and set
aside the 30 August 2001 resolution of the Office of the City
Prosecutor of Iligan City and directed the said office to
withdraw the Information for Estafa against petitioner.
The said DOJ resolution prompted the Office of the City
Prosecutor of Iligan City to file a "Motion to Withdraw
Information" on 25 July 2002.
On 26 July 2002, respondent filed a motion for reconsideration
of said resolution of the DOJ arguing that the DOJ should have
dismissed outright the Petition for Review since Section 7 of
DOJ Circular No. 70 mandates that when an accused has
already been arraigned and the aggrieved party files a Petition
for Review before the DOJ, the Secretary of Justice cannot, and
should not take cognizance of the petition, or even give due
course thereto, but instead deny it outright. Respondent
claimed Section 12 thereof mentions arraignment as one of
the grounds for the dismissal of the Petition for Review before
the DOJ.
In a resolution dated 30 January 2003, the DOJ denied the
Motion for Reconsideration opining that under Section 12, in
relation to Section 7, of DOJ Circular No. 70, the Secretary of
Justice is not precluded from entertaining any appeal taken to
him even where the accused has already been arraigned in
court. This is due to the permissive language "may" utilized in
Section 12 whereby the Secretary has the discretion to
entertain an appealed resolution notwithstanding the fact that
the accused has been arraigned.
Meanwhile, on 27 February 2003, the trial court issued an
order granting petitioner's "Motion to Withdraw Information"
and dismissing Criminal Case No. 8782. No action was taken by
respondent or any party of the case from the said order of
dismissal.
Aggrieved by the resolution of the DOJ, respondent filed a
Petition for Certiorari before the Court of Appeals.
Respondent raised the following issues before the appellate
court:
1. Whether or not the Department of Justice gravely abused its
discretion in giving due course to petitioner's Petition for
Review despite its having been filed after the latter had already
been arraigned;
2. Whether or not there is probable cause that the crime of
estafa has been committed and that petitioner is probably
guilty thereof;
3. Whether or not the petition before the Court of Appeals has
been rendered moot and academic by the order of the
Regional Trial Court dismissing Criminal Case No. 8782.
The Court of Appeals in a Decision dated 21 July 2004 granted
respondent's petition and reversed the Resolutions of the DOJ
dated 11 July 2002 and 30 January 2003.
In resolving the first issue, the Court of Appeals, relying heavily
on Section 7 of DOJ Circular No. 70 which states "[i]f an
information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the
accused had already been arraigned," ruled that since
petitioner was arraigned before she filed the Petition for
Review with the DOJ, it was imperative for the DOJ to dismiss
such petition. It added that when petitioner pleaded to the
charge, she was deemed to have waived her right to
reinvestigation and right to question any irregularity that
surrounds it.
Anent the second issue, the Court of Appeals declared that the
existence of probable cause or the lack of it, cannot be dealt
with by it since factual issues are not proper subjects of a
Petition for Certiorari.
In disposing of the last issue, the Court of Appeals held that the
order of the trial court dismissing the subject criminal case
pursuant to the assailed resolutions of the DOJ did not render
the petition moot and academic. It said that since the trial
court's order relied solely on the resolutions of the DOJ, said
order is void as it violated the rule which enjoins the trial court
to assess the evidence presented before it in a motion to
dismiss and not to rely solely on the prosecutor's averment
that the Secretary of Justice had recommended the dismissal
of the case.
Dissatisfied by the Court of Appeals' ruling, petitioner filed a
Motion for Reconsideration setting forth the following
grounds:
1. that the over-all language of Sections 7 and 12 of
Department Circular No. 70 is permissive and directory such
that the Secretary of Justice may entertain an appeal despite
the fact that the accused had been arraigned;
2. that the contemporaneous construction by the Secretary of
Justice should be given great weight and respect;
3. that Section 7 of the Circular applies only to resolutions
rendered pursuant to a preliminary investigation, not on a
reinvestigation;
4. that the trial court's order of dismissal of the criminal case
has rendered the instant petition moot and academic;
5. that her arraignment was null and void it being conducted
despite her protestations; and
6. that despite her being arraigned, the supposed waiver of her
right to preliminary investigation has been nullified or recalled
by virtue of the trial court's order of reinvestigation.4
The Court of Appeals stood firm by its decision. This time,
however, it tried to construe Section 7 side by side with Section
12 of DOJ Circular No. 70 and attempted to reconcile these two
provisions. According to the appellate court, the phrase "shall
not" in paragraph two, first sentence of Section 7 of subject
circular, to wit:
If an information has been filed in court pursuant to the
appealed resolution, the petition shall not be given due course
if the accused had already been arraigned. x x x. (Emphasis
supplied.)
employed in the circular denotes a positive prohibition.
Applying the principle in statutory construction - that when a
statute or provision contains words of positive prohibition,
such as "shall not," "cannot," or "ought not" or which is
couched in negative terms importing that the act shall not be
done otherwise than designated, that statute or provision is
mandatory, thus rendering the provision mandatory - it opined
that the subject provision simply means that the Secretary of
Justice has no other course of action but to deny or dismiss a
petition before him when arraignment of an accused had
already taken place prior to the filing of the Petition for Review
.
On the other hand, reading Section 12 of the same circular
which reads:
The Secretary may reverse, affirm or modify the appealed
resolution. He may, motu proprio or upon motion, dismiss the
Petition for Review on any of the following grounds:
x x x
(e) That the accused had already been arraigned when the
appeal was taken; x x x.
the Court of Appeals opined that the permissive word "may"
in Section 12 would seem to imply that the Secretary of Justice
has discretion to entertain an appeal notwithstanding the fact
that the accused has been arraigned. This provision should not
be treated separately, but should be read in relation to Section
7. The two provisions, taken together, simply meant that when
an accused was already arraigned when the aggrieved party
files a Petition for Review, the Secretary of Justice cannot, and
should not take cognizance of the petition, or even give due
course thereto, but instead dismiss or deny it outright. The
appellate court added that the word "may" in Section 12
should be read as "shall" or "must" since such construction is
absolutely necessary to give effect to the apparent intention
of the rule as gathered from the context.
As to the contemporaneous construction of the Secretary of
Justice, the Court of Appeals stated that the same should not
be given weight since it was erroneous.
Anent petitioner's argument that Section 7 of the questioned
circular applies only to original resolutions that brought about
the filing of the corresponding informations in court, but not
to resolutions rendered pursuant to a motion for
reinvestigation, the appellate court simply brushed aside such
contention as having no basis in the circular questioned.
It also rejected petitioner's protestation that her arraignment
was forced upon her since she failed to present any evidence
to substantiate the same.
It is petitioner's contention that despite her being arraigned,
the supposed waiver of her right to preliminary investigation
has been nullified by virtue of the trial court's order or
reinvestigation. On this score, the Court of Appeals rebuffed
such argument stating that there was no "supposed waiver of
preliminary investigation" to speak of for the reason that
petitioner had actually undergone preliminary investigation.
Petitioner remained unconvinced with the explanations of the
Court of Appeals.
Hence, the instant petition.
Again, petitioner contends that the DOJ can give due course to
an appeal or Petition for Review despite its having been filed
after the accused had already been arraigned. It asserts that
the fact of arraignment of an accused before the filing of an
appeal or Petition for Review before the DOJ "is not at all
relevant" as the DOJ can still take cognizance of the appeal or
Petition for Review before it. In support of this contention,
petitioner set her sights on the ruling of this Court in Crespo v.
Mogul,5 to wit:
The rule therefore in this jurisdiction is 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
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.
(Emphasis supplied.)
To bolster her position, petitioner cites Roberts v. Court of
Appeals,6 which stated:
There is nothing in Crespo v. Mogul which bars the DOJ from
taking cognizance of an appeal, by way of a Petition for Review,
by an accused in a criminal case from an unfavorable ruling of
the investigating prosecutor. It merely advised the DOJ to, "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. x x x.
(Emphasis supplied.)
Petitioner likewise invokes Marcelo v. Court of Appeals7 where
this Court declared:
Nothing in the said ruling forecloses the power or authority of
the Secretary of Justice to review resolutions of his
subordinates in criminal cases. The Secretary of Justice is only
enjoined to refrain as far as practicable from entertaining a
Petition for Review or appeal from the action of the prosecutor
once a complaint or information is filed in court. In any case,
the grant of a motion to dismiss, which the prosecution may
file after the Secretary of Justice reverses an appealed
resolution, is subject to the discretion of the court.
The Court is unconvinced.
A cursory reading of Crespo v. Mogul reveals that the ruling
therein does not concern the issue of an appeal or Petition for
Review before the DOJ after arraignment. Verily, the
pronouncement therein has to do with the filing of a motion
to dismiss and the court's discretion to deny or grant the same.
As correctly pointed out by respondent, the emphasized
portion in the Crespo ruling is a parcel of the entire paragraph
which relates to the duty and jurisdiction of the trial court to
determine for itself whether or not to dismiss a case before it,
and which states that such duty comes into play regardless of
whether such motion is filed before or after arraignment and
upon whose instructions. The allusion to the Secretary of
Justice as reviewing the records of investigation and giving
instructions for the filing of a motion to dismiss in the cited
ruling does not take into consideration of whether the appeal
or petition before the Secretary of Justice was filed after
arraignment. Significantly, in the Crespo case, the accused had
not yet been arraigned when the appeal or Petition for Review
was filed before the DOJ. Undoubtedly, petitioner's reliance on
the said case is misplaced.
Also unavailing is petitioner's invocation of the cases of (b) That the procedure or any of the requirements herein
Roberts v. Court of Appeals and Marcelo v. Court of Appeals. provided has not been complied with;
As in Crespo v. Mogul, neither Roberts v. Court of Appeals nor
Marcelo v. Court of Appeals took into account of whether the (c) That there is no showing of any reversible error;
appeal or petition before the Secretary of Justice was filed
after arraignment. Just like in the Crespo case, the accused in (d) That the appealed resolution is interlocutory in nature,
both Roberts v. Court of Appeals and Marcelo v. Court of except when it suspends the proceedings based on the alleged
Appeals had not yet been arraigned when the appeal or existence of a prejudicial question;
Petition for Review was filed before the DOJ.
(e) That the accused had already been arraigned when the
Moreover, petitioner asserts that the Court of Appeals' appeal was taken;
interpretation of the provisions of DOJ Circular No. 70 violated
three basic rules in statutory construction. First, the rule that
(f) That the offense has already prescribed; and
the provision that appears last in the order of position in the
rule or regulation must prevail. Second, the rule that the
(g) That other legal or factual grounds exist to warrant a
contemporaneous construction of a statute or regulation by
dismissal. (Emphases supplied.)
the officers who enforce it should be given weight. Third,
petitioner lifted a portion from Agpalo's Statutory
Construction8 where the word "shall" had been construed as a It is noteworthy that the principle cited by petitioner reveals
permissive, and not a mandatory language. that, to find application, the same presupposes that "one part
of the statute cannot be reconciled or harmonized with
another part without nullifying one in favor of the other." In
The all too-familiar rule in statutory construction, in this case,
the instant case, however, Section 7 is neither contradictory
an administrative rule9 of procedure, is that when a statute or
nor irreconcilable with Section 12. As can be seen above,
rule is clear and unambiguous, interpretation need not be
Section 7 pertains to the action on the petition that the DOJ
resorted to.10 Since Section 7 of the subject circular clearly and
must take, while Section 12 enumerates the options the DOJ
categorically directs the DOJ to dismiss outright an appeal or a
has with regard to the disposition of a Petition for Review or of
Petition for Review filed after arraignment, no resort to
interpretation is necessary. an appeal.

As aptly observed by respondent, Section 7 specifically applies

Petitioner's reliance to the statutory principle that "the last in
to a situation on what the DOJ must do when confronted with
order of position in the rule or regulation must prevail" is not
an appeal or a Petition for Review that is either clearly without
applicable. In addition to the fact that Section 7 of DOJ Circular
merit, manifestly intended to delay, or filed after an accused
No. 70 needs no construction, the cited principle cannot apply
has already been arraigned, i.e., he may dismiss it outright if it
because, as correctly observed by the Court of Appeals, there
is no irreconcilable conflict between Section 7 and Section 12 is patently without merit or manifestly intended to delay, or, if
it was filed after the acccused has already been arraigned, the
of DOJ Circular No. 70. Section 7 of the circular provides:
Secretary shall not give it due course.
SECTION 7. Action on the petition. - The Secretary of Justice
Section 12 applies generally to the disposition of an appeal.
may dismiss the petition outright if he finds the same to be
Under said section, the DOJ may take any of four actions when
patently without merit or manifestly intended for delay, or
disposing an appeal, namely:
when the issues raised therein are too unsubstantial to require
consideration. If an information has been filed in court
pursuant to the appealed resolution, the petition shall not be 1. reverse the appealed resolution;
given due course if the accused had already been arraigned.
Any arraignment made after the filing of the petition shall not 2. modify the appealed resolution;
bar the Secretary of Justice from exercising his power of
review. (Italics supplied.) 3. affirm the appealed resolution;

On the other hand, Section 12 of the same circular states:
SECTION 12. Disposition of the Appeal. - The Secretary may
reverse, affirm or modify the appealed resolution. He may,
motu proprio or upon motion, dismiss the Petition for Review
on any of the following grounds:
(a) That the petition was filed beyond the period prescribed in
Section 3 hereof;
4. dismiss the appeal altogether, depending on the
circumstances and incidents attendant thereto.
As to the dismissal of a Petition for Review or an appeal, the
grounds are provided for in Section 12 and, consequently, the
DOJ must evaluate the pertinent circumstances and the facts
of the case in order to determine which ground or grounds
shall apply.
Thus, when an accused has already been arraigned, the DOJ
must not give the appeal or Petition for Review due course and
must dismiss the same. This is bolstered by the fact that
arraignment of the accused prior to the filing of the appeal or
Petition for Review is set forth as one of the grounds for its
dismissal. Therefore, in such instance, the DOJ, noting that the
arraignment of an accused prior to the filing of an appeal or
Petition for Review is a ground for dismissal under Section 12,
must go back to Section 7 and act upon as mandated therein.
In other words, the DOJ must not give due course to, and must
necessarily dismiss, the appeal.
Likewise, petitioner's reliance on the principle of
contemporary construction, i.e., the DOJ is not precluded from
entertaining appeals where the accused had already been
arraigned, because it exercises discretionary power, and
because it promulgated itself the circular in question, is
unpersuasive. As aptly ratiocinated by the Court of Appeals:
True indeed is the principle that a contemporaneous
interpretation or construction by the officers charged with the
enforcement of the rules and regulations it promulgated is
entitled to great weight by the court in the latter's construction
of such rules and regulations. That does not, however, make
such a construction necessarily controlling or binding. For
equally settled is the rule that courts may disregard
contemporaneous construction in instances where the law or
rule construed possesses no ambiguity, where the
construction is clearly erroneous, where strong reason to the
contrary exists, and where the court has previously given the
statute a different interpretation.
If through misapprehension of law or a rule an executive or
administrative officer called upon to implement it has
erroneously applied or executed it, the error may be corrected
when the true construction is ascertained. If a
contemporaneous construction is found to be erroneous, the
same must be declared null and void. Such principle should be
as it is applied in the case at bar.11
Petitioner's posture on a supposed exception to the
mandatory import of the word "shall" is misplaced. It is
petitioner's view that the language of Section 12 is permissive
and therefore the mandate in Section 7 has been transformed
into a matter within the discretion of the DOJ. To support this
stance, petitioner cites a portion of Agpalo's Statutory
Construction which reads:
For instance, the word "shall" in Section 2 of Republic Act 304
which states that "banks or other financial institutions owned
or controlled by the Government shall, subject to availability
of funds xxx, accept at a discount at not more than two per
centum for ten years such (backpay) certificate" implies not a
mandatory, but a discretionary, meaning because of the
phrase "subject to availability of funds." Similarly, the word
"shall" in the provision to the effect that a corporation
violating the corporation law "shall, upon such violation being
proved, be dissolved by quo warranto proceedings" has been
construed as "may."12
After a judicious scrutiny of the cited passage, it becomes
apparent that the same is not applicable to the provision in
question. In the cited passage, the word "shall" departed from
its mandatory import connotation because it was connected to
certain provisos/conditions: "subject to the availability of
funds" and "upon such violation being proved." No such
proviso/condition, however, can be found in Section 7 of the
subject circular. Hence, the word "shall" retains its mandatory
import.
At this juncture, the Court of Appeals' disquisition in this
matter is enlightening:
Indeed, if the intent of Department Circular No. 70 were to give
the Secretary of Justice a discretionary power to dismiss or to
entertain a Petition for Review despite its being outrightly
dismissible, such as when the accused has already been
arraigned, or where the crime the accused is being charged
with has already prescribed, or there is no reversible error that
has been committed, or that there are legal or factual grounds
warranting dismissal, the result would not only be incongruous
but also irrational and even unjust. For then, the action of the
Secretary of Justice of giving due course to the petition would
serve no purpose and would only allow a great waste of time.
Moreover, to give the second sentence of Section 12 in
relation to its paragraph (e) a directory application would not
only subvert the avowed objectives of the Circular, that is, for
the expeditious and efficient administration of justice, but
would also render its other mandatory provisions - Sections 3,
5, 6 and 7, nugatory.13
In her steadfast effort to champion her case, petitioner
contends that the issue as to whether the DOJ rightfully
entertained the instant case, despite the arraignment of the
accused prior to its filing, has been rendered moot and
academic with the order of dismissal by the trial court dated
27 February 2003. Such contention deserves scant
consideration.
It must be stressed that the trial court dismissed the case
precisely because of the Resolutions of the DOJ after it had, in
grave abuse of its discretion, took cognizance of the Petition
for Review filed by petitioner. Having been rendered in grave
abuse of its discretion, the Resolutions of the DOJ are void. As
the order of dismissal of the trial court was made pursuant to
the void Resolutions of the DOJ, said order was likewise void.
The rule in this jurisdiction is that a void judgment is a
complete nullity and without legal effect, and that all
proceedings or actions founded thereon are themselves
regarded as invalid and ineffective for any purpose.14 That
respondent did not file a motion for reconsideration or appeal
from the dismissal order of the trial court is of no moment.
Since the dismissal was void, there was nothing for respondent
to oppose.
Petitioner further asserts that Section 7 of DOJ Circular No. 70
applies only to appeals from original resolution of the City
Prosecutor and does not apply in the instant case where an
appeal is interposed by petitioner from the Resolution of the
City Prosecutor denying her motion for reinvestigation. This
claim is baseless.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
A reading of Section 7 discloses that there is no qualification
given by the same provision to limit its application to appeals
from original resolutions and not to resolutions on
reinvestigation. Hence, the rule stating that "when the law
does not distinguish, we must not distinguish"15 finds
application in this regard.
Petitioner asserts that her arraignment was null and void as
the same was improvidently conducted. Again, this contention
is without merit. Records reveal that petitioner's arraignment
was without any restriction, condition or reservation. 16 In fact
she was assisted by her counsels Atty. Arthur Abudiente and
Atty. Maglinao when she pleaded to the charge.17
Moreover, the settled rule is that when an accused pleads to
the charge, he is deemed to have waived the right to
preliminary investigation and the right to question any
irregularity that surrounds it.18 This precept is also applicable
in cases of reinvestigation as well as in cases of review of such
reinvestigation. In this case, when petitioner unconditionally
pleaded to the charge, she effectively waived the
reinvestigation of the case by the prosecutor as well as the
right to appeal the result thereof to the DOJ Secretary. Thus,
with the arraignment of the petitioner, the DOJ Secretary can
no longer entertain the appeal or Petition for Review because
petitioner had already waived or abandoned the same.
Lastly, while there is authority19 permitting the Court to make
its own determination of probable cause, such, however,
cannot be made applicable in the instant case. As earlier
stated, the arraignment of petitioner constitutes a waiver of
her right to preliminary investigation or reinvestigation. Such
waiver is tantamount to a finding of probable cause. For this
reason, there is no need for the Court to determine the
existence or non-existence of probable cause.
Besides, under Rule 45 of the Rules of Court, only questions of
law may be raised in, and be subject of, a Petition for Review
on Certiorari since this Court is not a trier of facts. This being
the case, this Court cannot review the evidence adduced by
the parties before the prosecutor on the issue of the absence
or presence of probable cause.20
WHEREFORE, the petition is DENIED. The Decision of the Court
of Appeals dated 21 July 2004 and its Resolution dated 10 June
2005 in CA-G.R. SP No. 76396 are AFFIRMED. Costs against
petitioner.
SO ORDERED.
G.R. No. 150606 June 7, 2007
STATE PROSECUTOR AND SPECIAL PROSECUTOR ON SSS
CASES IN REGION V, ROMULO SJ. TOLENTINO, AND
REGIONAL STATE PROSECUTOR SANTIAGO M. TURINGAN, as
alter ego of the Secretary of Justice in Region V, in their
official capacities, and, for and in representation of the
PEOPLE OF THE PHILIPPINES and MARITES C. DE LA TORRE, in
her official capacity as counsel for the Complainant, SOCIAL
SECURITY SYSTEM (SSS) Bicol Cluster, petitioners,
vs.
HON. PABLO M. PAQUEO, JR., in his capacity as Presiding
Judge of RTC, Branch 23, of the City of Naga, and Accused
BENEDICT DY TECKLO, respondents.
DESICION
This is a petition for certiorari and mandamus alleging that
respondent Judge Pablo M. Paqueo, Jr., Regional Trial Court
(RTC) of Naga City, Branch 23, acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing
the Orders dated August 24, 2001 and October 15, 2001. The
Order dated August 24, 2001 granted the Motion to Quash of
private respondent Benedict Dy Tecklo, thus dismissing the
Information filed by petitioner State Prosecutor Romulo SJ.
Tolentino. The Order dated October 15, 2001 denied State
Prosecutor Tolentino’s Objection and Motion dated
September 5, 2001.
The facts are:
On June 22, 2001, petitioner State Prosecutor Romulo SJ.
Tolentino filed an Information charging private respondent
Benedict Dy Tecklo, the owner/proprietor of Qualistronic
Builders, of violation of Sec. 22 (a) in relation to Sec. 28 (e) of
Republic Act No. 82821 for failing to remit the premiums due
for his employee to the Social Security System despite
demand.
The Information contains a certification by State Prosecutor
Tolentino, thus:
CERTIFICATION
I HEREBY CERTIFY THAT THE REQUIRED
INVESTIGATION IN THIS CASE HAS BEEN CONDUCTED
BY THE UNDERSIGNED SPECIAL PROSECUTOR IN
ACCORDANCE WITH LAW AND UNDER OATH AS
OFFICER OF THE COURT, THAT THERE IS REASONABLE
GROUND TO BELIEVE THAT THE OFFENSE HAS BEEN
COMMITTED, THAT THE ACCUSED IS PROBABLY
GUILTY THEREOF AND THAT THE FILING OF THE
INFORMATION IS WITH THE PRIOR AUTHORITY AND
APPROVAL OF THE REGIONAL STATE PROSECUTOR.2
The case was raffled to the RTC of Naga City, Branch 23,
presided by respondent Judge Pablo M. Paqueo, Jr. It was set
for arraignment on August 7, 2001. On said date, counsel for
private respondent moved for the deferment of the
arraignment and requested time to file a motion to quash the
Information, which request was granted by the court.
On August 10, 2001, private respondent filed a Motion to
Quash, thus:
Accused, through counsel, most respectfully moves to
quash the Information x x x upon the sole ground that
State Prosecutor Romulo SJ Tolentino, not being the
City Prosecutor nor the Provincial Prosecutor, has no
legal personality nor is he legally clothed with the
authority to commence prosecution by the filing of
the Information and thus prosecute the case.3
On August 16, 2001, State Prosecutor Tolentino filed an
Opposition to Motion to Quash4 on the following grounds:
(1) He (State Prosecutor Tolentino) is authorized to
investigate, file the necessary Information and
prosecute SSS cases since he was designated as
Special Prosecutor for SSS cases by Regional State
Prosecutor Santiago M. Turingan by virtue of Regional
Order No. 97-024A dated July 14, 1997;
(2) In a letter5 dated October 24, 2000, Chief State
Prosecutor Jovencito Zuño confirmed such authority
and that Informations to be filed in court by
prosecutors-designate do not need the approval of
the Regional State Prosecutor or Provincial or City
Prosecutor;
(3) Under the Administrative Code of 1987, the
Regional State Prosecutor, as alter ego of the
Secretary of Justice, is vested with authority to
designate Special Prosecutors; and
(4) The City Prosecutor has been inhibited by the
private complainant from investigating SSS Cases as it
is the Panel of Prosecutors that is now acting as City
Prosecutor over all city cases involving violations of
the Social Security Act. As acting Prosecutor, the
panel outranks the City Prosecutor.
On August 24, 2001, the RTC issued an Order quashing the
Information and dismissing the case, thus:
For resolution is a motion to quash filed by x x x
counsel for the accused, with an opposition to the
same filed by State Prosecutor Romulo SJ. Tolentino,
the prosecutor who filed the information.
The motion is based on the lack of legal personality of
State Prosecutor Tolentino, [not being] legally clothed
with the authority to commence prosecution by the
filing of the information and, thus, prosecute the
case.
One of the grounds provided by the rules to quash an
Information is paragraph (c), of Sec. 3 of Rule 117.
"(c) that the officer who filed the
information had no authority to do so."
A glance on the face of the information would
glaringly show that it was filed by State Prosecutor
Romulo Tolentino, without the approval of the City
Prosecutor of Naga City, the situs of the crime, a
blatant violation of the third paragraph of Sec. 4 of
Rule 112 of the Revised Rules on Criminal Procedure.
An information filed by a qualified and authorized
officer is required for the jurisdiction of the court over
the case (Villa v. Ibañez, et al., 88 Phil. 402).
A justification put up by State Prosecutor Tolentino is
a Regional Order No. 07-024-A subject of which is the
Designation of Personnel issued by the Regional State
Prosecutor which in effect designated him as the
special prosecutor to handle the investigation of all
SSS cases filed before the Offices of the City
Prosecutor of the Cities of Naga, Iriga and Legaspi and
the Offices of the Provincial Prosecutor of the
different provinces in the Bicol Region, except the
provinces of Catanduanes and Masbate, and if
evidence warrants to file the necessary information
and prosecute the same in the court of [appropriate]
jurisdiction.
The designation of State Prosecutor Tolentino to
investigate, file this information if the evidence
warrants, and to prosecute SSS cases in court does
not exempt him from complying with the provision of
the third paragraph of [Sec. 4 of] Rule 112 of the
Revised Rules on Criminal Procedure, that no
complaint or information may be filed or dismissed by
an investigating prosecutor without the prior written
authority or approval of the Provincial or City
Prosecutor or Chief State Prosecutor or the
Ombudsman or his deputy. The designation given to
Prosecutor Tolentino came from the Regional Chief
State Prosecutor [who] is not one of those mentioned
exclusively by the Rules to approve in writing the filing
or the dismissal of an information.
Also, as ruled by this court in a similar case which was
dismissed, the second attached document supporting
the opposition to the motion, is but an opinion of the
Chief State prosecutor which has no force and effect
to set aside the mandatory requirement of the Rules
in the filing of an information in court.
 WHEREFORE, in view of all the foregoing, the motion
is granted, The information is hereby ordered
quashed and dismissed.6
Petitioner State Prosecutor Tolentino filed an Objection and
Motion praying that the Order dated August 24, 2001 be set
aside and that the case entitled People v. Tecklo be scheduled
for arraignment without unnecessary delay.
In an Order dated October 15, 2001, respondent Judge denied
Tolentino’s Objection and Motion, thus:
For consideration is an Objection and Motion filed by
State Prosecutor Romulo SJ. Tolentino, praying that
the Order of this court dated August 24, 2001 be set
aside and the case be scheduled for arraignment.
Acting on said motion upon receipt thereof, the court
gave the defense a period of fifteen (15) days from
receipt of the order dated September 18, 2001 to file
its comment and/or opposition; however, the period
lapsed with the court never receiving any comment
and/or opposition from the defense.
The records show that the issue raised in the
pleadings from both parties is whether Prosecutor
Tolentino, in filing the information, can just ignore the
provision of the third paragraph of Sec. 4 of Rule 112
of the Revised Rules on [C]riminal [P]rocedure.
It is the stand of this court, when it ruled and so holds
that Prosecutor Tolentino may conduct exclusive
investigation and prosecute all violations of the
provisions of the SSS Laws within the Bicol Region, but
in the filing of the information in court, he must
comply with [x x x] the above-cited provision of the
rules on criminal procedure, that is, to have the
provincial or city prosecutor at the situs of the offense
approve in writing said information. It was further
ruled by this court that failure to secure said written
authority of the provincial or city prosecutor would
touch on the jurisdiction of this court.
With the foregoing, this court cannot find any legal
basis to disturb its ruling of August 24, 2001. The
instant objection and motion is therefore denied.
SO ORDERED.7
Petitioners, thereafter, filed this petition praying for the
nullification of the Orders dated August 24, 2001 and October
15, 2001.
The main issue in this case is whether or not petitioner State
Prosecutor Tolentino is duly authorized to file the subject
Information without the approval of the City Prosecutor?
In their Memorandum,8 petitioners allege that State
Prosecutor Tolentino was duly authorized to file the
Information based on the following:
1. Petitioner Regional State Prosecutor Santiago M.
Turingan, per Regional Order dated July 14, 1997,
authorized State Prosecutor Tolentino to file the
necessary Information for violations of Republic Act
No. 8282 in the Bicol Region, except Masbate and
Catanduanes, and to prosecute the same in courts of
competent jurisdiction. This was in response to the
request of the SSS, Region V for the designation of a
Special Prosecutor to handle the prosecution of said
criminal cases with the Office of the City Prosecutor
and Office of the Provincial Prosecutor of the cities of
Naga, Legaspi and Iriga and all provinces of the Bicol
Region.
2. Per ruling of the Chief State Prosecutor in his letter
dated October 24, 2000, ". . . the information to be
filed in court by prosecutors-designate do not need
the approval of the Regional State Prosecutor or the
Provincial or City Prosecutor." An administrative
opinion interpreting existing rules issued by agencies
directly involved in the implementation of the rules
should be respected and upheld.
Respondent judge quashed the Information based on Sec. 3
(d), Rule 117 of the Revised Rules of Criminal Procedure in
relation to the third paragraph of Sec. 4, Rule 112 of the
Revised Rules of Criminal Procedure, thus:
Rule 112. Sec 4. Resolution of investigating
prosecutor and its review.— x x x
No complaint or information may be filed or
dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial
or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.9
Rule 117. Sec. 3. Grounds.— The accused may move
to quash the complaint or information on any of the
following grounds:
xxx
(d) That the officer who filed the information had no
authority to do so.
Notably, changes in the third paragraph of Sec. 4, Rule 112
were introduced in the Revised Rules of Criminal Procedure,
which took effect on December 1, 2000. It is noted that the
letter dated October 24, 2000 of Chief State Prosecutor
Jovencito R. Zuño, upon which State Prosecutor Tolentino
relies to support his authority to file the subject Information
without the approval of the City Prosecutor, was issued before
the changes in the third paragraph of Sec. 4, Rule 112 were
introduced in the Revised Rules of Criminal Procedure.
While the old 1985 Rules of Criminal Procedure, as amended,
stated that "[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 of chief
state prosecutor," the 2000 Revised Rules of Criminal
Procedure states that "[n]o complaint or information may be
filed or dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his
deputy." Since the provision is couched in negative terms
importing that the act shall not be done otherwise than
designated, it is mandatory.10
An examination of the functions11 of the Regional State
Prosecutor under Sec. 8 of Presidential Decree No.
127512showed that they do not include that of approving the
Information filed or dismissed by the investigating prosecutor.
It is a rule of statutory construction that the express mention
of one person, thing, or consequence implies the exclusion of
all others, expressio unius est exclusio alterius.
Since the Regional State Prosecutor is not included among the
law officers authorized to approve the filing or dismissal of the
Information of the investigating prosecutor, the Information
filed by petitioner State Prosecutor Tolentino did not comply
with the requirement of Sec. 4, Rule 112 of the Revised Rules
of Criminal Procedure. Consequently, the non-compliance was
a ground to quash the Information under Sec. 3 (d), Rule 117
of the Revised Rules of Criminal Procedure.
Petitioners also contend that the accused must move to quash
at any time before entering his plea and the trial court is barred
from granting further time to the accused to do so; and that
there is no evidence in support of the motion to quash.
Rule 117 of the Revised Rules of Criminal Procedure on the
Motion to Quash provides:
SECTION 1. Time to move to quash.—At any time
before entering his plea, the accused may move to
quash the complaint or information.
SEC. 2. Form and contents.— The motion to quash
shall be in writing, signed by the accused or his
counsel and shall distinctly specify its factual and legal
grounds. The court shall consider no grounds other
than those stated in the motion, except lack of
jurisdiction over the offense charged.
The Court finds that there is substantial compliance by private
respondent with the rule above quoted, as it was satisfactorily
explained in his Memorandum13 that his counsel orally moved
to quash the Information before the arraignment on August 7,
2001. In an Order issued on the same date, respondent Judge
required private respondent’s counsel to file a motion to
quash within five days from the issuance of the Order.
Accordingly, the motion was filed on August 10, 2001.
Moreover, there was no need to submit any evidence to
support the ground for quashing the Information, since it was
apparent and within judicial notice that petitioner State
Prosecutor Tolentino was not the City Prosecutor or the
Provincial Prosecutor.
As regards the allegation of willful miscitation of the ground
for quashing the Information, the Court finds that respondent
Judge failed to cite in his Order the correct paragraph under
Rule 117 of the Rules of Court where the ground relied upon
for quashing the Information is enumerated. What is
important, however, is that he correctly cited the ground for
quashing the Information.
Certiorari implies an indifferent disregard of the law,
arbitrariness and caprice, an omission to weigh pertinent
considerations, a decision arrived at without rational
deliberation.14
In this petition for certiorari, the Court finds that respondent
judge did not gravely abuse his discretion in dismissing the
Information filed by petitioner State Prosecutor Romulo SJ.
Tolentino for failure to comply with the third paragraph of Sec.
4, Rule 112 of the Revised Rules of Criminal Procedure.
The Rules of Court governs the pleading, practice and
procedure in all courts of the Philippines. For
the orderlyadministration of justice, the provisions contained
therein should be followed by all litigants, but especially by the
prosecution arm of the Government.
WHEREFORE, the petition for certiorari and mandamus
is DISMISSED for lack of merit.
No costs.
SO ORDERED.
G.R. No. 163741 August 7, 2007
SUMMERVILLE GENERAL MERCHANDISING & CO.,
INC., Petitioner,
vs.
HON. ANTONIO M. EUGENIO, JR., in his capacity as
PRESIDING JUDGE of RTC-MANILA, BR. 24, and ELIDAD KHO,
VIOLETA KHO, and ROGER KHO, Respondents.
RESOLUTION
This is a Petition for Review on Certiorari1 under Rule 45 which
seeks to reverse and set aside the May 26, 2004 Decision 2 of
the Court of Appeals (CA) in CA-G.R. SP No. 77180, which
upheld the October 24, 2001,3 August 21, 2002,4 and April 2,
20035 Orders of the Manila Regional Trial Court (RTC), Branch
24.
The instant petition originated from a complaint for unfair
competition filed by petitioner against private respondents
Elidad Kho, Violeta Kho, and Roger Kho, before the City
Prosecutor’s Office of Manila. After due investigation, the City
Prosecutor’s Office of Manila came out with its May 31, 2000
Resolution recommending the prosecution of private
respondents for unfair competition and dismissing private
respondents’ counterclaim against petitioner. Pursuant to the
Resolution, an Information6 for unfair competition was filed
against private respondents Khos before the Manila RTC,
Branch 24, which was docketed as Crim. Case No. 00-183261.
The charge as contained in the Information is hereby
reproduced as follows:
That on or about January 10, 2000 and for sometime prior and
subsequent thereto, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and helping
one another, then engaged in a business known as KEC
Cosmetic Laboratory, located at 2407 Topacio Street and 2412
Raymundo Street, San Andres, this City, in an unfair
competition, and for the purpose of deceiving/defrauding the
public in general and the Summerville General Merchandising
and Co. (Summerville) which is engaged, among others, in the
importation and distribution of facial cream products with the
trademark known as Chin Chun Su, herein represented by
VICTOR CHUA, its General Manager, did then and there
willfully, unlawfully, knowingly and jointly sell/dispose and/or
cause to be sold/disposed to the public facial cream products
using tools, implements and equipments in its production,
labeling and distribution, which give and depict the general
appearance of the Chin Chun Su facial cream products and
likely influence the purchasers to believe that the same are
those of the said Summerville.
CONTRARY TO LAW. 7 abeyance all pending incidents to await the final resolution of
Arraignment was scheduled for July 13, 2000; however, on
June 22 of the same year, private respondents filed a petition
for review with the Department of Justice (DOJ), assailing the
May 31, 2000 Resolution of the City Prosecutor’s Office of
Manila.
On August 17, 2000 the DOJ through Undersecretary Regis V.
Puno issued a Resolution8 affirming the May 31, 2000
Resolution of the City Prosecutor.
Upon a motion for reconsideration filed by private
respondents, then DOJ Secretary Hernando Perez issued his
June 18, 2001 Resolution which recalled and set aside the
August 17, 2000 Resolution of Undersecretary Puno, but
without however issuing a ruling on the propriety of the
complaint and merely indicated that the case would be further
reviewed and the corresponding resolution would be issued.9
The arraignment pushed through on October 11, 2000. Since
the accused refused to plea to the charge, a plea of not guilty
was entered for each of them. In the meantime, pending the
resolution of the petition for review, private respondents filed
a motion to suspend proceedings, but it was denied in the July
18, 2001 Order of the trial court.
On September 28, 2001, the DOJ issued a
Resolution10 dismissing both the complaint filed by petitioner
and the counterclaim filed by private respondents. Feeling
aggrieved, petitioner immediately filed a motion for
reconsideration of the Secretary’s ruling.
On October 23, 2001, the prosecution filed with the trial court
a Motion to Withdraw Information11 on the basis of the
September 28, 2001 Resolution issued by Secretary Perez. The
next day, the RTC issued the first assailed Order, dated October
24, 2001. The pertinent portion of the Order reads as follows:
Acting on the Motion to Withdraw Information filed by the trial
prosecutor dated October 22, 2001, and for the reason therein
cited the motion is hereby granted.
The Information against the accused is hereby ordered
withdrawn.
This order likewise renders the Motion to Dismiss filed by the
accused through counsel dated October 9, 2001, moot and
academic.
SO ORDERED.12
On November 23, 2001 petitioner filed its Motion for
Reconsideration of the October 24, 2001 Order.
On June 6, 2002, the trial court issued an Order 13 holding in
the motion filed before the DOJ. Private respondents Khos
filed a Motion for Reconsideration, arguing that the trial court
has all the facts necessary to resolve the pending incidents.
On July 31, 2002, the Khos filed a supplemental motion
insisting that the case be dismissed on the ground of double
jeopardy.
On August 21, 2002, the trial court issued the second assailed
Order,14 holding that due to its Order withdrawing the
Information, there is no necessity to order the dismissal of the
case. The re-filing of the Information would constitute double
jeopardy.15
Petitioner then filed a Motion for Reconsideration of the
August 21, 2002 Order.
On September 17, 2002, the DOJ, through Secretary Perez,
issued a Resolution16 granting the Motion for Reconsideration
filed by petitioner and ordered the Office of the City
Prosecutor of Manila to file the appropriate Information for
Unfair Competition. Private respondents Khos then filed a
Motion for Reconsideration with the Office of the Secretary of
Justice. Petitioner on the other hand filed a manifestation
before the trial court informing it of the recent development
with a prayer to reinstate the case.
On April 2, 2003, the trial court issued its last assailed
Order17 holding that the "revival of the case is now barred by
the impregnable wall of double jeopardy."18
On July 17, 2003, then Secretary of Justice Simeon
Datumanong finally disposed of the petition for review by
denying the Motion for Reconsideration filed by private
respondents Khos.
Petitioner then filed a Petition for Certiorari and Mandamus
with the CA which sought to annul the October 24, 2001,
August 21, 2002, and April 2, 2003 Orders issued by the Manila
RTC. In its May 26, 2004 Decision, the CA held that double
jeopardy had set in and that Judge Eugenio cannot be faulted
for dismissing the case. The CA ratiocinated that:
This is because once a complaint or information has been filed
in court, any disposition of the case rests in the sound
discretion of the court (Mamburao v. Ombudsman, G.R. Nos.
139141-42, Nov. 15, 2000), and the said undulating stance of
the prosecution was reason enough to grant its withdrawal
without the judge having to divine and weigh the probable
evidence of both the prosecution and the defense.19
Finding that no grave abuse of discretion was committed by
the trial court, the CA, in its May 26, 2004 Decision, denied due
course and dismissed the petition.20
Petitioner now comes before this Court assailing the Decision
of the CA on the following grounds:
1. The [CA] erred in not finding that respondent judge
committed grave abuse of discretion in proceeding
with the arraignment despite the fact that the
petition for review is still pending with the DOJ.
2. The [CA] gravely erred in not finding that the
respondent judge gravely abused his discretion in
allowing the withdrawal of the information without
making an independent assessment of the evidence.
3. The [CA] failed to apply the doctrine laid down by
the Hon. Supreme Court in Martinez versus Court of
Appeals, G.R. No. 112387, promulgated October 12,
1994 in consonance with another doctrinal ruling
in Crespo v. Mogul (151 SCRA 462), by not finding that
the trial court gravely abused its jurisdiction
amounting to lack of jurisdiction in allowing the
withdrawal of the Information in Crim. Case No. 00-
183261 and in disregarding the latest Resolution of
the DOJ directing the continuation of the prosecution
of the Respondents for Unfair Competition.
4. The [CA] seriously erred in law in ruling that the
reinstatement of the Information in Crim. Case No.
00-183261 pursuant to the DOJ Resolution directing
the continued prosecution of the respondents for
Unfair Competition will constitute double jeopardy.21
The issues submitted for our resolution can be summarized
into (1) whether Judge Eugenio committed grave abuse of
discretion in allowing the withdrawal of the Information
against the accused without making an independent
assessment of the evidence, contrary to established
jurisprudence; and (2) whether the re-filing or the
reinstatement of the Information would constitute double
jeopardy.
The petition has merit.
We have ruled time and again that once a case is filed with the
court, any disposition of it rests on the sound discretion of the
court. This rule, however, is not without restrictions. We held
in Santos v. Orda, Jr. that:
[T]he 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 court’s duty and
jurisdiction to determine a prima facie case.22
Thus, the courts should not blindly follow the resolutions
issued by the DOJ. On the contrary, it should determine on its
own whether there is probable cause to hold the accused for
trial.
In this case, it can be readily seen from the October 24, 2001
Order of Judge Eugenio, granting the withdrawal of the
Information, that the trial court glaringly failed to conduct its No costs.
own determination of a prima facie case, and simply adopted
the September 28, 2001 Resolution issued by the Secretary of SO ORDERED.
Justice. Where the prosecution is, as in this case,
disappointingly unsure, irresolute, and uncertain on whether
it should prosecute the accused, the court should have been
most circumspect and judicious in the resolution of the Motion
to Withdraw Information, and should have conducted its own
determination whether or not there is probable cause to hold
the accused for trial.1avvphi1

This failure of Judge Eugenio to independently evaluate and

assess the merits of the case against the accused violates the
complainant’s right to due process and constitutes grave
abuse of discretion amounting to excess of jurisdiction. And,
all other acts which trace their roots from this act committed
in excess of his jurisdiction, including the assailed Orders, lose
their standing and produce no effect whatsoever. Thus, it is
only but proper for this Court to remand the case to the trial
court to rule on the merits of the case to determine if a prima
facie case exists and consequently resolve the Motion to
Withdraw Information anew.

On the issue of double jeopardy, we hold that it does not bar

the reinstatement of the Information.

The right against double jeopardy is contained in Sec. 21, Art.

III of the Constitution, which reads: "No person shall be twice
put in jeopardy of punishment for the same offense. If an act
is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for
the same act."

For double jeopardy to set in, the following requisites must

concur: (1) there is a valid complaint or information; (2) the
complaint should be filed before a court of competent
jurisdiction; (3) the accused has pleaded to the charge; and (4)
the accused has been convicted, acquitted, or the case has
been dismissed or terminated without the express consent of
the accused.23

Since we have held that the October 24, 2001 Order granting
the withdrawal of the Information was committed with grave
abuse of discretion, then the accused was not acquitted nor
was there a valid and legal dismissal or termination of the case.
Ergo, the fourth requisite on the conviction and acquittal of the
accused in the dismissal of the case, without the approval of
the accused, was not met. Thus, double jeopardy has not set
in.

WHEREFORE, the petition is hereby GIVEN DUE COURSE, and

the assailed May 26, 2004 Decision of the CA and the October
24, 2001, August 21, 2002, and April 2, 2003 Orders of the
Manila RTC are hereby SET ASIDE and ANNULLED. The case is
remanded to the Manila RTC, Branch 24 to independently
evaluate or assess the merits of the case to determine whether
or not probable cause exists to hold the accused for trial.
G.R. No. 160772 July 13, 2009
HILARIO P. SORIANO, Petitioner,
vs.
OMBUDSMAN SIMEON V. MARCELO, HON. MARILOU B.
ANCHETA-MEJIA, Graft Investigation Officer II, and ATTY.
CELEDONIO P. BALASBAS, Respondents.
DECISION
The Case
Before this Court is a petition for certiorari under Rule 65 filed
by Hilario P. Soriano (petitioner) seeking to set aside the
Resolution dated 29 July 2002,1 which dismissed the complaint
against Assistant City Prosecutor Celedenio P. Balasbas
(Balasbas), and the Order dated 14 July 2003,2 which denied
the motion for reconsideration, both issued by the Office of
the Ombudsman in OMB-C-C-02-0246-E.
The Antecedent Facts
On 1 June 2001, petitioner filed an affidavit-complaint against
Mely S. Palad (Palad), a bank examiner of the Bangko Sentral
ng Pilipinas, for Falsification of Public Documents and Use of
Falsified Document punishable under Article 172 of the
Revised Penal Code. The complaint was filed with the Office of
the City Prosecutor of Manila and was docketed as I.S. No. 01-
F-22547. Acting on the complaint, Balasbas issued a Resolution
on 27 August 2001 recommending that Palad be charged in
court with Falsification of Public Documents and that the
charge of Use of Falsified Document be dropped for lack of
merit.
The Resolution of 27 August 2001 was forwarded to 2nd
Assistant City Prosecutor Leoncia R. Dimagiba (Dimagiba) who
recommended the filing of the information. This Resolution
was forwarded to the City Prosecutor for approval.
Meanwhile, on 25 January 2002, Palad filed a Motion to Re-
Open Case on the ground that she was not given a copy of the
subpoena or any notice regarding the complaint filed against
her.
On 27 February 2002, Dimagiba recommended the reopening
of the case. City Prosecutor Ramon R. Garcia (City Prosecutor)
approved the recommendation. Thus, on 26 March 2002,
Balasbas issued a subpoena to the parties setting the case for
investigation.
The reopening of the case prompted petitioner to file on 18
April 2002 with the Office of the Ombudsman a criminal
complaint against Balasbas for violation of Section 3(e) of
Republic Act No. 3019 (RA 3019), otherwise known as the Anti-
Graft and Corrupt Practices Act. Petitioner alleged that in the
reopening of I.S. No. 01-F-22547, Palad received an
unwarranted advantage or preference, through manifest
partiality, evident bad faith and gross inexcusable negligence,
causing undue injury to petitioner.
In the Resolution dated 29 July 2002, Graft Investigation
Officer Charity Grace A. Rico of the Office of the Ombudsman
recommended the dismissal of petitioner’s complaint for want
of sufficient basis. This recommendation was approved by
Ombudsman Simeon V. Marcelo. The Motion for
Reconsideration was denied in the Order of 14 July 2003,3 for
lack of merit.
Hence, the present petition for certiorari.
The Issue
Petitioner raises the sole issue of whether or not the Office of
the Ombudsman acted with grave abuse of discretion,
amounting to lack or in excess of jurisdiction, in dismissing the
complaint against Balasbas.
The Court’s Ruling
The instant petition is a special civil action for certiorari which
is a remedy meant to correct only errors of jurisdiction, not
errors of judgment. Petitioner assails the resolution of the
Office of the Ombudsman dismissing the criminal case against
Balasbas. Petitioner claims that the subordinates were not
supposed to blindly follow illegal orders of their superiors. He
insists that Balasbas is still liable for the reopening of the case
without lawful reasons, for no law gives his superiors the right
to indiscriminately order the reopening of a case. Petitioner
argues that Balasbas could have opted not to issue a subpoena
knowing that the directive of the City Prosecutor to reopen the
case of Palad was not warranted. Thus, for giving unwarranted
advantage or preference to Palad that caused undue injury to
petitioner, Balasbas must be held liable for violation of Section
3(e) of RA 3019.
The arguments raised by petitioner are not errors involving
jurisdiction but one of judgment, which is beyond the province
of the extraordinary remedy of certiorari. As we have ruled in
First Corporation v. Former Sixth Division of the Court of
Appeals,4 to wit:
It is a fundamental aphorism in law that a review of facts and
evidence is not the province of the extraordinary remedy of
certiorari, which is extra ordinem - beyond the ambit of
appeal. In certiorari proceedings, judicial review does not go
as far as to examine and assess the evidence of the parties and
to weigh the probative value thereof. It does not include an
inquiry as to the correctness of the evaluation of evidence. Any
error committed in the evaluation of evidence is merely an
error of judgment that cannot be remedied by certiorari. An
error of judgment is one which the court may commit in the
exercise of its jurisdiction. An error of jurisdiction is one where
the act complained of was issued by the court without or in
excess of jurisdiction, or with grave abuse of discretion, which
is tantamount to lack or in excess of jurisdiction and which
error is correctible only by the extraordinary writ of certiorari.
Certiorari will not be issued to cure errors of the trial court in
its appreciation of the evidence of the parties, or its
conclusions anchored on the said findings and its conclusions
of law. It is not for this Court to re- examine conflicting
evidence, re-evaluate the credibility of the witnesses or
substitute the findings of fact of the court a quo.1avvphi1
This notwithstanding, may this Court review the findings of the
Office of the Ombudsman? The general rule has been that the
courts will not interfere with the discretion of the prosecutor
or the Ombudsman, in the exercise of his investigative power,
to determine the specificity and adequacy of the averments of
the offense charged.5 As we have explained in Esquivel v.
Ombudsman:6
The Ombudsman is empowered to determine whether there
exists reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof and,
thereafter, to file the corresponding information with the
appropriate courts. Settled is the rule that the Supreme Court
will not ordinarily interfere with the Ombudsman’s exercise of
his investigatory and prosecutory powers without good and
compelling reasons to indicate otherwise. Said exercise of
powers is based upon the constitutional mandate and the
court will not interfere in its exercise. The rule is based not only
upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman,
but upon practicality as well. Otherwise, innumerable petitions
seeking dismissal of investigatory proceedings conducted by
the Ombudsman will grievously hamper the functions of the
office and the courts, in much the same way that courts will be
swamped if they had to review the exercise of discretion on
the part of public prosecutors each time they decided to file an
information or dismiss a complaint by a private complainant.
In Presidential Commission on Good Government v.
Desierto,7 we discussed the value of the Ombudsman’s
independence, thus:
Case law has it that the determination of probable cause
against those in public office during a preliminary investigation
is a function that belongs to the Office of the Ombudsman. The
Ombudsman has the discretion to determine whether a
criminal case, given its attendant facts and circumstances,
should be filed or not. It is basically his call. He may dismiss the
complaint forthwith should he find it to be insufficient in form
or substance, or he may proceed with the investigation if, in
his view, the complaint is in due and proper form and
substance. We have consistently refrained from interfering
with the constitutionally mandated investigatory and
prosecutorial powers of the Ombudsman. Thus, if the
Ombudsman, using professional judgment, finds the case
dismissible, the Court shall respect such findings, unless the
exercise of such discretionary powers is tainted by grave abuse
of discretion.
The Ombudsman has the full discretion to determine whether
or not a criminal case should be filed. Nonetheless, this Court
is not precluded from reviewing the Ombudsman’s action
when there is a charge of grave abuse of discretion. Grave
abuse of discretion implies a capricious and whimsical exercise
of judgment tantamount to lack of jurisdiction. The
Ombudsman’s exercise of power must have been done in an
arbitrary or despotic manner which must be so patent and
gross as to amount to an evasion of a positive duty or a virtual
refusal to perform the duty enjoined or to act at all in
contemplation of law.8 An examination of the records would
show that the Office of the Ombudsman did not act with grave
abuse of discretion, amounting to lack or in excess of
jurisdiction, in dismissing the complaint against Balasbas.
Balasbas, as Assistant City Prosecutor, was charged with
violation of Section 3(e) of the Anti-Graft and Corrupt Practices
Act which provides, thus:
SEC. 3. Corrupt practices of public officers. — In addition to
acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of licenses
or permits or other concessions.
The elements of the offense of violation of Section 3(e) of RA
3019, as amended, are as follows:
1) The accused must be a public officer discharging
administrative, judicial or official functions;
2) He must have acted with manifest partiality,
evident bad faith or inexcusable negligence; and
3) That his action caused undue injury to any party,
including the government, or gave any private party
unwarranted benefits, advantage or preference in the
discharge of his functions.9
In Albert v. Sandiganbayan,10 we discussed the second
element, to wit:
There is "manifest partiality" when there is a clear, notorious,
or plain inclination or predilection to favor one side or person
rather than another. "Evident bad faith" connotes not only bad
judgment but also palpably and patently fraudulent and
dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will. "Evident bad
faith" contemplates a state of mind affirmatively operating
with furtive design or with some motive or self-interest or ill
will or for ulterior purposes. "Gross inexcusable negligence"
refers to negligence characterized by the want of even the
slightest care, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but willfully and
intentionally, with conscious indifference to consequences
insofar as other persons may be affected.
And, as we explained in Collantes v. Marcelo,11
Well-settled is the rule that good faith is always presumed and
the Chapter on Human Relations of the Civil Code directs every
person, inter alia, to observe good faith which springs from the
fountain of good conscience. Specifically, a public officer is
presumed to have acted in good faith in the performance of
his duties. Mistakes committed by a public officer are not
actionable absent any clear showing that they were motivated
by malice or gross negligence amounting to bad faith. "Bad
faith" does not simply connote bad moral judgment or
negligence. There must be some dishonest purpose or some
moral obliquity and conscious doing of a wrong, a breach of a
sworn duty through some motive or intent or ill will. It partakes
of the nature of fraud. It contemplates a state of mind
affirmatively operating with furtive design or some motive of
self-interest or ill will for ulterior purposes.
The law also requires that the public officer’s action caused
undue injury to any party, including the government, or gave
any private party unwarranted benefits, advantage or
preference in the discharge of his functions. x x x
Petitioner failed to show that Balasbas acted with manifest
partiality, evident bad faith or inexcusable negligence in
issuing the subpoena. As further pointed out by the Office of
the Ombudsman in its Resolution of 29 July 2002, there was no
undue injury because petitioner "had suffered no actual
damage."
Although Balasbas initially recommended the filing of a
criminal case against Palad, this recommendation was still
subject to the approval of his superiors, Dimagiba and the City
Prosecutor. Balasbas, as investigating prosecutor, had no
power or control over the final disposition of Palad’s motion to
reopen the case. Conducting a preliminary investigation for
the purpose of determining whether there exists probable
cause to prosecute a person for the commission of a crime,
including the determination of whether to conclude, reopen or
dismiss the criminal complaint subject of the preliminary
investigation, is a matter that rests within the sound discretion
of the provincial or city prosecutor. This is clear from the
provision of Section 4, Rule 112 of the Revised Rules on
Criminal Procedure which specifically states that no complaint
or information may be filed or dismissed by an investigating
fiscal without the prior written authority of the provincial or
city fiscal or chief state prosecutor or the Ombudsman or his
deputy, thus:
SEC. 4. Resolution of investigating prosecutor and its review. If
the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor or to the Ombudsman or his deputy in cases
of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within
ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority
or approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal
of the complaint but his recommendation is disapproved by
the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information
against the respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the
corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The
same Rule shall apply in preliminary investigations conducted
by the officers of the Office of the Ombudsman. (Emphasis
supplied)
Palad filed a motion to reopen the case because she was not
given any notice or subpoena relative to the criminal case filed
against her, invoking her basic constitutional right to due
process of law. When asked to comment on Palad’s motion to
reopen, Balasbas even objected to the reopening of the case
as this would "only result to the delay in the final disposition
of the case."12 It was Dimagiba, his superior, who
recommended that the motion to reopen be granted "in the
interest of justice and considering that only 1 subpoena
containing 2 scheduled dates was sent to respondent, and
there being no return thereof, attached to the records."
Dimagiba’s recommendation was approved by the City
Prosecutor.13 Consonant with Section 4, Rule 112, Balasbas
had no other recourse but to follow the recommendation of
his superior. The subpoena he issued to the parties setting the
case for investigation was in pursuance to that
recommendation which was finally approved by the City
Prosecutor.
As regards petitioner’s claim that Balasbas "blindly followed
the illegal orders of his superiors," it is worthy to note that
petitioner filed a similar case for violation of Section 3(e) of RA
3019, as amended, this time against Dimagiba involving the
same Resolution dated 27 August 2001 submitted by Balasbas.
This Court, in Soriano v. Marcelo,14dismissed that petition for
lack of merit and held that petitioner was not able to show that
Dimagiba was motivated by self-interest or ill-will in reopening
the preliminary investigation stage of Palad’s case. The Court
further ruled that Dimagiba acted in good faith, as he believed
that a denial of the motion to reopen the preliminary
investigation due to the accused’s failure to submit her
counter-affidavit would only lead to more delays.
We reiterate the ruling in Collantes,15 thus:
Agencies tasked with the preliminary investigation and
prosecution of crimes should never forget that the purpose of
a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect
one from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to
protect the State from useless and expensive trials. It is,
therefore, imperative upon such agencies to relieve any
person from the trauma of going through a trial once it is
ascertained that the evidence is insufficient to sustain a prima
facie case or that no probable cause exists to form a sufficient
belief as to the guilt of the accused.
We find that the Office of the Ombudsman, acting within the
bounds of its constitutionally mandated duty, did not commit
grave abuse of discretion in dismissing the complaint against
Balasbas.
WHEREFORE, we DISMISS the petition. We AFFIRM the
Resolution dated 29 July 2002 and the Order dated 14 July
2003 of the Office of the Ombudsman in OMB-C-C-02-0246-E.
Costs against petitioner.
SO ORDERED.
A.M. No. P-08-2458 March 22, 2010
(Formerly OCA IPI No. 08-2755-P)
CRISOSTOMO M. PLOPINIO, Complainant,
vs.
ATTY. LIZA ZABALA-CARIÑO, Clerk of Court, Regional Trial
Court, Branch 29, Libmanan, Camarines Sur,Respondent.
DECISION
The instant administrative case stemmed from a Letter 1 dated
20 January 2007 of Crisostomo M. Plopinio (complainant),
informing the Court that he had charged Atty. Liza D. Zabala-
Cariño (respondent Atty. Cariño), Clerk of Court, Regional Trial
Court (RTC), Branch 29, Libmanan, Camarines Sur, criminally
and administratively before the Office of the Ombudsman, for
violation of Section 4(c), Republic Act No. 6713 and Section
3(e), Republic Act No. 3019 on 10 February 2006 and 22 March
2006. These were docketed as OMB-L-A-06-0072-A and OMB-
L-C-06-0110-A, and OMB-L-C-02-98-C and OMB-L-A-06-0212-
C, respectively.
Complainant stated that respondent Atty. Cariño may not have
disclosed to the Supreme Court, in the course of her
application as Clerk of Court, her pending administrative and
criminal cases before the Ombudsman.
In an Indorsement2 dated 8 May 2007, the Office of the Court
Administrator (OCA) directed respondent Atty. Cariño to give
her comment on the letter.
In her Comment3 dated 24 May 2007, respondent Atty. Cariño
vehemently denied the allegations against her. She claimed
that she was just being truthful when she answered "No" to
item number 37(a) of her Personal Data Sheet (PDS) which
states: "Have you ever been formally charged?" She admitted
that she was aware of the two (2) complaints filed against her
and her former Regional Election Director before the
Ombudsman. She, however, pointed out that these cases are
still in the preliminary investigation and pre-charge stages,
since probable cause has yet to be determined by the
investigating officers and as such, should not be considered as
formal charges yet.
Acting on the recommendation of the OCA, the Court issued a
resolution4 re-docketing the complaint as a regular
administrative matter against respondent Atty. Cariño and
referred the matter to the Executive Judge of RTC, Libmanan,
Camarines Sur, for investigation, report and recommendation
within sixty (60) days from receipt of the record.
On 4 February 2009, the Court issued a Resolution5 noting the
undated letter of complainant stating that Judge-Designate
Lore V. Bagalacsa is respondent Atty. Cariño’s godmother at
her wedding and in one of complainant’s cases, SP Civil Action
No. L-03-06, Judge Bagalacsa "exhibited ill-feelings" against
him when he questioned why she was still hearing his cases.
The Court referred the matter to Executive Judge Jaime E.
Contreras, RTC, Naga City, for investigation, report and
recommendation.
In his Report and Recommendation6 dated 29 June 2009,
Investigating Judge Contreras stated that the complaint
warrants disciplinary action against respondent Atty. Cariño.
The Investigating Judge found respondent liable for her failure
to properly understand the import of the question "Have you
ever been formally charged?" He contends that as a lawyer,
respondent Atty. Cariño should have known that such kind of
query was intended to dig into her personal background;
whether administrative or criminal cases were filed against her
regardless of whatever stages these may be.
Finding no deliberate intent on the part of respondent Atty.
Cariño to withhold information about her pending
Ombudsman cases, the Investigating Judge recommended
that she be admonished to be more circumspect and prudent
in answering her PDS, with a stern warning that a repetition of
the same or similar act shall be dealt with more severely. The
Investigating Judge further recommended that the question in
the PDS, which reads: "Have you ever been formally
charged?" be modified, in order to avoid any erroneous
interpretation, to read as follows: "Have you ever been
charged criminally or administrative (sic) in any forum? What
is the stage now?"
The OCA adopted the findings and conclusions of the
Investigating Judge but recommended that respondent Atty.
Cariño be suspended for a period of one (1) month without
pay, with a stern warning that a repetition of the same offense
or commission of a similar offense in the future, shall be dealt
with more severely.7 It concluded that it was not a simple case
of misconstruction of the term "formally charged" that could
justify the non-disclosure of the Ombudsman cases filed
against her. As a lawyer, she is expected to understand the
essence of the question. Moreover, the OCA noted that
respondent Atty. Cariño has been in the government service
for a period of eighteen (18) years, hence, she is presumed to
have gained familiarity with the questions in the PDS.
We disagree with the findings and recommendation of the
OCA.
Respondent Atty. Cariño is charged with dishonesty for
allegedly falsifying her PDS. Dishonesty is defined as
"intentionally making a false statement in any material fact, or
practicing or attempting to practice any deception or fraud in
securing his examination, registration, appointment or
promotion." It is also understood to imply a "disposition to lie,
cheat, deceive, or defraud; untrustworthiness; lack of
integrity; lack of honesty, probity or integrity in principle; lack
of fairness and straightforwardness; disposition to defraud,
deceive or betray."8
Thus, dishonesty, like bad faith, is not simply bad judgment or
negligence. Dishonesty is a question of intention. In
ascertaining the intention of a person accused of dishonesty,
consideration must be taken not only of the facts and
circumstances which gave rise to the act committed by the
petitioner, but also of his state of mind at the time the offense
was committed, the time he might have had at his disposal for
the purpose of meditating on the consequences of his act, and
the degree of reasoning he could have had at that moment.9
The intention to falsify or misrepresent, as found by the
Investigating Judge, is absent on the part of respondent Atty.
Cariño when she answered the question "Have you ever been
formally charged?" When she filled-up her PDS, she had in
mind the Uniform Rules on Administrative Cases in the Civil
Service, which states, among others:
Section 8. Complaint. – A complaint against a civil service
official or employee shall not be given due course unless it is in
writing and subscribed and sworn to by the complainant.
However, in cases initiated by the proper disciplining
authority, the complaint need not be under oath.
xxxx
The complaint should be written in a clear, simple and concise
language and in a systematic manner as to apprise the civil
servant concerned of the nature and cause of the accusation
against him and to enable him to intelligently prepare his
defense or answer.
The complaint shall contain the following:
a. full name and address of the complainant;
b. full name and address of the person complained of
as well as his position and office of employment;
c. a narration of the relevant and material facts which
shows the acts or omissions allegedly committed by
the civil servant;
d. certified true copies of documentary evidence and
affidavits of his witnesses, if any; and
e. certification or statement of non-forum shopping.
In the absence of any one of the aforementioned
requirements, the complaint shall be dismissed.
xxxx
Section 16. Formal Charge. – After a finding of a prima facie
case, the disciplining authority shall formally charge the person
complained of. The formal charge shall contain a specification
of charge(s), a brief statement of material or relevant facts,
accompanied by certified true copies of the documentary
evidence, if any, sworn statements covering the testimony of
witnesses, a directive to answer the charge(s) in writing under
oath in not less than seventy-two (72) hours from receipt
thereof, an advice for the respondent to indicate in his answer
whether or not he elects a formal investigation of the
charge(s), and a notice that he is entitled to be assisted by a
counsel of his choice.
If the respondent has submitted his comment and counter-
affidavits during the preliminary investigation, he shall be
given the opportunity to submit additional evidence.
The disciplining authority shall not entertain requests for
clarification, bills of particulars or motions to dismiss which are
obviously designed to delay the administrative proceedings. If
any of these pleadings are interposed by the respondent, the
same shall be considered as an answer and shall be evaluated
as such.
xxxx
Section 34. Effect of the Pendency of an Administrative Case.
– Pendency of an administrative case shall not disqualify
respondent from promotion or from claiming
maternity/paternity benefits.
For this purpose, a pending administrative case shall be
construed as follows:
a. When the disciplining authority has issued a formal charge;
or
b. In case of a complaint filed by a private person, a prima facie
case is found to exist by the disciplining authority.
Respondent Atty. Cariño’s non-disclosure of her pending
Ombudsman cases was by reason of her interpretation of what
a formal charge meant as distinguished from a complaint. She
banked on the distinction of these terms as defined under the
Uniform Rules on Administrative Cases in the Civil Service. She
correctly argued that the term "formal charge" in the PDS must
find its meaning in the Uniform Rules on Administrative Cases
in the Civil Service. For after all, both the Uniform Rules on
Administrative Cases in the Civil Service and the CS Form 212
(Revised 2005), otherwise known as the "Personal Data
Sheet," had been promulgated and revised by the Civil Service
Commission itself.
It is not correct to say that this is a simple case of
misconstruction of the term "formally charge" and that as a
lawyer, respondent Atty. Cariño is expected to understand the
essence of such question. For in reality, the question is subject
to varied interpretations.
In criminal cases, the determination of whether a person is
considered formally charged is found in Rule 112 of the
Revised Rules of Criminal Procedure, to wit:
Section 4. Resolution of investigating prosecutor and its
review. – If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases
of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within
ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal
of the complaint but his recommendation is disapproved by
the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information
against the respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting another
preliminary investigation.
If we but look at the attachments to the complaint itself, it is
evident that at the time respondent Atty. Cariño was applying
for the position of Clerk of Court, she had not yet been
"formally charged" administratively or criminally.
In the Orders10 dated 10 February 2006 in OMB-L-A-06-0072-A
and OMB-L-C-06-0110-A, the Deputy Ombudsman for Luzon
directed respondent Atty. Cariño and her Regional Election
Director, Atty. Zacarias C. Zaragosa, Jr., to submit their
counter-affidavit/s, affidavit/s of their witnesses, if any, and
such other controverting evidence, with proof of service of
copies upon the complainant within ten (10) days from receipt
of the orders. The orders further state that "[T]hereafter, the
case will be considered submitted for final disposition or taking
of further action as may warranted x x x."
Clearly, there were no final dispositions of the cases yet. In
fact, the complainant even stated in his Complaint11 that those
cases were not yet resolved by the Ombudsman.
Thus, it is only after the issuance of the resolution finding
probable cause and filing of the information in court that she
can be considered formally charged. In fact, the reckoning
point is the filing of the information with the written authority
or approval of the Ombudsman.1avvphi1

To rule otherwise would subject herein respondent, or any civil

servant for that matter, to extreme hardships considering that
a government official or employee formally charged is
deprived of some rights/privileges, i.e., obtaining loans from
the Government Service Insurance System or other
government-lending institutions, delay in the release of
retirement benefits, disqualification from being nominated or
appointed to any judicial post12 and, in some instances,
prohibition to travel.

To summarize, a person shall be considered formally charged:

(1) In administrative proceedings – (a) upon the filing

of a complaint at the instance of the disciplining
authority; or (b) upon the finding of the existence of
a prima facie case by the disciplining authority, in case
of a complaint filed by a private person.

(2) In criminal proceedings – (a) upon the finding of

the existence of probable cause by the investigating
prosecutor and the consequent filing of an
information in court with the required prior written
authority or approval of the provincial or city
prosecutor or chief state prosecutor or the
Ombudsman or his deputy; (b) upon the finding of the
existence of probable cause by the public prosecutor
or by the judge in cases not requiring a preliminary
investigation nor covered by the Rule on Summary
Procedure;13 or (c) upon the finding of cause or
ground to hold the accused for trial pursuant to
Section 13 of the Revised Rule on Summary
Procedure.14

WHEREFORE, in the light of foregoing, the instant

administrative complaint against Atty. Liza D. Zabala-Cariño,
Clerk of Court, RTC, Branch 29, Libmanan, Camarines Sur is
hereby DISMISSED for lack of merit.

The Office of the Court Administrator is DIRECTED to cause the

dissemination of the guidelines set forth herein.

SO ORDERED.