RULE 112

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. Nos. 71404-09 October 26, 1988

HERMILO RODIS, SR., petitioner,

vs.

THE SANDIGANBAYAN, SECOND DIVISION, and PEOPLE OF THE PHILIPPINES, respondents.

Quisimbing & Associates for petitioner.

The Solicitor General for respondents.

FERNAN, C.J.:

This is a petition for certiorari with prayer for a writ of preliminary injunction seeking to annul the
Resolution 1 of the Sandiganbayan dated July 15, 1985 denying herein petitioner's Motion to Quash the
Informations in Criminal Cases Nos. 10389, 10390, 10391, 10393, and 10394 pending before said court
and to enjoin the arraignment, pre-trial and trial herein.

The antecedents are as follows:

On May 22, 1985, petitioner Hermilo v. Rodis, Sr., former President of the Philippine Underwriters Finance
Corporation (PHILFINANCE) together with some other persons, was charged before the Sandiganbayan in
separate informations docketed therein as Criminal Cases Nos. 10389, 10390, 10391, 10393 and 10394
with five (5) counts of violation of Section 3(b) of Republic Act No. 3019, otherwise known as the Anti-
Graft and Corruption Practices Act.

On May 31, 1985, petitioner filed a motion to quash said informations as against him on the ground of
lack of preliminary investigation, with the alternative prayer that the "issue and/or enforcement of the
warrant of arrests as against him be held in abeyance while he seeks a reinvestigation by the Tanodbayan
pursuant to his right of (sic) preliminary investigation. 2

In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3, Rule 117 of the 1985 Rules
on Criminal Procedure enumerating the grounds for a motion to quash. It argued that since lack of
preliminary investigation is not among those enumerated thereunder, the motion to quash on this ground
should be denied for lack of merit and instead, petitioner should be ordered to file his Petition for
Reinvestigation and/or Motion for Reconsideration in accordance with Section 13 of the Revised Rules of
Procedure of the Tanodbayan. 3

Petitioner filed a Reply to the Opposition controverting the prosecution's claim that lack of preliminary
investigation is not a ground for quashing the information; but manifesting that he would file a petition
for re-investigation with the Tanodbayan as suggested. 4 This he did, on June 24,1985.

On July 15, 1985, while petitioner's petition for reinvestigation was pending action by the Tanodbayan,
the Sandiganbayan promulgated the assailed resolution denying petitioner's motion to quash for lack of
merit, stating:

... this Court is of the considered opinion that the alleged absence of preliminary investigation with respect
to the accused movant (herein petitioner) or his inability to participate in the preliminary investigation for
the reason that he was not duly served with a subpoena is not a proper ground for a motion to quash. If
the accused was not afforded due preliminary investigation, the proper remedy for him is to file a Petition
for Reinvestigation with the Office of the Tanodbayan, pursuant to Section (13) of Administrative Order
No. 111 of the Revised Rules of Procedure of the Tanodbayan, promulgated on December 1, 1979. 5

On the premise that no appeal or any plain and speedy remedy in the ordinary course of law will prove
adequate under the circumstances obtaining in the case at bar arraignment, pre-trial and trial having been
set on August 26, 27 and 28, 1985—and on the allegation that in denying his motion to quash, respondent
Sandiganbayan had acted with grave abuse of discretion amounting to lack or excess of jurisdiction,
petitioner brought the instant petition.
On August 1, 1985, the Court issued a Temporary Restraining Order enjoining the respondent
Sandiganbayan from proceeding with the arraignment, pre-trial and trial of Criminal Cases Nos. 10389,
10390, 10391, 10392, 6 10393 and 10394. 7

Petitioner contends that while it may be true that lack of preliminary investigation neither affects the
jurisdiction of the court nor impairs the validity of the information filed, nonetheless such lack of
preliminary investigation affects the regularity of the proceedings which led to the filing of the
information, such that in several cases, the Court had ordered the quashal of the information on said
ground; and that although lack of preliminary investigation is not enumerated as one of the grounds for a
motion to quash, the Sandiganbayan can nevertheless order the quashal of the informations pursuant to
its inherent power to amend and control its processes so as to make them conformable to law and justice.
8 He further claims that given the chance to be heard on preliminary investigation, he will demonstrate
to the Tanodbayan that he had no participation in the transactions complained of, except in one where
he merely approved for reimbursement representation expense incurred by one subordinate to him, the
Executive Vice-President, and after it had been approved by one superior to him, the vice-Chairman of
the Executive Committee and Chief Executive Officer of the (PHILFINANCE).

Respondent People of the Philippines on the other hand avers that as petitioner does not dispute that a
preliminary investigation was indeed conducted, what he is really protesting against is the lost
opportunity to participate therein due to the alleged failure of the Tanodbayan to serve a subpoena upon
him. It is, however, contended that this alleged failure did not affect the regularity of the preliminary
investigation as the Tanodbayan is justified under Section 3, Rule 112 of the 1985 Rules of Criminal
Procedure in proceeding with the preliminary investigation after an attempt to subpoena petitioner at
the latter's known address proved unavailing, and in basing its resolution on the evidence presented by
the complainant.

The analysis of respondent People, thru the Solicitor General, as to the real nature of the controversy at
bar is correct. It is not disputed that a preliminary investigation was conducted by the Tanodbayan prior
to the filing of the informations. Petitioner, however, was not able to participate therein as the subpoena
addressed to him at (PHILFINANCE) his last known address, was returned "unserved," petitioner having
already severed his employment with said company at the time of service. As petitioner reportedly left
(PHILFINANCE) under most unfriendly circumstances, PHILFINANCE did not give the process server his
residence address on record with it.

Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure, "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."
It is to be noted that this provision does not require as a condition sine qua non to the validity of the
proceedings the presence of the accused for as long as efforts to reach him were made, and an
opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the
rule is to block attempts of unscrupulous respondents to thwart the prosecution of offenses by hiding
themselves or by employing dilatory tactics.

Considering that petitioner has voluntarily appeared before the respondent Sandiganbayan in connection
with the criminal cases in question and has appeared in other preliminary investigations of other
PHILFINANCE charges filed in various fiscals' offices and the Ministry (now Department) of Justice, it is
apparent that the non-service of the subpoena upon him was not of his own doing or liking. To apply the
full force and effect of section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure
would, to our mind, greatly prejudice him.

It is worthwhile repeating that the avowed purposes of a preliminary investigation are "to secure the
innocent against hasty, malicious and oppressive prosecution, and to protect him 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 9 and while the "absence of preliminary investigations does not affect
the court's jurisdiction over the case (n)or do they impair the validity of the information or otherwise
render it defective, but, if there were no preliminary investigations and the defendants, before entering
their plea, invite the attention of the court to their absence, the court, instead of dismissing the
information, should conduct such investigation, order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted. 10 In this case, the Tanodbayan,
has the duty to conduct the said investigation. 11

Thus, although the Sandiganbayan was correct in ruling that the absence of a preliminary investigation is
not a ground for quashing an information, it should have held the proceedings in the criminal cases in
abeyance pending resolution by the Tanodbayan of petitioner's petition for reinvestigation, as
alternatively prayed for by him in his motion to quash.

During the pendency of the case at bar, petitioner manifested to the Court that in a Joint Order dated
September 26, 1985, Tanodbayan Special Prosecutors Roger C. Berbano Sr. and Eleuterio F. Guerrero had
recommended that the separate petitions for reinvestigation filed by petitioner and his co-accused be
given due course by the Tanodbayan and that said special prosecutors be given clearance and authority
to conduct such reinvestigation. Although it appears that these recommendations were approved by then
Tanodbayan Bernardo P. Fernandez on October 14, 1985 12 no further report on this matter has reached
the Court. As we cannot assume that the reinvestigation was indeed conducted as would render the
instant petition moot and academic, and considering the importance of the issue involved, we deemed it
proper to decide the petition on the merits.

WHEREFORE, the assailed resolution of the respondent Sandiganbayan dated July 15, 1985 in Criminal
Cases Nos. 10389, 10390, 10391, 10393 and 10394 is hereby affirmed, but respondent Sandiganbayan is
ordered to hold in abeyance the proceedings therein with respect to petitioner, subject to the outcome
of the reinvestigation of the Tanodbayan of the aforesaid cases. The Temporary Restraining Order issued
by the Court on August 1, 1985 is deemed superseded by this directive.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-
Aquino, Medialdea and Regalado, JJ., concur.

Gutierrez, Jr., J., took no part.

EN BANC

G.R. No. 96080 April 19, 1991

ATTY. MIGUEL P. PADERANGA petitioner,

vs.

HON. FRANKLIN M. DRILON, HON. SILVESTRE H. BELLO III, ATTY. HENRICK F. GINGOYON, HELEN B. CANOY
and REBECCA B. TAN, respondent

Concordio C. Diel, Constantino G. Jaraula for petitioner.

Benjamin G. Guimong for private respondents.

REGALADO, J.: p

In this special civil action for mandamus and prohibition with prayer for a writ of preliminary
injunction/restraining order, petitioner seeks to enjoin herein public respondents from including the
former as an accused in Criminal Case No. 86-39 for multiple murder, through a second amended
information, and to restrain them from prosecuting him.

The records disclose that on October 16, 1986, an information for multiple murder was filed in the
Regional Trial Court, Gingoog City, against Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie
Torion, John Doe, Peter Doe and Richard Doe, for the deaths on May 1, 1984 of Renato Bucag, his wife
Melchora Bucag, and their son Renato Bucag II. Venue was, however, transferred to Cagayan de Oro City
per Administrative Matter No. 87-2-244.

Only Felipe Galarion was tried and found guilty as charged. The rest of the accused remained at large.
Felipe Galarion, however, escaped from detention and has not been apprehended since then.
In an amended information filed on October 6, 1988, Felizardo Roxas, alias "Ely Roxas," "Fely Roxas" and
"Lolong Roxas," was included as a co-accused. Roxas retained petitioner Paderanga as his counsel.

As counsel for Roxas, petitioner filed, among others, an Omnibus Motion to dismiss, to Quash the Warrant
of Arrest and to Nullify the Arraignment on October 14, 1988. The trial court in an order dated January 9,
1989, denied this omnibus motion but directed the City Prosecutor "to conduct another preliminary
investigation or reinvestigation in order to grant the accused all the opportunity to adduce whatever
evidence he has in support of his defense."

In the course of the preliminary investigation, through a signed affidavit, Felizardo Roxas implicated herein
petitioner in the commission of the crime charged.

The City Prosecutor of Cagayan de Oro City inhibited himself from further conducting the preliminary
investigation against petitioner at the instance of the latter's counsel, per his resolution dated July 7, 1989.
In his first indorsement to the Department of Justice, dated July 24, 1989, said city prosecutor requested
the Department of Justice to designate a state prosecutor to continue the preliminary investigation
against herein petitioner.

In a resolution dated September 6, 1989,1 respondent State Prosecutor Henrick F. Gingoyon, who was
designated to continue with the conduct of the preliminary investigation against petitioner, directed the
amendment of the previously amended information to include and implead herein petitioner as one of
the accused therein. Petitioner moved for reconsideration,2 contending that the preliminary investigation
was not yet completed when said resolution was promulgated, and that he was deprived of his right to
present a corresponding counter-affidavit and additional evidence crucial to the determination of his
alleged "linkage" to the crime charged. The motion was, however, denied by respondent Gingoyon in his
order dated January 29, 1990.3

From the aforesaid resolution and order, petitioner filed a Petition for Review4 with the Department of
Justice. Thereafter, he submitted a Supplemental Petition with Memorandum,5 and then a Supplemental
Memorandum with Additional Exculpatory/Exonerating Evidence Annexed,6 attaching thereto an
affidavit of Roxas dated June 20, 1990 and purporting to be a retraction of his affidavit of March 30, 1990
wherein he implicated herein petitioner.

On August 10, 1990, the Department of Justice, through respondent Undersecretary Silvestre H. Bello III,
issued Resolution No. 6487 dismissing the said petition for review. His motion for reconsideration having
been likewise denied, petitioner then flied the instant petition for mandamus and prohibition.
Petitioner raises two basic issues, namely: (1) that the preliminary investigation as to him was not
complete; and (2) that there exists no prima facie evidence or probable cause to justify his inclusion in the
second amended information.

Preliminary investigation is generally inquisitorial, and it is often the only means of discovering the persons
who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information.
It is not a trial of the case on the merits and has no purpose except that of determining whether a crime
has been committed and whether there is probable cause to believe that the accused is guilty thereof,
and it does not place the person against whom it is taken in jeopardy.8

The institution of a criminal action depends upon the sound discretion of the fiscal. He has the quasi-
judicial discretion to determine whether or not a criminal case should be filed in court.9 Hence, the
general rule is that an injunction will not be granted to restrain a criminal prosecution.10 The case of
Brocka, et al. vs. Enrile, et al.11 cites several exceptions to the rule, to wit:

a. To afford adequate protection to the constitutional rights of the accused;

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions;

c. When there is a pre-judicial question which is sub judice;

d. When the acts of the officer are without or in excess of authority;

e. Where the prosecution is under an invalid law, ordinance or regulation;

f. When double jeopardy is clearly apparent;

g. Where the court has no jurisdiction over the offense;

h. Where it is a case of persecution rather than prosecution;

i. Where the charges are manifestly false and motivated by the lust for vengeance; and

j. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied.

A careful analysis of the circumstances obtaining in the present case, however, will readily show that the
same does not fall under any of the aforesaid exceptions. Hence, the petition at bar must be dismissed.

1. Petitioner avers that he was deprived of a full preliminary investigation by reason of the fact that
at the time the resolution of September 6, 1989 was issued, there were still several incidents pending
resolution such as the validity of the testimonies and affidavits of Felizardo Roxas and Rogelio Hanopol as
bases for preliminary investigation, the polygraph test of Roxas which he failed, and the clarificatory
questions which were supposed to be propounded by petitioner's counsel to Roxas and Hanopol.
Petitioner likwise claims that he was deprived of the opportunity to file his counter-affidavit to the
subpoena of April 25, 1989. These contentions are without merit.

Firstly, it will be noted that petitioner had already filed his counter-affidavit, pursuant to the subpoena
issued to him on April 17, 1989, wherein he controverted the charge against him and dismissed it as a
malicious design of his political opponents and enemies to link him to the crime. We hold that this is
sufficient compliance with the procedural requirement of the Rules of Court, specifically Section 3(b) of
Rule 112 thereof. Besides, petitioner failed to show that the subpoena issued on April 25, 1989 involved
a separate complaint charging an offense different and distinct from that charged in the complaint
attached to the first subpoena issued to him earlier.

Secondly, the veracity and credibility of the witnesses and their testimonies are matters of defense best
addressed to the trial court for its appreciation and evaluation.

Thirdly, the right of petitioner to ask clarificatory questions is not absolute.1âwphi1 The fiscal has the
discretion to determine whether or not he will propound these questions to the parties or witnesses
concerned. As clearly provided for under Section 3(e), Rule 112 of the Rules of Court.:

(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 to the investigating officer which the latter may propound to
the parties or witnesses concerned.
Lastly, it has been held that "the proper forum before which absence of preliminary investigation should
be ventilated is the Court of First Instance of a preliminary investigation does not go to the jurisdiction of
the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently
waived. These are matters to be inquired into by the trail court not an appellate court."12

2. Petitioner further submits that there is no prima facie evidence, or probable cause, or sufficient
justification to hold him to a tedious and prolonged public trial, on the basis of the following grounds: the
questioned resolution of respondent Gingoyon is full of factual misrepresentations or misapprehensions;
respondent's reliance on the decision of the Regional Trial Court against Felipe Galarion suffers from
constitutional and procedural infirmities considering that petitioner was not a party thereto, much less
was he given any opportunity to comment on or rebut the prosecution evidence; reliance on Rogelio
Hanopol's testimony is likewise "contemptible," it being merely hearsay in addition to the fact that
petitioner was never given the opportunity to cross-examine Hanopol at the time he testified in court;
and the affidavit of Roxas dated March 30, 1989, which is the only evidence against petitioner, has been
rendered nugatory by his affidavit of retraction dated June 20, 1990.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded 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.13 The quantum of evidence now required in preliminary investigation is such evidence sufficient to
"engender a well founded belief as to the fact of the commission of a crime and the respondent's probable
guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the
parties' evidence; it is for the presentation of such evidence only as may engender a wen grounded belief
that an offense has been committed and that the accused is probably guilty thereof.14 We are in accord
with the state prosecutor's findings in the case at bar that there exists prima facie evidence of petitioner's
involvement in the commission of the crime, it being sufficiently supported by the evidence presented
and the facts obtaining therein.

Likewise devoid of cogency is petitioner's argument that the testimonies of Galarion and Hanopol are
inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine
the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly
provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or cross-examine. Thus, even if petitioner was not given the opportunity to cross-
examine Galarion and Hanopol at the time they were presented to testify during the separate trial of the
case against Galarion and Roxas, he cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him. The admissibility or inadmissibility
of said testimonies should be ventilated before the trial court during the trial proper and not in the
preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control
over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be
waived by the accused, we find no compelling justification for a strict application of the evidentiary rules.
In addition, considering that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary
investigation does not form part of the record of the case in the Regional Trial Court, then the testimonies
of Galarion and Hanopol may not be admitted by the trial court if not presented in evidence by the
prosecuting fiscal. And, even if the prosecution does present such testimonies, petitioner can always
object thereto and the trial court can rule on the admissibility thereof; or the petitioner can, during the
trial, petition said court to compel the presentation of Galarion and Hanopol for purposes of cross-
examination.

WHEREFORE, the instant petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Griño- Aquino, Medialdea and Davide, Jr., JJ., concur.
FIRST DIVISION

G.R. No. 89989 January 28, 1991

EDEN D. PAREDES, petitioner,

vs.

SANDIGANBAYAN, respondent.

Rolando A. Suarez and Generoso S. Sansaet for petitioner.

GRIÑO-AQUINO, J.:

The issues in this habeas corpus case are: (1) whether the arrest and detention of the petitioner after a
preliminary investigation that was conducted by the Tanodbayan without notice to him, are valid, and (2)
whether the crime charged against him has already prescribed.

On January 21, 1976, Ceferino S. Paredes, Jr., then the Provincial Attorney of Agusan del Sur, applied for
a free patent for Lot No. 3097-A, PLS-67, with an area of 1,391 square meters, located beside the
Washington Highway in San Francisco, Agusan del Sur. His application was favorably acted upon by the
Land Inspector, Armando Luison. On May 11, 1976, OCT No. P-8379 was issued to him (p. 19, Rollo).

Eight (8) years later, on June 27, 1984, the Sangguniang Bayan of the Municipality of San Francisco passed
Resolution No. 40, requesting the Sangguniang Panlalawigan of Agusan del Sur to assist it in recovering
Lot No. 3097 from Attorney Paredes because the land had been designated and reserved as a school site.
The Sangguniang Bayan requested the provincial fiscal to file a perjury charge against Attorney Paredes,
Jr. (p. 15, Rollo). The resolution was approved by the Sangguniang Panlalawigan (p. 16, Rollo). On March
28,1985, Civil Case No. 512, for annulment of Attorney Paredes' title, was filed by the Republic in the
Regional Trial Court, Branch 6, Agusan del Sur (p. 17, Rollo).

During the pendency of Civil Case No. 512, Teofilo Gelacio, former vice-mayor of San Francisco, Agusan
del Sur, filed with the Tanodbayan on October 28, 1986, a criminal complaint charging Attorney Paredes
with having violated Section 3(a) of the Anti-Graft & Corrupt Practices Act (R.A. 3019) because he allegedly
used his office as Provincial Attorney to influence, persuade, and induce Armando Luison, Land Inspector
of the District Land Office in Agusan del Sur, to favorably indorse his free patent application. Section 3(a)
of the Anti-Graft Law provides:

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:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a
violation of rules and regulations duly promulgated by competent authority or an offense in connection
with the official duties of the latter, or allowing himself to be persuaded, induced or influenced to commit
such violation or offense.

On February 23, 1987, the Tanodbayan (now Ombudsman) referred the case to Fiscal Ernesto Brocoy of
Butuan City (TBP Case No. 86-03368) for preliminary investigation.

Fiscal Brocoy issued summons to Attorney Paredes, Jr. to appear at the preliminary investigation of the
case on August 29, 1987. However, the summons were served on November 19, 1987 upon the INP Station
Commander of San Francisco, instead of Atty. Paredes. The summons did not reach Attorney Paredes.
Nevertheless, without waiting for proof of service of the summons on the accused, Fiscal Brocoy
proceeded to conduct the preliminary examination of the complainant and his witnesses. On August 29,
1988, the fiscal issued a resolution finding a prima facie case of violation of Section 3(a) of R.A. 3019
committed by the accused. The Fiscal's resolution was approved by Tanodbayan Prosecutor Josephine
Fernandez on June 26, 1989 (p. 22, Rollo).

Attorney Paredes filed a motion for reconsideration of the Tanodbayan's resolution. He assailed the
validity of the preliminary investigation that was conducted by Fiscal Brocoy without notice to him (pp.
23-25, Rollo). His motion for reconsideration was denied.

In the local elections on January 18, 1988, Attorney Paredes was elected governor of Agusan del Sur.

On May 20, 1988, the Regional Trial Court of Agusan del Sur rendered a decision in Civil Case No. 512,
annulling Governor Paredes' Free Patent No. (X-8) 1253 and his OCT No. P-8379 and restoring the land "to
the mass of public domain" (pp. 85-98, Rollo).
On August 28,1988, an information was filed against Governor Paredes in the Sandiganbayan (Crim. Case
No. 13800) and a warrant for his arrest, fixing bail of P20,000 for his provisional liberty, was issued on
August 30, 1989 and served upon him (p. 12, Rollo). He refused to post bail in "protest against the injustice
to him as Governor," (p. 68, Rollo). Consequently, he was detained in the municipal jail of San Francisco.

On September 20, 1989, this petition for habeas corpus was filed by his wife, Mrs. Eden Paredes, against
the Sandiganbayan. She alleged that the warrant for her husband's arrest was void because the
preliminary investigation was void, and, that the crime charged in the information against him had already
prescribed.

In his return of the Writ, the Solicitor General, as counsel for the Sandiganbayan, agreed that lack of notice
to Governor Paredes of the preliminary investigation was "a fatal defect" invalidating not only the
preliminary investigation, but also the information prepared by the Tanodbayan, and the warrant of arrest
issued by the Sandiganbayan (p. 54, Rollo). The Solicitor General agreed with the petitioner's contention
that the ten year prescriptive period of the offense under Section 11 of R.A. 3019, assuming it was
committed on January 21, 1976, expired on January 21, 1986. Although the prescriptive period was
increased to fifteen (15) years under Section 4, B.P. Blg. 195 of March 16, 1982, the Solicitor General
opined that the new law may not be applied retroactively to Paredes.

On the other hand, the Ombudsman argued that the Sandiganbayan was improperly made respondent in
this case because it does not have custody of Governor Paredes; that the lack of preliminary investigation
did not affect the validity of the information nor the jurisdiction of the Sandiganbayan; and, that the crime
has not yet prescribed because the period of prescription commences to run not on the day the crime
was committed but on the day it was discovered by the offended party, the authorities, or their agents
(Art. 91, Revised Penal Code).

At the hearing of the petition of September 27, 1989, the Court directed the petitioner to implead the
Tanodbayan, through the Special Prosecutor, as well as the Ombudsman, as respondents. The Clerk of
Court was instructed to furnish them with copies of the petition and to require them to answer within ten
(10) days. The hearing of this case was reset on October 18, 1989 at 9:30 o'clock in the morning and
provisional liberty was granted Governor Ceferino Paredes, Jr. on his own recognizance pending the
determination of the petition.

On October 6, 1989, the Office of the Special Prosecutor filed its comment on the petition for habeas
corpus. The Special Prosecutor argued that since Paredes was charged in the Sandiganbayan for violation
of Republic Act 3019, and as the Sandiganbayan has jurisdiction over that offense, it is authorized to issue
a warrant for his arrest and a writ of habeas corpus may not issue to free him from the custody of the law.
After careful deliberation over the petition and the comments thereon of the Solicitor General, the Special
Prosecutor and the Ombudsman/Tanodbayan, the Court finds insufficient merit in the petition. The
settled rule is that the writ of habeas corpus will not issue where the person alleged to be restrained of
his liberty is in custody of an officer under a process issued by the court which has jurisdiction to do so
(Luna vs. Plaza, 26 SCRA 310; Celeste vs. People, 31 SCRA 391; Canary vs. Director of Prisons, 36 SCRA 39;
Ventura vs. People, L-46576, November 6, 1978).

The petitioner alleges that the information against Governor Paredes is invalid because the preliminary
investigation was invalid and the offense charged has already prescribed. Those circumstances do not
constitute valid grounds for the issuance of a writ of habeas corpus. The absence of a preliminary
investigation does not affect the court's jurisdiction over the case nor impair the validity of the
information or otherwise render it defective (People vs. Casiano, L-15309, February 16, 1961; People vs.
Figueroa, L-24273, April 30, 1969). The remedy of the accused in such a case is to call the attention of the
court to the lack of a preliminary investigation and demand, as a matter of right, that one be conducted.
The court, instead of dismissing the information, should merely suspend the trial and order the fiscal to
conduct a preliminary investigation. Thus did we rule in Ilagan vs. Enrile, 139 SCRA 349.

If the detained attorneys question their detention because of improper arrest, or that no preliminary
investigation has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion
before the trial court to quash the Warrant of Arrest, and/or the Information on grounds provided by the
Rules, or to ask for an investigation / reinvestigation of the case. Habeas corpus would not lie after the
Warrant of commitment was issued by the Court on the basis of the Information filed against the accused.
So it is explicitly provided for by Section 14, Rule 102 of the Rules of Court. . . . (Emphasis supplied).

Ilagan was a reiteration of this Court's ruling in People vs. Casiano, 1 SCRA 478 (1961) that:

The absence of a preliminary investigation does not affect the court's jurisdiction over the case. Nor does
it impair the validity of the information or otherwise render it defective. If there was no preliminary
investigation and the defendant, before entering his plea, calls the attention of the court to the absence
of a preliminary investigation, the court, instead of dismissing the information, should conduct such
investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary
investigation may be conducted.

The same rule was reiterated in the decision of this court in Doromal vs. Sandiganbayan, G.R. No. 85468,
September 7, 1989.

The defense of prescription of the offense charged in the information should be pleaded in the criminal
action otherwise it would be deemed waived (U.S. vs. Serapio, 23 Phil. 584, 598 citing Aldeguer vs. Hoskyn,
2 Phil. 500; Domingo vs. Osorio, 7 Phil. 405; Maxilom vs. Tabotabo, 9 Phil. 390; Harty vs. Luna, 13 Phil. 31;
Sunico vs. Ramirez, 14 Phil. 500). It is a proper ground for a motion to quash which should be filed before
the arraignment of the accused (Secs. 1 & 2, Rule 117, 1985 Rules of Criminal Procedure; People vs. Castro,
L-6407, July 29, 1954) for whether the crime may still be prosecuted and penalized should be determined
in the criminal case not in a special proceeding of habeas corpus.

All questions which may arise in the orderly course of a criminal prosecution are to be determined by the
court to whose jurisdiction the defendant has been subjected by the law, and the fact that a defendant
has a good and sufficient defense to a criminal charge on which he is held will not entitle him to his
discharge on habeas corpus. (12 R.C.L. 1206.) (Emphasis ours)

WHEREFORE, finding no merit in the petition, the same is hereby denied. The accused, Ceferino Paredes,
Jr. should file a bail bond of P20,000, fixed by the Sandiganbayan for his provisional liberty. Costs against
the petitioner.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

EN BANC

G.R. No. L-32791 January 27, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

BONIFACIO YUTILA, AQUILINO YUTILA and ESPERIDION YUTILA, defendants-appellants.

PER CURIAM:

This is an automatic review of the decision of the Court of First Instance of Samar, Branch VI, in Criminal
Case No. 38, entitled "The People of the Philippines, Plaintiff vs. Bonifacio Yutila, Aquilino Yutila and
Esperidion Yutila, Defendants", the dispositive portion of which reads:

WHEREFORE, this Court hereby declares each of the accused, namely: Esperidion Yutila, Bonifacio Yutila,
and Aquilino Yutila, 'GUILTY' beyond reasonable doubt of the crime of rape with Homicide under
paragraph 3 of the Republic Act No. 4111 and each is hereby sentenced to suffer the supreme penalty of
DEATH by electrocution. That each accused is ordered to indemnify the surviving heirs of the victim in the
amount of P12,000.00 and to pay the costs. The weapons used in the commission of the crime marked
Exhibits K and L are hereby ordered confiscated in favor of the government and to be disposed of in
accordance with law. The Clerk of Court is hereby directed to transmit the records of the case and the
evidence to the Supreme Court for automatic review.

SO ORDERED.

Guiuan Eastern Samar, September 30, 1970. 1

The three defendants were accused of Rape with Homicide in the following:

AMENDED
INFORMATION

The undersigned. Second Assistant Provincial Fiscal of Eastern Samar, accuses Bonifacio Yutila, Aquilino
Yutila and Esperidion Yutila of the crime of Rape with Homicide, committed as follows:

That on or about the 24th day of April, 1970, in the municipality ty of Gen. MacArthur, Province of Eastern
Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named ac cused
together with Gregorio Yutila who is still at large, with lewd design, conspiring, confederating together
and mutually helping one another by means of force, violence and intimidation, did, then and there,
willfully, unlawfully and feloniously have carnal knowledge with one Fidela Dema-angay Bederio against
her win and without her consent; and on the occasion of said rape and in order to effect the same, the
said accused, conspiring, confederating together and mutually helping one another with intent to kill one
Fidela Dema-angay Bederio did, then and there, wilfully unlawfully and feloniously attack, assault, stab
and wound the latter with sharp bolos which the accused have conveniently provided themselves for the
purpose thereby inflicting upon said Fidela Dema-angay Bederio stabbed wounds on the different vital
parts of her body, which wounds caused the death of said Fidela Dema-angay Bederio

CONTRARY TO LAW, with the aggravating circumstances of (1) superior strength; (2) the crime was
committed in an uninhabited place; and J-3 recidivism, the accused Bonifacio Yutila having been convicted
by final judgment of the crime of Homicide on January 14, 1964 and sentenced to suffer an imprisonment
of two (2) years, four months and one (1) day of prision correccional as minimum, to six (6) years and one
(1) day of prision mayor as maximum in Criminal Case No. 264 before the Court of First Instance, Br. VI,
Guiuan Eastern Samar.

Guiuan Eastern Samar, July 21, 1970. 2

The three defendants assign the following errors:

The lower court erred:

In convicting the accused under the original information that had already been supplanted or superseded
by the amended information;
II

In holding that the victim was raped by each of the four accused is home by the testimony of Dr. Jose
Dequito

III

In finding that there is here a clear and conclusive evidence that the three accused Aquilino, Esperidion
and Bonifacio, all surnamed Yutila have alternately committed the crime of rape.

IV

In stating that from the date when the victim was committed on April 24, 1970 and the subsequent events
that followed win show that the behavior of the three accused is that of criminals under qqqpur suit, being
always on guard and armed with the weapons even on occasions which normally does not necessitate
and demand it.

In not finding that the vital testimony of Virginita Bederio who claimed to have witnessed the alleged
crime being perpetrated by the accused was full of inconsistencies, contradictions, falsehoods, and
discrepancies.

VI

In declaring each of the accused guilty of the crime charged beyond reasonable doubt. 3

The facts, as stated in the brief of the defendants, are:

The prosecution alleged in this case that on April 24, 1970, Virginita Bederio while looking for her mother,
Fidela Dema-angay Bederio in the Municipality of General MacArthur, Eastern Samar, saw the three
accused Bonifacio, Aquilino, and Experidion together with their brother Gregorio, all named Yutila,
stabbing Fidela with a knife and long bolos. Fidela died as a result thereof. Virginita informed her father
Ciriaco Ciriaco after having viewed the body sent Virginita first to the barrio captain in Cancuevas and then
to the chief of police of Gen. MacArthur, Eastern Samar. The chief of police the next morning investigated
the place of the incident and made a sketch of the same. Then they brought the body to the medical
officer Dr. Jose Dequito and had the same autopsied. Afterwards, the prosecution filed this complaint.

The defense claimed that on April 24, 1970 Esperidion Yutila was at his house in Sitio Sapia Bo. Magsaysay,
Eastern Samar. He was with his family and attended to his farm at the back of his house the whole day.
Bonifacio and Aquilino together with Gregorio were at Bo. Viga attending a town fiesta. Later on, the three
brothers, Esperidion Bonifacio, and Aquilino met in Bo. Togop to discuss the death of their brother
Gregorio who was killed earlier and while attending a dance at a barrio dance hall were arrested, charged
with, and tried for the crime of rape with homicide. 4

According to the Plaintiff-Appellee, the facts are:

In the morning of April 24, 1970, the deceased Fidela Dema-angay de Bederio went to their farm at sitio
Togop Barrio San Isidro, Gen. MacArthur, Eastern Samar, to gather some food for her family. (pp. 21-22,
t.s.n., July 22, 1970). At about 11 o'clock the same morning, her husband, Ciriaco Bederio, who was home
in bed suffering for high fever, asked his eldest daughter, 12 year old Virginita, to go to the farm to help
her mother carry the food she may have gathered. (t.s.n., pp 22-23, Id.) Upon reaching the place, Virginita,
looked around but could not find her. (t.s.n., 24, Id.) Suddenly she heard her mother's voice saying: 'Pacio,
Goyong, Pediong, Quilino, because you have (had) sexual intercourse with me, please do not kill me.
(t.s.n., 24, Id.)

Proceeding towards the direction of her voice, Virginita saw her mother lying near the bank of a creek in
a sidewise position and being stab by appellants and their brother Gregorio, with a knife and boloes.(t.s.n.,
24, Id.) She hid herself among the bushes and, after the assailants left, Virginita approach her mother end
tried to talk to her but the latter did not respond. (t.s.n., 26, Id.) Whereupon, she went home and told her
father what she had seen(p. 27, t.s.n., Id.). They both repaired to the scene of the crime and found Fidela
dead.

Virginita was then sent by her father to the barrio captain in Cancuevas and later to the Chief of Police of
Gen. MacArthur, Eastern Samar, to inform them about the incident. (t.s.n., 63-64, July 22, 1970). The
following morning, the Chief of Police, accompanied by Ciriaco and his daughter Virginita, investigated
the place of the incident and made a sketch of the same. (Exh. F, p. 41, Rec.; pp. 48-49, t.s.n., Id.).

Fidela's body was taken to the puericulture center of Gen. MacArthur where Municipal Health Officer Dr.
Jose Dequito, on April 26, 1970, performed an autopsy and later set forth his findings in a medical report
(Exh. A, p. 8, Rec. ) showing that the deceased sustained multiple wounds and abrasions on different parts
of her body (t.s.n., 30, 5-8, Id.). He also found semenal fluid in the victim's vaginal canal, as well as a
horizontal laceration at the bifurcation of the labia minora indicating that the deceased was sexually
abused (t.s.n., 9, Id.).

At dawn of May 3, 1970, appellants were apprehended as they were attending a dance party at the school
building in barrio Taogap Gen. MacArthur (t.s.n., 81, 87-88, Id.). A short knife and a long bolo were
recovered from the possession of Bonifacio and Esperidion respectively. (t.s.n., 83-84, 89-90, Id.). 5

The reference by the trial court in its decision to the information as originally filed is of no moment. The
original and the amended information are substantially the same. The only difference is that in the original
information it is alleged that Gregorio Yutila, one of the alleged perpetrators of the crime, was already
dead while in the amended information it is stated that he is alive but at large. The record shows that the
defendant defendants were duly apprised of the contents of the amended information The lack of
preliminary investigation did not impair the validity of the proceedings. It did not affect the jurisdiction of
the Court of First Instance over the case. Moreover, the three defendants pleaded not guilty upon being
arraigned. The denial of the accused of his right to preliminary investigation cannot be raised for the first
time on appeal. 6

That the victim was raped by each of the three defendants and Gregorio Yutila was established by the
prosecution witnesses Virginita Bederio and Dr. Jose Dequito The physical evidence consisting of the torn
clothes of the victim, the presence of semen in her private parts, the physical injuries sustained by her not
only in her private parts but also in other parts of the body show that Fidela Dema-angay Bederio had
been raped.

It is a fact that the defendants were arrested while attending a party. That they had returned to Bo. Togop
tile very place where the crime took place, is not evidence that they are innocent. it is possible that the
said defendants thought that nobody could connect them with the rape and the death of the victim.

The alleged contradictions in the evidence of the prosecution are on mere details. Said contradictions are
not sufficient to render the testimony of Virginita Bederio incredible. She was subjected to a lengthy cross-
examination. Her positive testimony that the defendants and their brother Gregorio Yutila stabbed her
mother despite the latter's plea to spare her life because she had already been raped by the malefactors
had not been shaken.

The defendants denied having committed the crime charged in the amended information and alleged that
they were elsewhere when the said crime was committed. The defense of alibi cannot prevail over the
positive testimony of Virginita Bederio It is the weakest defense that an accused can avail of, and cannot
prosper, even in cases where proof of alibi is well supported by the testimony of witnesses, when the
Identity of the defendants, as the persons who committed the crime is fullly established by clear, explicit
and positive testimony.

It is apparent from the manner that the defendants committed the act charged in the amended
information that there was conspiracy. The statement made by the victim Fidela Dema angay de Bederio
that she had been raped by the three defendant defendants and Gregorio Yutila was made immediately
after she had been raped and before she was stabbed. Hence, her statement is part of the res gestae.

The conduct and behavior of Virginita Bederio from the time she witnessed the killing of her mother until
she reported said crime to her father and to the authorities, as well as her manner in testifying in court,
indicate that this witness was testifying to the truth. No motive has been shown why Virginita Bederio
should impute the commission of such a grave felony to said defendants.

The trial court has correctly found the defendants guilty of rape with homicide and imposed the proper
penalty.

WHEREFORE, the decision of the trial court sought to be reviewed is hereby AFFIRMED.

SO ORDERED.

Teehankee, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and
Melencio-Herrera, JJ., concur.

Fernando, C J., took no part.

EN BANC

A.M. No. MTJ-91-554 June 30, 1993

WARLITO ALISANGCO, complainant,

vs.

JUDGE JOSE C. TABILIRAN, JR., Municipal Circuit Trial Court, Manukan-Jose Dalman, Zamboanga del Norte,
respondent,

PER CURIAM:

In a sworn letter-complaint dated 9 May 1991 and addressed to the Chief Justice, the complainant, Warlito
Alisangco, charges respondent Judge Jose C. Tabiliran, Jr. of the Municipal Circuit Trial Court (MCTC) of
Manukan-Jose Dalman, Zamboanga del Norte, with grave abuse of authority, ignorance of the law and
conduct unbecoming of a Presiding Judge. Complainant avers therein that after the Station Commander
Jose Dalman, Zamboanga del Norte had filed an Amended Compliant in Criminal Case No. 147 (for the
violation of Presidential Decree [P.D.] No. 533) which included him as one of the accused, the respondent
Judge — in whose sala the case was pending — immediately issued a warrant for the complainant's arrest
without first determining his participation in the offense charged, and set the bond at P20,000.00. The
latter claims that the said bond was excessive considering that the value of the carabao involved in the
case is only P7,000.00. The complainant then recounts that he subsequently posted his cash bond with
the Regional Trial Court (RTC) of Dipolog City, after which he was served with a subpoena issued by the
respondent court directing him to appear in the morning of 21 February 1991 for arraignment and
preliminary investigation. The complainant no longer appeared on 21 February 1991 because he had
earlier filed a waiver of his right to a preliminary investigation on 20 February 1991. In view of his non-
appearance, the respondent Judge issued an order directing the Station Commander of Jose Dalman to
arrest the complainant and requiring the latter to show cause why his bond should not be confiscated.
Before a policeman could effect the arrest of the complainant in Dipolog City, the latter's counsel
intervened by filing a motion to lift the order of arrest. The respondent Judge, however, has not acted on
the said motion.

On 12 December 1991, we required the respondent to comment on the letter-complaint.

In his Comment dated 30 January 1992, the respondent Judge denies the imputed charges and alleges
that:

(a) The filing of the amended complaint was well within the ambit of Section 14, Rule 110 of the 1985
Rules on Criminal Procedure and the preliminary investigation was properly conducted prior to the
issuance of the warrant of arrest; he examined the complainant himself and the witnesses for the
offended party; as a matter of fact, the complainant readily admitted to being the financier of Rodolfo
Obelle in buying carabaos; having bought a stolen carabao, the complainant would be liable under Section
2(a) of P.D. No. 1612 (which the respondent Judge erroneously claims to be the Anti-Cattle Rustling Law
of 1979 when in reality, it is the Anti-Fencing Law of 1979).

(b) The bond he recommended was not excessive since the penalty prescribed in P.D. No. 533 is
prision mayor maximum to reclusion temporal minimum.

(c) The waiver of preliminary investigation was neither filed in the MCTC of Manukan on 20 February
1991 nor shown to him during the hearing on 21 February 1991 at the Jose Dalman court. It is unlikely
that the same was filed before the Manukan court; in all probability, the said waiver was filed in the
residence of the respondent Judge's Clerk of Court, Maria Blyth Abadilla, the complaint's neighbor and
relative, at Sicayab, Dipolog City. Granting, however, that it was indeed filed in Manukan, it could not have
been handed to him for consideration on 21 February 1991 at the Jose Dalman court because he did not
hold court in Manukan on the said date. Moreover, the MCTC at Manukan was the wrong place to file the
waiver because the complainant was charged before the MCTC of Jose Dalman; thus, the waiver should
have been filed in the latter court.

(d) He is a victim of a frame-up planned by the complainant's relative, Clerk of Court Maria Blyth
Abadilla. The latter is not in good terms with him; as a matter of fact, he had filed a case against her,
docketed as Adm. Matter No. P-91-597, for gross abuse of authority, intolerable insubordination and
misconduct.

in compliance with this Court's Resolution of 17 March 1992, the complainant filed his reply to the
comment on 18 June 1992.

In our Resolution of 12 November 1992, we referred the case to Executive Judge Jesus O. Angeles of
Branch 7, RTC of Dipolog City for investigation of the factual issue involved, namely, whether the
complainant had filed his waiver before 21 February 1991, as well as other issues raised therein. Judge
Angeles was directed to submit his report and recommendation thereon within thirty (30) days from
receipt of the records of the case.
Executive Judge Angeles subsequently complied with our order by submitting a report dated 22 February
1993 to Deputy Court Administrator Juanito A. Bernad. It reads:

In compliance with the Resolution of the Honorable Supreme Court, I investigated two personnel of the
Municipal Circuit Trial Court of Manukan-Jose Dalman who attended the preliminary investigation of the
case of Warlito Alisangco in Criminal Case No. 147, namely: Court Interpreter Bernard A. Letran, and Court
Stenographer Vivencia A. Retes, whose declarations established the following facts:

1) MCTC Clerk of Court Ma. Blyth B. Abadilla reported to office on February 20, 1991 until 5:00 p.m.,
which disproves the assertion of MCTC Judge Jose C. Tabiliran, Jr. that Alisangco's written waiver to
preliminary investigation was not given to Abadilla in Court but in her house in Sicayab, Dipolog City which
is about 39 kilometers from her station in Manukan;

2) Although Mrs. Retes cannot anymore recall the person who filed the waiver, but (sic) she knew
for a fact that somebody delivered to Mrs. Abadilla in her office on February 21, 1991, a document which
Abadilla said was a waiver;

3) Both Court personnel did not actually see the document, even during the preliminary
investigation held in Jose Dalman on the following day, February 21. They had no way of knowing whether
the waiver was attached to the records of the case, as the latter was already in the possession of Judge
Tabiliran;

4) Considering that both Judge Tabiliran and Abadilla did not mention of any case involving
preliminary (sic) investigation calendared on February 20 or 21 other than Criminal Case No. 147 against
Alisangco and some others, the waiver filed on February 20 must refer to no other but to the case of
Alisangco which was received by Clerk of Court Abadilla in her office in the afternoon of February 20,
1991.

I wanted to investigate the person who filed the waiver of Alisangco, as the latter was not the one who
personally brought the document to the Court, but there is no way, after exerting efforts, of knowing for
sure who that person was. Alisangco did not identify him even with the declaration of Abadilla in her
Affidavit that the waiver "was personally brought and delivered by one of Alisango's male helpers" (Annex
A of Complaint's Reply, A.M. MTJ-554).
Attached to this letter are the minutes of the investigation containing the testimonies of Mr. Bernard
Letran and Mrs. Vivencia Retes.

In its Memorandum dated 11 May 1993, the Office of the Court Administrator made the following findings
and conclusions:

As previously cited (See Memo, rollo, pp. 85-86) the right to a preliminary investigation is a personal right
which can be waived expressly or impliedly, as by failure to demand such right or by non-appearance at
the investigation. (Nombres vs. People, L-11437, February 28, 1959; "Concepcion vs. Chief of Police, L-
2393, August 6, 1948, cited in Remedial Law Compendium (RLC) p. 246, J. Regalado.)

Hence, "since the accused can waive the right to be present at the Preliminary Investigation, he cannot
be compelled to appear or be present during the same" (Cruz vs. Salva, L-12871, July 25, 1959, cited in
RLC, p. 247) and "the magistrate is not bound to proceed further with the hearing (21 AmJur 2d, p. 688).
The case thus should be forwarded to the proper Regional Trial Court for the filing of the corresponding
Criminal Information, as was done in Belarmino vs. Ayson (193 SCRA 647).

Respondent Judge, by ordering complainant a arrest despite the waiver made, has clearly abused his
discretion. His excuse of lack of knowledge of said waiver cannot be sustained as even if without such
express waiver, complainant's absence despite due notice would have been sufficient to prompt him to
dispense with such investigation and immediately forward the case records to the Provincial Prosecutor's
Office for review and for the filing of the corresponding Information, if warranted. Bad faith, in fact, is
imputed to him by the Investigating Judge in view of the circumstances showing his prior knowledge of
complaint's express waiver.

Malicious intent of respondent Judge to incarcerate accused-complainant is likewise manifested by his

order for his arrest despite knowing that said accused had already duly posted bail when arrested by virtue
of the first warrant issued and despite the Order of release issued by RTC, Branch 10 (Dipolog City) (See
tsn of February 21, 1991 hearing, rollo, p. 72)

Thus, while bail (sic) he imposed is deemed reasonable, we find respondent to have abused his discretion
in ordering the arrest of the accused-complainant despite the latter's express waiver to (sic) a preliminary
investigation and the filing of sufficient bail . . . .

and recommended that since "this is respondent's first offense of this sort," he be merely reprimanded
and warned that a repetition of the same or similar offense will be dealt with more severely.
We find the findings of fact and conclusions of the Office of the Court Administrator to be in order.
However, the recommended penalty is not commensurate to the offense.

There is more to this case which warrants a graver punishment.

1. Criminal Case No. 147 before the MCTC of Manukan-Jose Dalman, Zamboanga del Norte, is for
the violation of P.D. No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974. The lowest of the
penalties prescribed therein is prision mayor in its maximum period to reclusion temporal in its medium
period. The complaint in the said case was subsequently amended to implead the complainant as one of
the accused. As amended, it charges that conspiracy existed among the accused, and places the value of
the stolen carabao at P8,000.00.

In his comment, however, the respondent Judge states that the liability of the complainant is governed
by P.D. No. 1612 — the Anti-Fencing Law of

1979 — which he erroneously designated as the Anti-Cattle Rustling Law of 1979. Such a conclusion is
based on his claim that the complainant knowingly purchased a stolen carabao. It is clear that even if we
were to follow the respondent Judge's own assessment of the evidence, the amendment of the complaint
in Criminal Case No. 147 would have been improper in the first place because the said case involves a
violation of P.D. No. 533 and not P.D. No. 1612. In view thereof, respondent Judge should not have issued
a warrant of arrest in Criminal Case No. 147 but should have instead required the Station Commander to
file an entirely new case against the complainant for the violation of the Anti-Fencing Law (P.D. No. 1612).
In this regard then., the respondent Judge acted arbitrarily. It appears that he tried to cover-up this
mistake by intentionally designating P.D. No. 1612 as the Anti-Cattle Rustling Law of 1979, thus making it
appear that the amendment was in order because the offense, as charged, remained the same.

At any rate, this alleged irregularity in the issuance of the warrant of arrest, as well as the allegedly
excessive amount of bail recommended by the respondent Judge, has been rendered moot and academic
by the complainant's filing of a cash bond in the amount fixed by the respondent. 1

2. Considering that the MCTC of Manukan-Jose Dalman only had preliminary jurisdiction over the
case, the respondent Judge did not have any authority to set the case for arraignment. All it could do was
to calendar the same for preliminary investigation. There is no law or rule requiring an arraignment during
the preliminary investigation. Under Section 1, Rule 116 of the Revised Rules of Court, the arraignment
must be conducted by the court having jurisdiction to try the case on its merits. Thus, with respect to the
case filed against the complainant, this would be the proper Regional Trial Court which has exclusive
original jurisdiction over the said case by reason of the prescribed penalty.
Respondent Judge, therefore, either did not know the proper procedure on the matter or simply chose to
ignore the same.

3. It was duly proven that the waiver of the preliminary investigation was filed by the complainant
on 20 February 1991. Respondent Judge thus further exhibited ignorance of procedural law or plainly
abused his authority when he issued a warrant for the arrest of the complainant and ordered the latter
to show cause why his bond should not be confiscated. Even if we were to assume that the waiver was
not seen by him because it was not attached to the expediente of the case, the most that the court could
have done from the complainant's failure to appear was to consider him as having waived his right to a
preliminary investigation2 or declare such preliminary investigation closed and terminated as to him. It is
settled that even if an accused had expressed his desire to be given an opportunity to be present at the
preliminary investigation, but later changed his mind and renounced his right, he cannot be compelled to
be present in the said investigation.3

WHEREFORE, for ignorance of the law and grave abuse of authority, respondent Judge is hereby
sentenced to pay a fine of Five Thousand Pesos (P5,000.00), and by warned that the commission of the
same or similar acts would be dealt with more severely.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur.

Padilla, J. is on leave.
FIRST DIVISION

G.R. No. 114302 September 29, 1995

PEOPLE OF THE PHILIPPINES, petitioner,

vs.

HON. CAMILO O. MONTESA, JR., as Presiding Judge, Regional Trial Court, Branch 19, Malolos, Bulacan,
APOLONIO CRUZ and BERNARDA CRUZ, respondents.

DAVIDE, JR., J.:

The core issue raised in this petition for certiorari under Rule 65 of the Court is whether the respondent
Judge committed grave abuse of discretion amounting to lack of jurisdiction in dismissing Criminal Case
No. 1469-M-93 immediately after the arraignment of the accused-private respondents on the basis of the
resolution of the Assistant Provincial Prosecutor recommending the dismissal of the case despite the
disapproval of such resolution by the Provincial Prosecutor.

This petition was filed by the private prosecutor with the conformity of the Provincial Prosecutor of
Bulacan, Liberato L. Reyes. Concededly, it is defective in form. But, in view of the gravity of the error
allegedly committed by the respondent Judge, we required a comment from the office of the Solicitor
General, the law office of the Government authorized by law to represent the Government in this Court
and in the Court of Appeals in all criminal proceedings and to act and represent the Republic or the People
of the Philippines before any court, tribunal, body, or commission in any matter, action, or proceeding
which, in the opinion of the Solicitor General, affects the welfare of the people as the ends of justice may
require.1 We had done so in previous cases. 2

In its Comment 3 filed on 24 October 1994, the Office of the Solicitor General adopted the petition as its
own and incorporated a supplement thereto.

The private respondent's comment was filed only on 23 June 1995.

The factual and procedural antecedents which gave rise to this case are uncomplicated.

On 6 July 1993, an information was filed with the Regional Trail Court (RTC) of Bulacan charging private
respondents Apolonio Cruz and Bernarda Cruz with the crime of falsification of public document,
committed as follows:

[O]n or about the 10th day of January, 1991, in the municipality of Malolos, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the . . . accused, conspiring and
confederating together and mutually helping each other, did then and there wilfully, unlawfully and
feloniously prepare or cause to be prepared a document denominated as "Kasulatan ng Kaloobpala"
making it appear therein that the same was executed and signed by the spouses Cenon Constantino and
Sotera de la Cruz and that said persons personally appeared before Notary Public Santiago L. Lindayag and
acknowledged the same to be their own free act and deed, when in truth and in fact, as said accused well
knew, said document was neither executed and signed by the aforementioned Cenon Constantino and
Sotera de la Cruz, nor did they ever appear before the abovenamed notary public for the purpose of
acknowledging the same as said spouses were already dead at the time of the alleged execution of said
document, to the damage and prejudice of public interest. 4

The case was docketed as Criminal Case No. 1469-M-93 in Branch 19 of the said court which is presided
by the respondent Judge.

Arraignment was set on 19 October 1993.5

On 8 October 1993, the private respondents filed with the trial court a petition for reinvestigation 6
premised on the ground that "after the information was filed, material and relevant evidence was
discovered which, if presented in a reinvestigation, will certainly alter the earlier finding of probable cause
by the office of the Provincial Prosecutor thereby avoiding a prolonged litigation which is disadvantageous
to all concerned."

On 12 October 1993, the respondent Judge issued an order7 granting the petition for reinvestigation,
remanding the case to the Office of the Provincial Prosecutor for purposes of reinvestigation, and
cancelling the scheduled arraignment on 19 October 1993.

At the reinvestigation conducted by Assistant Provincial Prosecutor Edsel M. Rutor, the accused presented
what it considered new material and relevant evidence which consists merely of an affidavit of Feliza
Constantino who declared that she was the one responsible for the preparation of the questioned public
document. In his resolution of 14 December 1993,8 Rutor recommended the dismissal of the case
because:

[T]he issue is now moot with the admission by Feliza Constantino in an affidavit submitted only on
November 1993, wherein she made clear that she is the one responsible for the preparation of the
document subject matter of this case, . . . the accused spouses have no participation in the preparation of
the same.

Provincial Prosecutor Liberato Reyes disapproved the recommendation and the made of the following
handwritten note below the signature of Rutor on the last page of the latter's resolution:

Feliza Constantino did not admit having done the falsification. As vendor she merely warrants the good
title that transferred to the vendee & she assumes responsibility therefor.

Hence, the Court & not this office is in a better position to resolve the issue of whether the accused are
the perpetrators of the falsification. We should present our evidence that makes out a prima facie case &
let the Court decide, not this office pre-empting the prerogative of the Court. 9 (emphasis supplied)

Nonetheless, in obvious disregard of the adverse stand of the Provincial Prosecutor, Rutor submitted his
resolution to the trial court.

On 22 December 1993, the respondent Judge ordered the arraignment of the private respondents. They
pleaded not guilty. Forthwith, the trial court issued an order10 dismissing criminal Case No. 1469-M-93
on the basis of the Rutor resolution The order reads:

Before the Court is the Resolution of the Assistant Provincial Prosecutor for the dismissal of the case,
however, the Provincial Prosecutor deemed it wise to endorse to the Court the propriety of resolving the
case at bar. Both accused after having been arraigned and informed of the nature and cause of the
accusation entered a plea of NOT GUILTY.

The facts of the case, in brief, showed that both accused Apolonio Cruz and Bernarda Cruz were charged
with the offense of "Falsification of Public Document" as provided for under Art. 172 of the Revised Penal
Code in conjunction with Art. 171 thereof. Sotera dela Cruz at the time of her death was the registered
owner of a parcel of land situated at Barrio Pritil, Guiguinto, Bulacan and covered by TCT No. T-281264.
Following her death on February 1, 1989, one of the heirs of the deceased, Feliza Constantino, sold her
share to accused spouses for P200,000.00 pursuant to extrajudicial settlement with sale (Kasulatan ng
Pagmamana sa Labas ng Hukuman). In lieu of presenting the said document to the Register of Deeds for
purposes of transfer of said property to the vendees (accused spouses Apolonio and Bernarda Cruz),
however, a document denominated as "Kasulatan ng Kaloobpala" dated January 10, 1991 to which both
accused affixed their signatures as well as the vendee's parents Sotera dela Cruz and Constantino Cruz
despite their death long before the execution of said document, was the one presented to the Register of
Deeds. Pursuant therewith, TCT No. T-281264 in the name of Sotera dela Cruz was cancelled and in lieu
thereof, a new certificate of title TCT No. T-10178 was issued in favor of the accused. Conformably with
the foregoing circumstances, accused spouses are charged with the offense of Falsification of Public
Document.

Feliza Constantino, one of the two legitimate children of deceased Sotera dela Cruz, expressly admitted
having sold her share of 1,034 square meters to accused spouses for a valuable consideration pursuant to
"Kasulatan ng Pagmamana sa Labas ng Hukuman na may Bilihan", however, a certain person instead
whom she did not identify, caused the execution of a document of "Kasulatan ng Kaloobpala" and used
the same to effect the transfer of the property to accused spouses.

It is indubitably established that the property subject of the alleged falsification of public document was
actually sold to accused spouses for a valuable consideration by one of the heirs of deceased Sotera dela
Cruz pursuant to "Pagmamana sa Labas ng Hukuman"; that accused the spouses are not directly involved
in the preparation of said "Kasulatan ng Kaloobpala"; and that the person other than the accused was
instrumental in the preparation of said document and who facilitated the transfer of said property to
accused spouses. The express admission by the sister of the complainant that she sold her share to
accused spouses for a valuable consideration and that the latter have no hand in the alleged falsification
of public document are material and of the great probative value and the same should be given persuasive
effect and credence in judicious assessment of the case at bar. The said admission for all legal intents and
purposes exonerates both accused of the offense charged. Accordingly, there is grave doubt to hold the
accused criminally liable for the offense charged in the Information. The doubt as to the liability of the
accused is evident by the varied and contradictory findings of the Assistant Provincial Prosecutors. In the
absence, therefore, of a clear and convincing proof to establish the guilt of the accused beyond reasonable
doubt, as prayed for the Assistant Provincial Prosecutor for the dismissal of the case and finding the
motion tenable, the same be given due course.

On 5 January 1994, the private prosecutor, Atty. Edwin P. Cerezo, who received a copy of the dismissal
order on 28 December 1993, filed a motion for its reconsideration. 11 He alleged therein that the Rutor
resolution was not approved by the Provincial Prosecutor who, on the contrary, directed Assistant
Provincial Prosecutor Rutor to proceed with the presentation of the evidence for the prosecution; and
that the unapproved resolution did not invalidate of modify the information already filed, neither did it
serve as basis for the court's order summarily dismissing the case. He further alleged that since the court
had arraigned the accused, it should have, pursuant to the Rules, scheduled the case for pre-trial and trial.
At the hearing of the motion for reconsideration on 11 January 1994, Assistant Provincial Prosecutor Rutor
vehemently opposed it on the ground that the private prosecutor has no personality to intervene in the
proceedings and that the motion was a mere scrap of paper for lack of his "(Rutor's) conformity. The
respondent Judge forthwith denied the motion. 12

On 12 January 1994, the Provincial Prosecutor and the private prosecutor jointly filed another motion to
reconsider 13 the dismissal order of 22 December 1993. They alleged therein that:

2. This Honorable Court based its Order of dismissal on the Resolution of the Asst. Public Prosecutor
Edsel M. Rutor dated December 14, 1993, recommending for its dismissal;

3. Said Resolution of Asst. Pros. Edsel M. Rutor was not approved by the undersigned Provincial
Prosecutor as he is convinced that a prima facie case existed against the accused, instead, he directed
Asst. Pros. Edsel M. Rutor to proceed with the presentation of the prosecution evidence in court;

4. The determination of the existence of a prima facie case by the Office of the Provincial Prosecutor
for the purposes of filing information in the court must be respected by this Honorable Court, and it is
beyond its jurisdiction to interfere with the said findings, more so when an information had already been
filed in court, as in the present case;

5. For another, accused were already arraigned on the crime charged in the Information dated June
18, 1993, yet this Honorable Court summarily dismissed the case solely based on the unapproved
Resolution of Pros. Rutor not on the evidence as no evidence has yet been presented by the parties;

6. Under the Rules, after arraignment of the accused had been made, Pre-trial and Trial will follow;

They then prayed that on the order of dismissal be set aside and the case be set for pre-trial and trial.

In his order of 1 February 1994, 14 the respondent Judge denied the aforesaid motion for reconsideration
for having been filed out of time as a copy of the order of dismissal was received by Assistant Provincial
Prosecutor Rutor on 22 December 1993, and he declared that the motion for reconsideration earlier filed
by the private prosecutor "is of no moment as [it] does not have the imprimatur of the Assistant Provincial
Prosecutor and perforce does not affect the running of the prescriptive period."
Hence, this petition which was filed on 25 March 1994 by the private complainant, through the private
prosecutor, with the approval of Provincial Prosecutor Liberato L. Reyes.

The petition is impressed with merit.

The rule is settled that once a criminal complaint or information is filed in court, any disposition thereof,
such as its dismissal or the conviction or acquittal of the accused, rests in the sound discretion of the court.
While the prosecutor retains the discretion and control of the prosecution of the case, he cannot impose
his opinion on the court. The court is the best and the sole judge on what to do with the case. Accordingly,
a motion to dismiss the case filed by the prosecutor before or after the arraignment, or after a
reinvestigation, or upon instructions of the Secretary of Justice who reviewed the records upon
reinvestigation, should be addressed to the discretion of the court. The action of the court must not,
however, impair the substantial rights of the accused or the right of the People to due process of law. 15

In the instant case, the respondent Judge granted the motion for reinvestigation and directed the Office
of the Provincial Prosecutor of Bulacan to conduct the reinvestigation. The former was, therefore, deemed
to have deferred to the authority of the prosecution arm of the Government to consider the so-called new
relevant and material evidence and determine whether the information it had filed should stand. Having
done so, it behooved the respondent Judge to wait for a final resolution of the incident. In Marcelo vs.
Court of Appeals, 16 this Court ruled:

Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accused's motion
for review of the resolution of the investigating prosecutor or for reinvestigation and defers the
arraignment until resolution of the said motion must act on the resolution of the said motion must act on
the resolution reversing the investigating prosecutor's finding or on a motion to dismiss based thereon
only upon proof that such resolution is already final in that no appeal was taken thereon to the
Department of Justice.

The resolution of Assistant Provincial Prosecutor Rutor recommending the dismissal of the case never
became final, for it was not approved by the Provincial Prosecutor. On the contrary, the latter disapproved
it. As a consequence, the final resolution with respect to the reinvestigation is that of the Provincial
Prosecutor, for under Section 4, Rule 112 of the Rules of Court, no complaint or information may be filed
or dismissed by an investigating fiscal or chief state prosecutor. Also, under Section 1(d) of R.A. No.
5180,17 as amended by P.D. No. 77 and P.D. No. 911:
[N]o assistant fiscal or state prosecutor may file an information or dismiss a case except with the prior
authority or approval of the provincial or city fiscal or Chief State Prosecutor. . . .

The Provincial Prosecutor's opinion that the prosecution should present its "evidence that makes out a
prima facie case" clearly indicate that he was convinced that there is at the very least a reasonable ground
to believe that the crime of falsification was committed and the private respondents are probably guilty
thereof. The findings and conclusion of the Provincial Prosecutor, being the final disposition on the
reinvestigation, should have been the sole and only valid basis for the respondent Judge's final action with
respect to the reinvestigation in the light of the foregoing provisions of the Rules of Court and R.A. No.
5180, as amended, and the ruling in Marcelo. The respondent Judge must have miscomprehended or
misunderstood the notation of the Provincial Prosecutor that "the court & not this office is in a better
position to resolve the issue of whether the accused are the perpetrators of the falsification" as a carte
blanche to act on the resolution and recommendation of Rutor. He closed his eyes to the Provincial
Prosecutor's stand the prosecution should present its evidence "that makes out a prima facie case and let
the court decide," which simply means that the case should not be dismissed on the basis of Rutor's
recommendation.

The Rutor resolution was rendered valueless because of the Provincial Prosecutor's approval thereof. In
submitting it nonetheless to the court and moving for the dismissal of the case, Rutor showed outright
disregard of the aforementioned provisions and ruling. So did the respondent Judge when he dismissed
the case on the basis of that resolution. Their disregard of the said provisions and ruling is condemnable,
for it carries with it a whimsical and capricious bent that taints the exercise of discretion with grave abuse,
thereby rendering the whole act infirmed and void.

Since the Provincial Prosecutor, to which the respondent Judge had deferred the matter of
reinvestigation, had finally resolved to stand on the information and to present evidence to prove the
quilt of the private respondents for the crime charged, the respondent Judge did not have the option to
dismiss the case on the basis of the disapproved resolution of Rutor. His only option was to proceed with
the arraignment of the accused and, thereafter, conduct a pre-trial and trial on the merits should they
enter a plea of not guilty.

It must be observed that, although the respondent Judge was convinced of Rutor's recommendation to
dismiss the case on the ground of want of probable cause because of the "admission" of Feliza Constantino
that the accused spouses had no participation in the preparation of the questioned document, he still
ordered the arraignment of the private respondents. He seemed to have something in mind for the
protection of the interest of the private respondents. Presumably, he thought that the arraignment which
was immediately followed by the dismissal of the case would forever foreclose, on the ground of double
jeopardy, any reopening of the case.
For having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction thereby
depriving the State of due process of law or a fair opportunity to present its evidence and prove its case,
the challenged order of the respondent Judge dismissing Criminal Case No. 1469-M-93 is a null and void.
18 We thus set it aside and order the reinstatement of the information.

A few words are in order before we write finis to this case.

This Court wonders why Assistant Provincial Prosecutor Edsel M. Rutor disregarded the disapproval by his
superior, Provincial Prosecutor Liberato Reyes, of his resolution recommending the dismissal of Criminal
Case No. 1469-M-93. Additionally, he vigorously objected to the private prosecutor's motion to reconsider
the dismissal. Something is wrong somewhere. The attention of the Department of Justice must be called.

As stated in the beginning, the instant petition is defective in that it was initiated for the People by the
private prosecutor. The "conformity" given by the Provincial Prosecutor did not make it any less defective.
This is an opportune time to remind litigants that in cases of this nature, the Office of the Solicitor General
must be consulted and its assistance solicited. Prosecutors must not simply give conformity to privately
initiated petitions; they should also report the matter to the Office of the Solicitor General for appropriate
action.

WHEREFORE, the instant petition is GRANTED. The challenged orders of the respondent Judge of 22
December 1993 dismissing Criminal Case No. 1469-M-93 and of 1 February 1994 denying the motion for
reconsideration jointly filed by the Provincial Prosecutor and the private prosecutor are hereby SET ASIDE
for being null and void, and the trial court is hereby directed to continue with the proceedings therein
with purposeful dispatch.

Let a copy of this Decision be furnished the Secretary of the Department of Justice for him to take such
appropriate action as may be necessary against Assistant Provincial Prosecutor Edsel M. Rutor.

SO ORDERED.

Padilla, Bellosillo and Kapunan JJ., concur.

Hermosisima, Jr., J. is on leave.

EN BANC

G.R. No. 101978. April 7, 1993.

EDUARDO P. PILAPIL, petitioner,

vs.

SANDIGANBAYAN, FRANCIS E. GARCHITORENA and PEOPLE OF THE PHILIPPINES, respondents.

Ramon A. Gonzales for petitioner.

The Solicitor General for public respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; ABSENCE OF PRELIMINARY

INVESTIGATION, NOT A GROUND. — The absence of a preliminary investigation is not a ground to quash
a complaint or information under Section 3, Rule 117 of the Rules of Court.

2. ID.; ID.; PRELIMINARY INVESTIGATION; ABSENCE THEREOF DOES NOT AFFECT JURISDICTION OF
COURTS NOR IMPAIR VALIDITY OF INFORMATION. — The absence of preliminary investigation does not
affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise
render it defective, but, if there were no preliminary investigations and the defendants, before entering
their plea, invite the attention of the court to their absence, the court, instead of dismissing the
Information, should conduct such investigation, order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted . . . (Sanciangco, Jr. vs. People, G.R.
No. 72830, 149 SCRA 1 [1987] and reiterated in Doromal vs. Sandiganbayan, G.R. No. 85468, 177 SCRA
354 [1989]).

3. ID.; ID.; MOTION TO QUASH; LACK OF JURISDICTION BY THE COURT AS A GROUND, CONSTRUED.
— The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules of Court refers to
the lack of any law conferring upon the court the power to inquire into the facts, to apply the law and to
declare the punishment for an offense in a regular course of judicial proceeding. When the court has
jurisdiction, as in this case, any irregularity in the exercise of that power is not a ground for a motion to
quash.

4. ID.; JURISDICTION; ABSENCE THEREOF, NOT SUBJECT TO WAIVER. — Lack of jurisdiction is not
waivable but absence of preliminary investigation is waivable. In fact, it is frequently waived.

5. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT DENIED WHERE PETITIONER WAS
REQUIRED TO ANSWER THE CHARGES AGAINST HIM. — The facts on record show that in an order dated
October 3, 1990, Deputy Ombudsman Domingo required petitioner to answer the charges against him as
stated in the affidavits-complaints and supporting documents thereto. Petitioner fully complied with said
order and filed his and his witnesses' affidavits. In other words, petitioner was properly apprised of the
act complained of and given ample opportunity to rebut the same. Thus, petitioner could not validly raise
violation of his right to due process because the bases for the information filed by the Ombudsman were
all reflected in the complaint and the evidence supporting it.

6. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; NOTHING MORE THAN

THE SUBMISSION OF THE PARTIES' AFFIDAVITS AND COUNTER-AFFIDAVITS. — In Cinco vs. Sandiganbayan,
(G.R. Nos. 92362-67, 202 SCRA 727 [1991]) this Court held that preliminary investigation is nothing more
than the submission of the parties' respective affidavits, counter-affidavits and evidence to buttress their
separate allegations.

7. ID.; ID.; ID.; MERELY INQUISITORIAL. — Preliminary investigation is merely inquisitorial, and it is
often the only means of discovering whether a person may be reasonably charged with a crime, to enable
the prosecutor to prepare his complaint or information.

8. ID.; ID.; NATURE OF CRIMINAL CHARGES DETERMINED BY ACTUAL RECITAL OF FACTS. — The real
nature of the criminal charge is determined not from the caption or preamble of the information nor from
the specification of the provision of law alleged to have been violated, they being conclusions of law, but
by the actual recital of facts in the complaint or information. . . . it is not the technical name given by the
Fiscal appearing in the title of the information that determines the character of the crime but the facts
alleged in the body of the Information.

9. ID.; ID.; PRELIMINARY INVESTIGATION; DEEMED WAIVED BY FAILURE TO SEASONABLY INVOKED

RIGHT THERETO. — The right to a preliminary investigation is not a fundamental right and may be waived
expressly or by silence. Failure of accused to invoke his right to a preliminary investigation constituted a
waiver of such right and any irregularity that attended it. The right may be forfeited by inaction and can
no longer be invoked for the first time at the appellate level.
10. ID.; ID.; ID.; MAY BE AVAILED OF EVEN AFTER THE CASE HAS BEEN FILED. — Under the last
paragraph of Section 7, Rule 112 of 1985 Rules on Criminal Procedure, the right to ask for preliminary
investigation is recognized even after the case has already been filed.

11. ID.; ID.; PROBABLE CAUSE, DEFINED. — Probable cause has been defined in the leading case of
Buchanan vs. Vda. de Esteban (32 Phil. 365) as the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that
the person charged was guilty of the crime for which he was prosecuted. Probable cause is a reasonable
ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or
strong suspicion, that a thing is so.

12. ID.; SPECIAL CIVIL ACTION; CERTIORARI; FINDING BY THE SANDIGANBAYAN OF PROBABLE CAUSE
FOR VIOLATION OF ANTI-GRAFT AND PRACTICES ACT, NOT IN EXCESS OF JURISDICTION NOR WITH GRAVE
ABUSE OF DISCRETION. — Having found that respondent court has not acted in excess of jurisdiction nor
with grave abuse of discretion in finding the existence of probable cause in the case at bar and
consequently, in denying the motion to quash and motion for reconsideration of petitioner, We dismiss
as clearly unfounded the insinuations of petitioner that Presiding Justice Francis Garchitorena used the
influence of his office in initiating the complaint against him. We agree with respondent court that the act
of bringing to the attention of appropriate officials possible transgression of the law is as much an
obligation of the highest official of the land as it is the responsibility of any private citizen.

DECISION

NOCON, J p:

In this petition for certiorari and mandamus, petitioner seeks to annul the resolutions of respondent
Sandiganbayan in Criminal Case No. 16672, entitled "People of the Philippines vs. Eduardo P. Pilapil" dated
June 27, 1991 denying his motion to quash the information for Violation of Section 3(e) of Republic Act
No. 3019, as amended. as well as the resolution dated September 5, 1991 denying his motion for
reconsideration. Petitioner predicated his motion to quash on the ground of lack of jurisdiction over his
person because the same was filed without probable cause. In addition thereto, petitioner cites the fact
that the information for violation of the Anti-Graft Law was filed although the complaint upon which the
preliminary investigation was conducted is for malversation.

The antecedent facts of the case are as follows:

On October 16, 1987, the Philippine Charity Sweepstakes Office (PCSO) donated one ambulance (a
Mitsubishi L-300) to the Municipality of Tigaon, Camarines Sur. Petitioner, who is the Congressman of the
3rd District of Camarines Sur, received the ambulance in behalf of the municipality. However, he did not
deliver the ambulance to said municipality.

Unaware of the donation, the Sangguniang Bayan of the municipality passed a resolution (Resolution No.
16, Series of 1988) requesting PCSO for an ambulance. Said request was reiterated in their Resolution No.
117, Series of 1988. The mayor of the municipality, Eleanor P. Lelis, thereafter sought the intercession of
Sandiganbayan Presiding Justice Francis Garchitorena, who is from the said municipality, regarding said
request. Thereafter, Justice Garchitorena contacted the PCSO and learned about the ambulance
previously donated by the latter to Tigaon through petitioner. He accordingly informed Mayor Lelis that
the municipality's request cannot be favorably acted upon in view of the previous donation.

Mayor Lelis reiterated the municipality's request for an ambulance making reference to the certification
of the municipal treasurer that no vehicle from the PCSO or from anyone has been received.

Upon verification of the whereabouts of the Mitsubishi L-300 by the PCSO from the petitioner, the latter
indicated his willingness to return the ambulance. In a letter dated December 22, 1988, he requested that
said vehicle be donated instead to the Municipality of Tinambac, same province. Finally, on December 26.
1988, he personally returned the ambulance, then already painted to cover the logo of the PCSO and the
other markings thereon.

With the return of the Mitsubishi L-300 to the PCSO, the Municipality of Tigaon, through Mayor Lelis,
finally received a brand new Besta Kia Ambulance unit complete with all accessories.

On January 2, 1989, Justice Garchitorena wrote the then Chief Justice Marcelo B. Fernan relating to him
the whole story of the ambulance.

On January 25, 1989, Justice Garchitorena also sent Deputy Ombudsman Jose C. Colayco a letter-
complaint against petitioner regarding said ambulance. Said letter-complaint was referred by
Ombudsman Conrado M. Vasquez to the Deputy Ombudsman for Luzon, Manuel C. Domingo, for
appropriate action. Thereupon, Deputy Ombudsman Domingo required Justice Garchitorena to submit all
relevant records and documents, as well as his affidavit and those of his witnesses. Failing in this regard,
Justice Garchitorena was requested anew to comply. In his stead, Anthony D. Jamora, the Regional
manager of the Special Projects Department of the PCSO and Mayor Lelis of Tigaon, Camarines Sur,
submitted their respective affidavits.
On October 3, 1990, Deputy Ombudsman Domingo issued an order requiring petitioner to submit his
counter-affidavit, affidavits of his witnesses and other controverting evidence. This order was captioned
as Case No. OMB-1-89-0168 for "Malversation of Public Property under Article 217 of the Revised Penal
Code."

On October 22, 1990, petitioner submitted his counter-affidavit denying the imputation of said offense
claiming that the vehicle was not equipped with any medical attachments or facilities so he was
constrained to request PAGCOR for assistance to finance its conversion into a medical ambulance which
is evidenced by his letter dated November 15, 1987 to Mrs. Alice Reyes. He claimed that it was only on
April 28, 1988 that PAGCOR acted on his request, but in lieu of financial assistance, said office donated
accessories, which can be installed at an estimated cost of P5,000.00. Thus, he allegedly made personal
representations with PAGCOR for the latter to shoulder the expenses of the installation. While awaiting
for the financial assistance, petitioner claimed, in explanation why the logo of PCSO and the other
markings on the vehicle were removed, that he acceded to the suggestion of his staff to include the name
of PAGCOR on the sides of the ambulance in view of the substantial contribution of the latter.

On December 5, 1990, Ombudsman Investigator Isaac D. Tolentino issued a resolution finding no probable
cause for malversation and recommended that the case be dismissed, which recommendation was
approved by Deputy Ombudsman Domingo.

On January 5, 1991, Assistant Ombudsman Abelardo Aportadera, Jr. recommended the disapproval of the
aforesaid resolution and instead, suggested the filing of criminal information for violation of Article 217
of the Revised Penal Code. This was followed by another resolution to the same effect by Special
Prosecution Officer Wilfredo Orencia dated February 14, 1991.

On April 1, 1991, Ombudsman Conrado Vasquez issued a resolution sustaining the finding of Ombudsman
Investigator Tolentino that there is no malversation but found in the same resolution, a prima facie case
for violation of Section 3(e) of Republic Act No. 3019, the dispositive part of which states:

"WHEREFORE, it is hereby directed that the information to be filed against the respondent should be for
a violation of Section 3(e) of R.A. 3019." 1

On April 3, 1991, an information for violation of Section 3(e) of Republic Act No. 3019, docketed as
Criminal Case No. 16672, against petitioner was filed, to wit:
"The undersigned Special Prosecution Officer III accuses EDUARDO P. PILAPIL of the crime for 'Violation
of Section 3(e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:

'That on or about October 16, 1987 and subsequent thereto, in the Municipality of Tigaon, Province of
Camarines Sur and within the jurisdiction of this Honorable Court, the accused is a public officer, he being
the Congressman of the Third Congressional District of Camarines Sur, while in the discharge of his official
functions and taking advantage of his public position, acted with manifest partiality and evident bad faith,
did then and there willfully cause undue injury to the Municipality of Tigaon, Camarines Sur, when he
failed to deliver the ambulance, Mitsubishi Van L-300, received by him on behalf of the said municipality
in a Deed of Donation executed by the Philippine Charity Sweepstakes Office in its favor, to the prejudice
and damage of the said municipal government.

CONTRARY TO LAW." 2

On April 12, 1991, a warrant of arrest was issued against petitioner. On April 18, 1991, he was allowed to
deposit the sum of P15,000.00 in court to be considered as bail bond and the warrant of arrest was
recalled.

On May 2, 1991, petitioner filed a motion to quash on the ground that respondent Sandiganbayan has no
jurisdiction over his person because the information was filed without probable cause since there is
absolutely no proof adduced in the preliminary investigation of any of the elements of the crime defined
in Section 3(e) of Republic Act No. 3019. On June 27, 1991, respondent court denied the said motion to
quash holding that the factual and legal issues and/or questions raised are evidentiary in nature and are
matters of defense, the validity of which can be best passed upon after a full-blown trial on the merits.
On September 5, 1991, respondent court denied petitioner's motion for reconsideration of the said
resolution and set the arraignment of petitioner on October 21, 1991 at 8:30 a.m.

On October 12, 1991, petitioner filed the present petition and by reason of such filing, respondent court
ordered that the arraignment be held in abeyance.

Petitioner enumerates the following as his reasons for filing the petition:

"I. THAT RESPONDENT COURT IS ACTING WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN DENYING THE MOTION TO QUASH.
II. THAT RESPONDENT COURT IS NEGLECTING A LEGAL DUTY IN NOT QUASHING THE INFORMATION
OR DISMISSING THE CASE.

III. THAT PETITIONER HAS NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE
OF LAW EXCEPT THE PRESENT PETITION." 3

Stated otherwise, the issue in this case is whether or not the Sandiganbayan committed grave abuse of
discretion in denying petitioner's motion to quash and motion for reconsideration.

Petitioner harps on the lack of preliminary investigation on the specific charge of violation of Sec. 3(e),
Republic Act No. 3019, as amended, filed before the Sandiganbayan. He alleges that the preliminary
investigation was conducted for the charge of malversation.

At the outset, this Court bears mention of the rudimentary rule that the absence of a preliminary
investigation is not a ground to quash a complaint or information under Section 3, Rule 117 of the Rules
of Court. The proper procedure in case of lack of preliminary investigation is to hold in abeyance the
proceedings upon such information and the case remanded to the Office of the Provincial Fiscal or the
Ombudsman, for that matter, for him or the Special Prosecutor to conduct a preliminary investigation. 4
Thus, We enunciated in Sanciangco, Jr. vs. People, 5 and reiterated in Doromal vs. Sandiganbayan, 6 that:

"The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do
they impair the validity of the information or otherwise render it defective, but, if there were no
preliminary investigations and the defendants, before entering their plea, invite the attention of the court
to their absence, the court, instead of dismissing the Information, should conduct such investigation,
order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation
may be conducted . . ."

Petitioner takes exception to the doctrine and urges this Court to take a second look arguing that lack of
preliminary investigation affects the court's jurisdiction because it is violative of due process. He reasons
out that jurisprudence abounds with the rule that denial of due process is grave jurisdictional defeat
rendering the judgment void.

We are not persuaded. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules
of Court refers to the lack of any law conferring upon the court the power to inquire into the facts, to
apply the law and to declare the punishment for an offense in a regular course of judicial proceeding.
When the court has jurisdiction, as in this case, any irregularity in the exercise of that power is not a
ground for a motion to quash. Reason is not wanting for this view. Lack of jurisdiction is not waivable but
absence of preliminary investigation is waivable. In fact, it is frequently waived.

We now come to the question of whether there was no preliminary investigation conducted in this case
necessitating the suspension of the proceedings in the case until after the outcome of such preliminary
investigation.

The facts on record show that in an order dated October 3, 1990, Deputy Ombudsman Domingo required
petitioner to answer the charges against him as stated in the affidavits-complaints and supporting
documents thereto. Petitioner fully complied with said order and filed his and his witnesses' affidavits. In
other words, petitioner was properly apprised of the act complained of and given ample opportunity to
rebut the same. Thus, petitioner could not validly raise violation of his right to due process because the
bases for the information filed by the Ombudsman were all reflected in the complaint and the evidence
supporting it. In Cinco vs. Sandiganbayan, 7 this Court held that preliminary investigation is nothing more
than the submission of the parties' respective affidavits, counter-affidavits and evidence to buttress their
separate allegations.

Petitioner attaches significance to the fact that the preliminary investigation conducted by the
Ombudsman against him was under the title of "malversation." According to him, this is not sufficient to
justify the filing of the charge of violation of Anti-Graft and Corrupt Practices Law.

Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the
only means of discovering whether a person may be reasonably charged with a crime, to enable the
prosecutor to prepare his complaint or information. The preliminary designation of the offense in the
directive to file a counter-affidavit and affidavits of one's witnesses is not conclusive. Such designation is
only a conclusion of law of Deputy Ombudsman Domingo. The Ombudsman is not bound by the said
qualification of the crime. Rather, he is guided by the evidence presented in the course of a preliminary
investigation and on the basis of which, he may formulate and designate the offense and direct the filing
of the corresponding information. In fact, even, the designation of the offense by the prosecutor in the
information itself has been held inconclusive, to wit:

". . . the real nature of the criminal charge is determined not from the caption or preamble of the
information nor from the specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the complaint or information . . . it is not the
technical name given by the Fiscal appearing in the title of the information that determines the character
of the crime but the facts alleged in the body of the Information." 8
Petitioner cites the case of Luciano vs. Mariano, 9 in support of its view that a new preliminary
investigation is needed. In said case, however, the original charge for falsification was dismissed for being
without any factual or legal basis and the category of the offense was raised as the alleged violation of
the Anti-Graft Law was a graver charge. In the case at bar, there is no dismissal to speak of because under
the rules of procedure of the office of the Ombudsman, a complaint may be dismissed only upon the
written authority or approval of the Ombudsman. Besides, even the petitioner admits that the violation
of the Anti-Graft law did not raise the category of the offense of malversation.

The case of Doromal vs. Sandiganbayan, 10 also cited by petitioner as another authority, is likewise
inapplicable as in said case, the information was annulled as the then incumbent Tanodbayan was without
authority to conduct preliminary investigations and to direct the filing of criminal cases with the
Sandiganbayan, except upon orders of the Ombudsman. With the annulment of the information, this
Court held that a new preliminary investigation of the charge was in order not only because the first was
a nullity but also because the accused demands it as his right. In the case at bar, there is no old or new
information. Only one information was filed as a result of the preliminary investigation conducted by the
office of the Ombudsman.

Even on the assumption that no preliminary investigation was conducted for the information filed,
petitioner waived his right thereto for failure to ask the Sandiganbayan or the Ombudsman for a new
preliminary investigation. On this score again, petitioner's case is different from the Luciano and Doromal
cases where the attention of the lower court was called to the lack of a new preliminary investigation.
Petitioner bewailed the absence of a new preliminary investigation only before this Court. It is noteworthy
that his only basis for quashing the information is the alleged lack of jurisdiction of the court over his
person because there is no probable cause for the filing of the information.

It is well-settled that the right to a preliminary investigation is not a fundamental right and may be waived
expressly or by silence. 11 Failure of accused to invoke his right to a preliminary investigation constituted
a waiver of such right and any irregularity that attended it. 12 The right may be forfeited by inaction and
can no longer be invoked for the first time at the appellate level. 13

Petitioner's argument that he could not have asked for a new preliminary investigation in the Office of
the Ombudsman since he came to know about the charge only after the information was filed in the
Sandiganbayan, is not tenable. Under the last paragraph of Section 7, Rule 112 of 1985 Rules on Criminal
Procedure, the right to ask for preliminary investigation is recognized even after the case has already been
filed, to wit:

"If the case has been filed in court without a preliminary Investigation having been first conducted, the
accused may within five (5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence to his favor in the manner prescribed in
this Rule."

Clearly, the alleged lack of a valid preliminary investigation came only as an afterthought to gain a reversal
of the denial of the motion to quash. Sad to say, this last ditch effort came a bit late. His failure to invoke
this right below constituted a waiver of such right.

As aforesaid, what was submitted for consideration below was the motion to quash of petitioner on the
ground of want of jurisdiction by the trial court over his person because of the filing of an information
without probable cause. There being no probable cause, according to petitioner, then there could be no
basis to issue a warrant of arrest and hence, the respondent court had no jurisdiction over his person.

Contesting the findings of respondent court that probable cause exists in this case, petitioner insists that
there is no competent proof that all the elements of Section 3(e) of the Anti-Graft law are present, namely:
that an act was done (1) causing undue injury to the government, (2) with manifest partiality or evident
bad faith, and (3) by a public officer in the discharge of his official duties.

Petitioner argues that the injury contemplated under the law is real or actual damage and since there is
absolutely no proof of real or actual damages suffered by the municipality, the finding of undue injury by
the Ombudsman has no factual basis. Concomitantly, he says that since there is no undue injury, then,
there can be no bad faith, as bad faith is inseparable from undue injury for undue injury must be through
bad faith. He claims that failure to inform the mayor of the donation, that he returned the vehicle after
one year; that he kept the vehicle in storage; and that he caused the repainting to erase the words PCSO
are not evidence of bad faith since they cannot manifest a deliberate intent to do wrong or cause damage.

Finally, petitioner claims that the element of "public office in the discharge of official duties" is also absent
as his acceptance of the vehicle in question from PCSO and its non-delivery to the municipality of Tigaon
was not done in the discharge of his duty as a congressman tasked with enacting laws. If at all, he admits,
the act was done in his private capacity as political leader in his district.

We agree with respondent court that the presence or absence of the elements of the crime are evidentiary
in nature and are matters of defense, the truth of which can best be passed upon after a full-blown trial
on the merits.

Probable cause has been defined in the leading case of Buchanan vs. Vda. de Esteban 14 as the existence
of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted.

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a
state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to
believe, or entertain an honest or strong suspicion, that a thing is so" 15 The term does not mean "actual
and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution
in support of the charge.

Whether an act was done causing undue injury to the government and whether the same was done with
manifest partiality or evident bad faith can only be made out by proper and sufficient testimony.
Necessarily, a conclusion can be arrived at when the case has already proceeded on sufficient proof.

At the moment, in passing on a motion to set aside an information on the ground that the accused has
been charged without probable cause, the court should not be guided by the rule that accused must be
shown to be guilty beyond a reasonable doubt, but rather whether there is sufficient evidence which
inclines the mind to believe, without necessarily leaving room for doubt, that accused is guilty thereof.

Having thus found that respondent court has not acted in excess of jurisdiction nor with grave abuse of
discretion in finding the existence of probable cause in the case at bar and consequently, in denying the
motion to quash and motion for reconsideration of petitioner, We dismiss as clearly unfounded the
insinuations of petitioner that Presiding Justice Francis Garchitorena used the influence of his office in
initiating the complaint against him. We agree with respondent court that the act of bringing to the
attention of appropriate officials possible transgression of the law is as much an obligation of the highest
official of the land as it is the responsibility of any private citizen.

WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Campos, Jr. and Quiason, JJ., concur.
FIRST DIVISION

G.R. No. 78606 September 26, 1988

GELACIO V. SAMULDE, in his official capacity as Municipal Judge, petitioner,

vs.

RAMON M. SALVANI, Jr., in his official capacity as Provincial fiscal of Antique, substituted by LEOPOLDO
O. VILLAVERT, respondent.

GRIÑO-AQUINO, J.:

This case involves a disagreement between an investigating judge and the provincial fiscal on whether it
is mandatory for the former to issue a warrant for the arrest of the accused in view of his finding, after
conducting a preliminary investigation, that there exists prima facie evidence that the accused committed
the crime charged.

Municipal Judge Gelacio Samulde of Patnoñgon, Antique, conducted a preliminary investigation of Pelayo
Arangale upon a complaint for robbery filed on October 29, 1985 by Maria Magbanua, alleging that
Arangale harvested palay from a portion of her land directly adjoining Arangale's land (Crim. Case No.
2046-B, entitled "People of the Philippines vs. Pelayo Arangale").

After making a preliminary investigation based on the affidavits of the complainant and her witnesses and
counter-affidavits of the respondent and his witnesses, as provided in Section 3, Rule 112 of the 1985
Rules on Criminal Procedure, Judge Samulde transmitted the records of the case to Provincial Fiscal
Ramon Salvani with his finding that "there is prima facie evidence of robbery as charge in the complaint"
(Annex A of Answer).

The fiscal returned the records to Judge Samulde on the ground that the transmittal of the records to his
office was "premature" because Judge Samulde failed to include the warrant of arrest against the accused
as provided in Section 5, Rule 112 of the 1985 Rules on Criminal Procedure.

Judge Samulde sent back the records to Fiscal Salvani. He pointed out that under Section 6, Rule 112, he
may issue a warrant of arrest if he is satisfied "that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice, " implying
thereby that, although he found that a probable cause existed, he did not believe that Arangale should be
immediately placed under custody so as not to frustrate the ends of justice. Hence, he refused to issue a
warrant of arrest.

On October 9, 1986, a special civil action of mandamus was filed in the Regional Trial Court of Antique by
Provincial Fiscal Salvani against Judge Samulde to compel the latter to issue a warrant for the arrest of
Arangale.

During the pendency of the case in the lower court, Fiscal Salvani was replaced by Fiscal Leopoldo Villavert
as provincial fiscal of Antique. Believing that the procedural question involved is important, Fiscal Villavert
manifested to the Court that there is need to continue the case begun by his predecessor.

On February 12, 1987, the Regional Trial Judge Pedro Icamina dismissed the petition for mandamus on
the ground that "the petitioner had not shown that he has a clear, legal right to the performance of the
act to be required of respondent and that the latter had an imperative duty to perform (it)," citing this
Court's decision in Felix Morada vs. Hon. Hermogenes Caluag, 5 SCRA 1128. Nevertheless, he ordered
Judge Samulde to issue a warrant for the arrest of Arangale in Crim. Case No. 2046-B in view of his (Judge
Samulde's) resolution dated May 22, 1986, and to transmit the warrant, if the arrest is by virtue of a
warrant, to the Provincial Fiscal for appropriate action in accordance with the provisions of Section 5, Rule
112 of the 1985 Rules on Criminal Procedure. He further advised the Municipal Judge "that henceforth he
adheres to the same rule in similar cases where he conducts a preliminary investigation with a finding of
a prima facie or probable cause." (pp. 23-32, Records.)

Unconvinced, Judge Samulde appealed to this Court. The issue posed by this case necessitates an
examination of the history and development of the rule on preliminary investigation. Section 13 of
General Orders No. 58 dated April 23, 1900 of the U.S. Military Governor in the Philippines was the original
source of the rule on preliminary investigation. It provided —

SEC. 13. When a complaint or information alleging the commission of a crime is laid before a magistrate,
he must examine, on oath, the informant or prosecutor and the witnesses produced, and take their
depositions in writing, causing them to be subscribed by the parties making them. If the magistrate be
satisfied from the investigation that the crime complained of has been committed, and that there is
reasonable ground to believe that the party charged has committed it, he must issue an order for his
arrest. If the offense be bailable, and the defendant offers a sufficient security, he shall be admitted to
bail; otherwise he shall be committed to prison. (General Orders & Circulars, issued by the Office of U.S.
Military Governor in the Philippine Islands, 1900, p. 3, Emphasis supplied.)
It was amended by Act 194 of the Public Laws enacted by the Philippine Commission with Amendments
indicated, Vol. I, p. 527, which authorized every justice of the peace to conduct such investigation and
order the arrest of the accused if he believed the complaint to be well founded.

SEC. 1. Every justice of the peace in the Philippine Islands is hereby invested with authority to make
preliminary investigation of any crime alleged to have been committed within his municipality, jurisdiction
to hear and determine which is by law now vested in the judges of Courts of First Instance. It shall be the
duty of every justice of the peace, when written complaint under oath has been made to him that a crime
has been committed within his municipality and there is reason to believe that any person has committed
the same, which complaint the justice believes to be well founded, or when he has knowledge of facts
tending to show the commission of a crime within his municipality by any person, to issue an order for
the arrest of the accused and have him brought before the justice of the peace for such preliminary
examination. (Emphasis supplied.)

The rule was substantially unchanged under Rule 108 of the Rules of Court except that municipal judges
and city fiscals were also authorized to conduct the preliminary investigation of offenses committed
within their municipality or city cognizable by the Court of First Instance.

Under Rule 112 of the 1964 Rules of Court, the provincial fiscal was added to the enumeration of persons
authorized to conduct a preliminary investigation.

In the 1985 Rules on Criminal Procedure, Section 2, Rule 112, the list grew even longer to include: (a)
provincial or city fiscals and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit
Trial Courts; (c) National and Regional state prosecutors; and (d) other officers authorized by law. *

Both the 1940 and 1964 Rules of Court provided for two (2) stages of the preliminary investigation, to wit:
(1) the "previous inquiry or examination" of the complainant and his witnesses to determine whether a
warrant of arrest should issue against the defendant, and (2) the preliminary investigation proper of the
defendant himself to determine if he should be held for trial. Thus, the preliminary investigation was
defined as:

... a previous inquiry or examination made before the arrest of the defendant by the judge . . . for the
purpose of determining whether there is a reasonable ground to believe that an offense has been
committed and the defendant is probably guilty thereof, so as to issue a warrant of arrest and to hold him
for trial. (Sec. 1, Rule 108, 1940 Rules of Court. Emphasis supplied.)
In Section 1, Rule 112 of the 1964 Rules of Court, the distinction between a preliminary examination and
preliminary investigation was more clearly defined by using the term "preliminary examination" in Section
I of the Rule to differentiate the first stage of the preliminary investigation (where only the testimonies of
the complainant and his witnesses were taken), from the second stage where, after the arrest of the
defendant, he was informed of the complaint against him and given a chance to testify and present his
evidence (Sec. 10, Rule 112, 1964 Rules of Court). The purpose of the preliminary examination was still to
determine "whether there is a reasonable ground to believe that an offense has been committed and the
accused is probably guilty thereof, so that a warrant of arrest may be issued and the accused held for trial.
" (Sec. 1, Rule 112, 1964 Revised Rules of Court.)

In both the 1940 and 1964 Rules of Court, it was mandatory upon the investigating judge to issue a warrant
for the arrest of the accused, if he was satisfied that the offense charged was committed and that the
accused probably committed it. Accordingly, Section 7, Rule 108 of the 1940 Rules of Court provided:

SEC. 7. Warrant of arrest, when issued. — If the judge be satisfied from the preliminary investigation
conducted by him that the offense complained of has been committed and that there is reasonable
ground to believe that the defendant has committed it, he must issue a warrant or order for his arrest.
(Emphasis ours.)

Section 6, Rule 112 of the 1964 Rules of Court similary provided:

SEC. 6. Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination
conducted by him or by the investigating officer that the offense complained of has been committed and
that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or
order for his arrest. (Emphasis supplied.)

Because the arrest of the accused was mandatory, the records to be transmitted by the investigating judge
to the clerk of the Court of First Instance upon the conclusion of the preliminary investigation, included
the warrant of arrest (Sec. 13, Rule 108,1940 Rules of Court; Sec. 12, Rule 112,1964 Revised Rules of
Court).

However, the rule on preliminary investigation underwent some modifications in the 1985 Rules on
Criminal Procedure, which is the applicable rule in this case. Under Section 1 of the present rule, the
definition of the purpose of a preliminary investigation, does not contemplate the issuance of a warrant
of arrest by the investigating judge or officer:
SECTION 1. Definition. — Preliminary investigation is an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded 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.

The mandatory provision that the investigating judge "must issue a warrant of arrest" if he finds probable
cause that the respondent committed the crime charged, found in all previous rules of criminal procedure,
from General Orders No. 58 down to Rule 112 of the 1964 Revised Rules of Court, is absent in Section 1
of the 1985 Rules on Criminal Procedure.

Another significant change is that under the 1985 Rules on Criminal Procedure there is only one (1) way
of conducting a preliminary investigation, and that is by affidavits and counter-affidavits submitted by the
parties to the investigating judge under Section 3, Rule 112. On the basis of the affidavits, the investigating
judge shall "determine whether or not there is sufficient ground to hold the respondent for trial' (subpar.
f ). Gone is the requirement in the 1940 and 1964 Rules of Court that "he must issue a warrant or order"
for the arrest of the defendant.

To determine whether a warrant of arrest should issue against the accused, the investigating judge must
examine the complainant and his witnesses "in writing and under oath ... in the form of searching
questions and answers." When he is "satisfied that a probable cause exists, and that there is a necessity
of placing the respondent under immediate custody in order not to frustrate the ends of justice," he may
issue the warrant as provided in Section 6, par. b, of the 1985 Rules on Criminal Procedure.

SEC. 6 When warrant of arrest may issue. —

(a) By the Regional Court.....

(b) By the Municipal Trial Court. -If the municipal trial judge conducting the preliminary investigation
is satisfied after an examination in writing and under oath of the complainant and his witnesses in the
form of searching questions and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice, he shall
issue a warrant of arrest.

As correctly argued by the petitioner Judge Samulde, three (3) conditions must concur for the issuance of
the warrant of arrest. The investigating judge must:
(a) have examined in writing and under oath the complainant and his witnesses by searching
questions and answers;

(b) be satisfied that a probable cause exists; and

(c) that there is a need to place the respondent under immediatecustody in order not to frustrate
the ends of justice.

It is an entirely new rule, and it is plain to see that it is not obligatory, but merely discretionary, upon the
investigating judge to issue a warrant for the arrest of the accused, even after having personally examined
the complainant and his witnesses in the form of searching questions and answers, for the determination
of whether a probable cause exists and whether it is necessary to arrest the accused in order not to
frustrate the ends of justice, is left to his sound judgment or discretion.

In this particular case, since the robbery charge was the offshoot of a boundary dispute between two
property owners, the investigating judge did not believe there was any danger of the accused absconding
before the filing of the information against him by the fiscal, hence, he found no need to place him under
immediate custody.

The provincial fiscal anchored his action for mandamus on Section 5, Rule 112 of the 1985 Rules on Canal
Procedure which provides that upon the termination of the preliminary investigation, the investigating
judge should transmit to the provincial fiscal (instead of the clerk of Court of the CFI as provided in the
1940 and 1964 Rules of Court) the warrant of arrest and other records of the preliminary investigation.
From that he deduced that the investigating judge must issue a warrant for the arrest of the accused upon
the conclusion of the preliminary investigation. That inference is not correct. The provision of Section 5,
Rule 112 simply means that the warrant of arrest, if one was issued, shall be transmitted to the fiscal with
the records of the preliminary investigation. If the investigating judge, in the exercise of his sound
discretion, decides not to issue a warrant of arrest, then none need be transmitted to the fiscal, and he
may not be compelled by mandamus to issue it (Vda. de Crisologo vs. Court of Appeals, 137 SCRA 231; Pio
vs. Marcos, 56 SCRA 725; PAL Employees Assn. vs. PAL, Inc., III SCRA 215). The fiscal's speedy and adequate
remedy, if he believes that the accused should be immediately placed under custody so as not to frustrate
the ends of justice, is not to file a mandamus action (which may take two years or more to finally resolve,
as happened in this case), but as sensibly indicated by the petitioner, to immediately file the information
so that the Regional Trial Court may issue a warrant for the arrest of the accused (Sec. 6, par. a, Rule
112,1985 Rules on Criminal Procedure).

WHEREFORE, the appealed decision in Civil Case No. 2145 is set aside. No costs.
SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea JJ., concur.

RULE 113

FIRST DIVISION

G.R. No. 89139 August 2, 1990

ROMEO POSADAS y ZAMORA, petitioner,

vs.

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

Rudy G. Agravate for petitioner.

GANCAYCO, J.:

The validity of a warrantless search on the person of petitioner is put into issue in this case.

On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar,
both members of the Integrated National Police (INP) of the Davao Metrodiscom assigned with the
Intelligence Task Force, were conducting a surveillance along Magallanes Street, Davao City. While they
were within the premises of the Rizal Memorial Colleges they spotted petitioner carrying a "buri" bag and
they noticed him to be acting suspiciously.

They approached the petitioner and identified themselves as members of the INP. Petitioner attempted
to flee but his attempt to get away was thwarted by the two notwithstanding his resistance.

They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson
revolver with Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber gun 2 a smoke (tear
gas) grenade,3 and two (2) live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the
police station for further investigation. In the course of the same, the petitioner was asked to show the
necessary license or authority to possess firearms and ammunitions found in his possession but he failed
to do so. He was then taken to the Davao Metrodiscom office and the prohibited articles recovered from
him were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal possession of
firearms and ammunitions in the Regional Trial Court of Davao City wherein after a plea of not guilty and
trial on the merits a decision was rendered on October 8, 1987 finding petitioner guilty of the offense
charged as follows:

WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty beyond reasonable doubt of
the offense charged.

It appearing that the accuse d was below eighteen (18) years old at the time of the commission of the
offense (Art. 68, par. 2), he is hereby sentenced to an indeterminate penalty ranging from TEN (10) YEARS
and ONE (1) DAY of prision mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11) days of Reclusion
Temporal, and to pay the costs.

The firearm, ammunitions and smoke grenade are forfeited in favor of the government and the Branch
Clerk of Court is hereby directed to turn over said items to the Chief, Davao Metrodiscom, Davao City. 5

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due course
a decision was rendered on February 23, 1989 affirming in toto the appealed decision with costs against
the petitioner. 6

Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or
search and seizure, the items which were confiscated from the possession of the petitioner are
inadmissible in evidence against him.

The Solicitor General, in justifying the warrantless search of the buri bag then carried by the petitioner,
argues that under Section 12, Rule 136 of the Rules of Court a person lawfully arrested may be searched
for dangerous weapons or anything used as proof of a commission of an offense without a search warrant.
It is further alleged that the arrest without a warrant of the petitioner was lawful under the circumstances.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:

SEC. 5. Arrest without warrant; when lawful — A peace officer or a private person may, without a warrant,
arrest a person:
(a) When in his presence, the person to be arrested has committed is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7. (6a, 17a)

From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a peace
officer or private person, among others, when in his presence the person to be arrested has committed,
is actually committing, or is attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the person arrested has committed
it.

The Solicitor General argues that when the two policemen approached the petitioner, he was actually
committing or had just committed the offense of illegal possession of firearms and ammunitions in the
presence of the police officers and consequently the search and seizure of the contraband was incidental
to the lawful arrest in accordance with Section 12, Rule 126 of the 1985 Rules on Criminal Procedure. We
disagree.

At the time the peace officers in this case identified themselves and apprehended the petitioner as he
attempted to flee they did not know that he had committed, or was actually committing the offense of
illegal possession of firearms and ammunitions. They just suspected that he was hiding something in the
buri bag. They did now know what its contents were. The said circumstances did not justify an arrest
without a warrant.

However, there are many instances where a warrant and seizure can be effected without necessarily being
preceded by an arrest, foremost of which is the "stop and search" without a search warrant at military or
police checkpoints, the constitutionality or validity of which has been upheld by this Court in Valmonte
vs. de Villa, 7 as follows:
Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a
search warrant by the military manning the checkpoints, without more, i.e., without stating the details of
the incidents which amount to a violation of his light against unlawful search and seizure, is not sufficient
to enable the Court to determine whether there was a violation of Valmonte's right against unlawful
search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not
forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved
according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the
public fair grounds, or simply looks into a vehicle or flashes a light therein, these do not constitute
unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also
be regarded as measures to thwart plots to destabilize the government in the interest of public security.
In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities of police and military men by
NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought
about by deteriorating economic conditions — which all sum up to what one can rightly consider, at the
very least, as abnormal times. Between the inherent right of the state to protect its existence and promote
public welfare and an individual's right against a warrantless search which is however reasonably
conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform in the same
manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience,
discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful
community. (Emphasis supplied).

Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the
search thereat in the case at bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of a probable cause. The probable cause
is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a
probable cause that he was concealing something illegal in the bag and it was the right and duty of the
police officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the possession of the petitioner
only after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be
useless, futile and much too late.

In People vs. CFI of Rizal, 8 this Court held as follows:

. . . In the ordinary cases where warrant is indispensably necessary, the mechanics prescribed by the
Constitution and reiterated in the Rules of Court must be followed and satisfied. But We need not argue
that there are exceptions. Thus in the extraordinary events where warrant is not necessary to effect a
valid search or seizure, or when the latter cannot be performed except without warrant, what constitutes
a reasonable or unreasonable search or seizure becomes purely a judicial question, determinable from
the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence
or absence of probable cause, the manner in which the search and seizure was made, the place or thing
searched and the character of the articles procured.

The Court reproduces with approval the following disquisition of the Solicitor General:

The assailed search and seizure may still be justified as akin to a "stop and frisk" situation whose object is
either to determine the identity of a suspicious individual or to maintain the status quo momentarily while
the police officer seeks to obtain more information. This is illustrated in the case of Terry vs. Ohio, 392
U.S. 1 (1968). In this case, two men repeatedly walked past a store window and returned to a spot where
they apparently conferred with a third man. This aroused the suspicion of a police officer. To the
experienced officer, the behaviour of the men indicated that they were sizing up the store for an armed
robbery. When the police officer approached the men and asked them for their names, they mumbled a
reply. Whereupon, the officer grabbed one of them, spun him around and frisked him. Finding a concealed
weapon in one, he did the same to the other two and found another weapon. In the prosecution for the
offense of carrying a concealed weapon, the defense of illegal search and seizure was put up. The United
States Supreme Court held that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for the purpose of investigating possible criminal behaviour even though there
is no probable cause to make an arrest." In such a situation, it is reasonable for an officer rather than
simply to shrug his shoulder and allow a crime to occur, to stop a suspicious individual briefly in order to
determine his identity or maintain the status quo while obtaining more information. . . .

Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and
hence, the constitutional guarantee against unreasonable searches and seizures has not been violated. 9

WHEREFORE, the petition is DENIED with costs against petitioner.

SO ORDERED.

Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.

SECOND DIVISION

G.R. No. 100910 July 25, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

LORETO SALANGGA and LAURETO LOPEZ, accused.

LORETO SALANGGA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellants.

REGALADO, J.:

Accused-appellant Loreto Salangga, alias "Dodong," and Laureto Lopez, alias "Retoy," were haled to court
as conspirators in the rape and killing of a fifteen-year old barrio lass named Imelda Talaboc, allegedly
committed in Magsaysay, Davao del Norte on or about July 18, 1987.1

Assisted by counsel de oficio, both accused pleaded not guilty during their arraignment. After trial,
judgment was rendered by said trial court on February 21, 1991 finding appellant Salangga guilty of
attempted rape with homicide, imposing upon him the penalty of reclusion perpetua but with full credit
for his preventive imprisonment, and ordering him to pay P30,000.00 as indemnity to the heirs of the
victim. Accused Laureto Lopez was acquitted for failure of the prosecution to prove his guilty beyond
reasonable doubt.2
It appears that in the late afternoon of July 18, 1987, in Sitio Ogsing, Barangay Tacul, Magsaysay, Davao
del Sur, Imelda Talaboc was sent by her mother to fetch water from the spring, or "bugac," the only source
of water in the vicinity. Imelda left with two one-gallon containers.

At around 5:30 to 6:30 of the same afternoon, when the dusk of twilight was enveloping the area, one
Ricky Monterde, a friend and brother in faith of the Talaboc family, who resided only two hundred meters
away from the latter's residence, likewise went to fetch water. On his way, he saw appellant Salangga
walking about three meters ahead of Imelda. He noticed that appellant kept glancing back towards Imelda
who was carrying water containers. Trailing the girl was accused Lopez who was walking behind her at a
distance of about twenty fathoms. 3

On the same occasion, Lenie Alingay, a twelve-year old elementary student residing at Sitio Ogsing, was
on her way home from her grandfather's house. She recounted that she met Imelda at the downhill
crossing leading towards the barrio. Lenie explained that she was about four meters away from Imelda,
while the latter was following appellant and walking about two meters behind him. As Imelda came
abreast with Lenie, the former asked the latter if she was going to school on Monday. Then, as Lenie
proceeded on her way home, she saw that Lopez who was sitting on a rice paddy suddenly stood up and
followed Imelda. At about the same time, Lenie also saw Ricky Monterde fetching water from the spring.

When Bernardo Talaboc, father of Imelda, came home from work, he was informed by his wife that
Imelda, whom she sent to the "bugac" earlier, was missing. Talaboc set out to look for Imelda. On his way
to the spring, he came upon two water containers left standing at a spot about four hundred meters away
from their house.4

His search for Imelda led Talaboc to the house of Ricky who told him that he had earlier seen Imelda on
her way home with appellant walking ahead of her. Ricky then accompanied Talaboc and his son to the
house of the barangay captain, Severino Laput, to whom they reported Imelda's disappearance.
Thereafter, together with the members of his household and some neighbors, they continued looking for
Imelda. At around 8:00 o'clock that same night, they found the corpse of Imelda lying in the bushes about
twenty meters away from where the water containers were earlier found.

Imelda was found with her clothes on but her panty was missing. Her face was disfigured by physical
blows, she had been stabbed by a knife, and her eyes were gouged out. The searching party brought home
the body of the victim.

Talaboc went to see Lenie Alingay and her family to inquire whether they witnessed any unusual
happening that fatal afternoon, since the "bugac" is only about twenty meters away from their house.
Lenie told him about her brief encounter with Imelda, as earlier narrated.
Appellant and Lopez were arrested that same night at around 8:00 o'clock, after the corpse of Imelda had
been found, upon the orders of Barangay Captain Laput based on the information given by Ricky and Lenie
implicating the two of them. They both became the main suspects responsible for the grievous fate of
Imelda, as they were the persons last seen with her before the tragedy. The soldiers of the 46th Infantry
Brigade of the Philippine Army took them into custody.

At the army detachment, said suspects were bodily searched. According to the prosecution, the soldiers
recovered from appellant a piece of lady's underwear, later identified by Talaboc to be that of his
daughter, Imelda. Afterwards, both suspects were ordered to undress. The prosecution claims that
appellant's body bore what looked like bite marks and scratches, but none was found on the body of
Lopez.

The following morning, the suspects were brought to the office of Station Commander Manuel Macabutas
in the municipal hall where both were investigated by P/Sgt. Mario Gataber of the Magsaysay Police
Station. Appellant scrawled his quivery signature on an unsworn statement,5 handwritten by some other
person, wherein he admitted the crime charged, except that he was not able to consummate his bestial
desire because Imelda fought very hard against him.6

The defense had a different version to tell. It was claimed that on July 18, 1987, at about 9:00 P.M. while
appellant was repairing a wall in his kitchen, some members of the 46th Infantry Brigade and Lopez came
to his house. He was informed that Barangay Captain Laput was requesting for their presence at his house.
Both accused complied with the request and went to the residence of Laput. The latter asked them if they
were responsible for the death of Imelda and they vehemently denied any participation in the crime.

The accused were then brought to the 46th Infantry Brigade Headquarters where they were allegedly
subjected to severe physical beatings by the soldiers. Unable to bear the maltreatment any further, they
were compelled to admit the earlier accusations against them.

The next day, a strong and painful kick in the stomach was inflicted on appellant by one of his custodians
for refusing to carry a lady's underwear and a pair of blue slippers in his pocket, which items were later
identified by Talaboc as belonging to his daughter. Consequently, he carried the same with him when they
were brought to the Magsaysay Municipal Hall where they were investigated by Sgt. Gataber. Afterwards,
appellant was asked to sign a document, explained to him as having something to do with his food, to
which importing the unlettered appellant acceded. Unfortunately, the document turned out to be his
supposed statement admitting his guilt for attempting to rape Imelda and subsequently killing her.7
Appellant Loreto Salangga has now come before us, through counsel de oficio, contending that the trial
court erred in convicting him of the crime charged on the basis of insufficient circumstantial evidence.

Section 5, Rule 113 of the Rules of Court provides that a peace officer or a private person may, without a
warrant, arrest a person when (a) in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense; (b) an offense has in fact just been committed and he
has personal knowledge of the facts indicating that the person to be arrested has committed it; and (c)
the person to be arrested is a prisoner who has escaped. In cases falling under paragraphs (a) and (b)
thereof, the person to be arrested without a warrant shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against in accordance with Section 7, Rule 112.

From these provisions, it is not hard to conclude that appellant was arrested in violation of his
fundamental right against unjustified warrantless arrest. On the night he was arrested, he was in his house
peacefully attending to some domestic chores therein. It cannot be suggested that he was in any way
committing a crime or attempting to commit one. Also, the soldiers had no personal knowledge of the
crime he was being charged with, nor was he a fugitive from the law.

The right of the accused to be secure against any unreasonable searches on and seizure of his own body
and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows
exceptions to the requirement of a warrant of arrest is strictly construed. Its application cannot be
extended beyond the cases specifically provided by law.8

Bernardo Talaboc testified that both accused were frisked and asked to undress before him, some soldiers
of the 46th Infantry Brigade, and Barangay Captain Laput inside the Army detachment. If he is to be
believed, that body search incredibly yielded a lady's panty from the pocket of appellant and which
underwear he identified as that of his daughter. It would surely have been the height of stupidity for
appellant to be keeping on his person an incriminating piece of evidence which common sense dictates
should have been destroyed or disposed of. For that matter, according to Barangay Captain Laput before
whom appellant was brought shortly after his apprehension and who was also present therein, nothing
was taken from said appellant.9

In any event, the underwear allegedly taken from the accused is inadmissible in evidence, being a so-
called "fruit of a poisonous tree." Likewise, there is definitely an improbability in the claim of Talaboc that
he was able to recognize the underwear of his daughter. It is an a typical and abnormal situation under
Filipino customs for a father to be familiar with the underwear of his daughter. This is highly improbable,
and it is plain common sense that improbabilities must be carefully scrutinized and not readily accepted.
Again, during the initial investigation of Barangay Captain Laput on July 23, 1987 before Sgt. Gataber,
nothing was ever mentioned regarding the supposed scratches and bite marks allegedly found on the
chest of appellant. The truth is that these matters were mentioned in the trial court only after about two
and a half years from the arrest of appellant. It is indeed strange that such vital evidence conspicuously
found on the body of appellant, if true, could be omitted in the sworn statement of Laput10 which was
taken four days after the alleged discovery. He and the investigator could not have been unaware that the
supposed scratches and bite marks were obviously relevant in this kind of crime, more particularly to
prove the reported struggle of the victim against her unknown killer.

The aforesaid testimony of Laput thus suffers from serious flaws attendant to its taking which accordingly
taint its credibility. The long delay in his disclosure bolsters the suspicion that such testimony is biased, if
not fabricated. Laput's claim that he revealed the aforesaid facts to Sgt. Gataber 11 is belief by his own
sworn statement. It is true, and we was have so held, that sworn statements executed before police
officers are usually incomplete and contain data which are inconsistent with the facts narrated by the
witnesses to said officers. For this reason, courts have generally brushed aside, as inconsequential,
contradictions in the sworn statement of a witness and his testimony as long as these dwell only on minor
and reconcilable matters.12

However, the aforesaid allegations on the supposed scratches and bite marks on the body of appellant
can by no means be considered as minor or trivial matters. The prosecution, in fact, relies heavily thereon
to support its theory of the case. Since every circumstance must be taken into consideration in passing
upon the guilt or innocence of the accused, it becomes crucial for his eventual acquittal when such
discrepancies touch on substantial and irreconcilable facts, as when the omission in the sworn statement
concerns an important detail which the affiant would not have failed to mention, and which omission
could accordingly affect his credibility.13

We are not persuaded by the theory that the accused waived their right against the said unreasonable
search and seizure, simply because they did not object thereto. To constitute waiver, it must appear,
firstly, that the right exists; secondly, that the person involved had knowledge, actual or constructive, of
the existence of such right; and, lastly, that said person had an actual intention to relinquish the right.14
Courts understandably indulge every reasonable presumption against waiver of fundamental safeguards
and do not deduce acquiescence in the loss of elementary rights.15

Coming now to Sgt. Gataber's testimony, we find that the same seriously undermines the case for the
People. On the witness stand, he recited the rights of an accused but apparently none of these were
granted to or applied in his investigation of appellant. This is partly explained by the fact that he had a
wrong, if not a weird, perception or understanding regarding a "person under custodial interrogation,"
his duty to apprise such person of his rights, and the right of that person to counsel, as demonstrated
below.
Q How would you say that a person is under custodial interrogation?

A When the accused is assisted by a counsel of his own choice.

xxx xxx xxx

Q In other words, if the accused is not assisted by counsel in the investigation he is not under
custodial interrogation, is that what you mean?

A Yes.

Q In other words, (in) this particular case, you considered this investigation on accused Salangga as
not under custodial interrogation because he was not assisted by counsel?

A Yes, because that is not the proper custodial interrogation.

Q In other words, on that day that you conducted the investigation, you did not apprise him of his
rights to have counsel?

A I apprised him but there was no available lawyer in our place but I considered his statement is
true.

Q Will you please go over this statement if you can find a portion wherein you apprised the declarant
of his right to counsel?

A I did not apprise because of some circumstantial facts.

Q What are these circumstantial facts

A I did not bother to write the rights of the accused.

Q Did you not find it important . . . because this case it quite serious?

A I made that question and interrogation in my office but I was doubtful whether that would be
acceptable in Court because that question and answer was not subscribed and sworn to before the
municipal judge.

xxx xxx xxx

Q In other words, you did not tell him that the government can provide him counsel if he cannot
afford one?

A Yes.

Q You did not tell him that?

A I told him that if you cannot afford to have a counsel, the government will give you one.

Q Did you place that in your question and interview?

A No.

Q Why did you not place that in your question and interview?

A Because my question and interview which I made before him is not acceptable.

xxx xxx xxx

Q Because you thought that Salangga was under custodial interrogation of the Police Station of
Magsaysay at the time . . . why did you not require him to have counsel of his own choice as you have
attended a lot of seminars?

A That is the reason why because there is no available lawyer in our place.

Q And you are aware about Atty. Mat(i)as Acquiatan?

A Yes, but sometimes he is out of Magsaysay.

Q And despite that fact, you did not find ways and means to contact the CLAO or Atty. Acquiatan in
order to assist Salangga in the interview?

A There were several lawyers which I approached to assist the suspect but they refused and at that
time I also approached Atty. Acquiatan and he advised me to see the lawyer of CLAO.

Q But in this particular case, you never tr(ied) to approach Atty. Acquiatan to assist accused
Salangga?

A No.

Q Neither did you approach the lawyer of CLAO in that particular interview?

A No." 16

It is consequently evident that since appellant was not assisted by any counsel during his custodial
investigation, his supposed incriminatory statement is inadmissible and cannot be considered in the
adjudication of this case. Oddly enough, even Sgt. Gataber was skeptical as to the validity of the statement
he took from appellant.17 The rule, of course, is that no in-custody investigation shall be conducted unless
it be in the presence of counsel engaged by the person arrested, by any person in his behalf or appointed
by the court upon petition either of the detainee himself or by someone in his behalf.18
While the right to counsel may be waived, such waiver must be effected voluntarily, knowingly and
intelligently. Further, waiver must be with the assistance of counsel.19 The absence of counsel at that
stage makes the statement, in contemplation of law, involuntary, even if it was otherwise voluntary in a
non-technical sense.

With the Court now unanimously upholding the exclusionary rule in toto, the constitutional mandate is
given full force and effect. This constitutional edict has been proved by historical experience to be the
practical means of enforcing the constitutional injunction against unreasonable searches and seizures by
outlawing all evidence illegally seized and thereby removing the incentive part of the military and police
officers to disregard such basic rights. This is of special public importance and serves as a shield in the
remote provinces and rural areas to the people who have no access to courts for prompt and immediate
relief from violations of their rights.20

Section 5 of Rule 133 provides that when no direct evidence is available, circumstantial evidence will
suffice when the following requirements are present: (a) there are more than one circumstance, (b) the
facts from which the inferences are derived are proven, and (c) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt. Furthermore, before conviction can be had
upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads
to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the author
of the crime.21

A meticulous and closer inquiry into the records reveals that there is really but one sole circumstance
upon which the court relied in its decision, that is, that Imelda was seen trailing behind appellant by a few
meters on the path towards her house. The prosecution presented two witnesses on this very same fact
but the testimony thereon of two witnesses cannot convert one circumstance into two. All other
"circumstances" under the prosecution's theory, such as the underwear allegedly found in appellant's
pocket, the supposed scratches and bite marks on his body, and his dubious confession to Sgt. Gataber
are all products of an illegal process, aside from their questionable veracity.

Assuming arguendo that appellant was seen walking in front of Imelda about two hours before the
discovery of the death of the latter, such fact could not lead a prudent man to conclude that appellant
was the one responsible for the misfortune that befell the victim. Also, Sgt. Gataber believed that Lenie
Alingay and Ricky Monterde could shed light on the case and so he claimed to have taken their statements,
but, surprisingly, no sworn statements were executed by them. Later, he retracted what he said,
announcing instead that he actually referred the taking of the statements to Sgt. Saraum, but he could
not remember if the statements, if thereafter taken, were attached to the records.22

We reject the People's hypothesis on the alleged "confession" of appellant to a certain Pastor Juan Tapic.
The records reveal that there was a statement of appellant merely saying that he and Lopez were suspects
in the rape and death of Imelda but never did he say that they were the ones responsible for such crime.
Also, if the prosecution really believed that the appellant truly admitted to Pastor Tapic his participation
in the crime, it is puzzling that said pastor was not called by the prosecution to take the witness stand. A
party's failure to produce evidence, which if favorable would naturally have been produced, is open to
the inference that the facts were unfavorable to his case.23 Verily, that failure to present Pastor Tapic can
only mean that the prosecution itself doubted what appellant precisely meant when he said that there
are two of them, that is, himself and Lopez.

We also note that while the prosecution presented a medical certificate24 to prove the alleged rape, it
failed to present the physician to affirm it. In the absence of the doctor's testimony, the contents thereof
are hearsay.25 At any rate, even if the physician had been presented there was in fact no need for him to
make that affirmation since the conviction of appellant is based merely on his supposed inculpatory
statement which has no probative value for having been taken in violation of explicit constitutional
mandates and proscriptions.

Well-entrenched is the rule that the findings of facts of trial courts carry great weight for these courts
enjoy the advantage of having observed the demeanor of the witnesses on the witness stand and,
therefore, can discern if these witnesses are telling the truth or not. However, likewise well-settled are
the exceptions thereto, which are when (1) the conclusion is a finding based entirely on speculations, (2)
the inference made is manifestly mistaken, absurd or impossible, (3) there is a grave abuse of discretion,
and (4) the finding is based on a misapprehension of the facts.26 The evidentiary bases for the conclusions
of the lower court having been demonstrated to be either incompetent in law or incredible in fact, the
exceptive circumstances have to be given full sway.

The prosecution's evidence regrettably leaves much to be desired, unfortunately as a consequence of

faulty investigative work in the first place. This Court must, however, be guided by a rule of long standing
and consistency that if the inculpatory facts and circumstances are capable of one or more explanations,
one of which is consistent with the innocence of the accused and the other consistent with his guilt, then
the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.27

In our criminal justice system, the overriding consideration is not whether the court doubts the innocence
of the accused but whether it entertains a reasonable doubt as to his guilt. This determinant, with the
constitutional presumption of innocence which can be overthrown only by the strength of the
prosecution's own evidence proving guilt beyond reasonable doubt, irresistibly dictate an exoneration in
this case. It is indeed a bitter truth for the victim's family to face, that human justice seems to have failed
then due to the foregoing confluent factors. We deeply commiserate with them and sincerely hope that,
somehow and in God's own time, divine retribution shall be visited upon the evil author of this human
tragedy.
WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant
Loreto Salangga is hereby ACQUITTED and ordered to be immediately released unless there are other
grounds for his continued detention, with costs de oficio.

SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

SECOND DIVISION

G.R. No. L-68955 September 4, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region,
Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession
of Firearms in Furtherance of Subversion. The dispositive portion of the decision reads:

WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt,
of the offense charges , pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated
September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to
Presidential Decree No. 885, and considering that the firearm subject of this case was not used in the
circumstances as embraced in paragraph I thereof, applying the provision of indeterminate sentence law,
accused Ruben Burgos is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion
temporal maximum, as minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-
paragraph B, of Presidential Decree No. 9, as aforementioned, with accessory penalties, as provided for
by law.

As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38,
Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to
be disposed of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda
seized are ordered disposed of in accordance with law.

The information charged the defendant-appellant with the crime of illegal possession of firearm in
furtherance of subversion in an information which reads as follows:
That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines,
within the jurisdiction of this Court, the above- named accused with intent to possess and without the
necessary license, permit or authority issued by the proper government agencies, did then and there
wilfully, unlawfully and feloniously keep, possess, carry and have in his possession, control and custody
one (1) homemade revolver, caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm
was issued to and used by the accused at Tiguman, Digos, Davao del Sur, his area of operations by one
Alias Commander Pol for the New People's Army (NPA), a subversive organization organized for the
purpose of overthrowing the Government of the Republic of the Philippines through lawless and violent
means, of which the accused had knowledge, and which firearm was used by the accused in the
performance of his subversive tasks such as the recruitment of New Members to the NPA and collection
of contributions from the members.

CONTRARY TO LAW.

The evidence for the prosecution is summarized in the decision of the lower court as follows:

xxx xxx xxx

. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an
intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on
May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the authorities at about
9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited
by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life,
if he refused.

Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00)
per month, as his contribution to the NPA TSN, page 5, Hearing-October 14, 1982).

Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15)
members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was
dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at
1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through the help of Pedro
Burgos, brother of accused, the team was able to locate accused, who was plowing his field. (TSN, pages
6-7, Hearing-October 14, 1982).

Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused about his
firearm, as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon
question profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place
below their house where a gun was buried in the ground. (TSN, page 8, Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered
the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he
allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house. Then Sgt.
Taroy accordingly verified beneath said cogon grass and likewise recovered documents consisting of
notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of
eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista
ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December 31,
1980, marked as Exhibit "C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang
Mindanao, March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit "D" for the
prosecution.

Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same as
issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the
sparrow unit of New People's Army, responsible in the liquidation of target personalities, opposed to NPA
Ideological movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda
Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who
declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur, accused Ruben
Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his
house at about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their
purpose was to ask rice and one (1) peso from him, as his contribution to their companions, the NPA of
which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983).

Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will
be killed. He was also warned not to reveal anything with the government authorities. Because of the
threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a
seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his waistline a
.38 caliber revolver which Masamlok really saw, being only about two (2) meters away from accused,
which make him easily Identified said firearm, as that marked as Exhibit "A" for the prosecution. (TSN,
pages 72, 73, and 74, Hearing-January 4, 1983).
On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel
Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in the seminar
were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias
Jamper.

The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his
companions, to assure the unity of the civilian. That he encouraged the group to overthrow the
government, emphasizing that those who attended the seminar were already members of the NPA, and
if they reveal to the authorities, they will be killed.

Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA
will be victorious. Masamlok likewise Identified the pamphlets as those marked as Exh. exhibits "B", "C",
and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983)

Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their
own opinions about the NPA. It was also announced in said seminar that a certain Tonio Burgos, will be
responsible for the collection of the contribution from the members. (TSN, pages 78-79, Hearing- January
4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters
of the Philippine Constabulary, Digos, Davao del Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he administered
the subscription of th extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E " for the
prosecution, consisting of five (5) pages.

Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that
accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent
to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting
to the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and
signature of accused, indicating his having understood, the allegations of his extra-judicial statement.
Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain
silent, right to counsel and right to answer any question propounded or not.

With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal
Lovitos, without the presence of military authorities, who escorted the accused, but were sent outside
the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing November 15, 1982)

Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig in-
charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was
presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the
name of accused Ruben Burgos, neither was his name included among the lists of persons who applied
for the licensing of the firearm under Presidential Decree No. 1745.

After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all
admitted in evidence, despite objection interposed by counsel for accused, which was accordingly
overruled.

On the other hand, the defendant-appellant's version of the case against him is stated in the decision as
follows:

From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks
at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock
P.M., in the evening, he was investigated by soldiers, whom he cannot Identify because they were wearing
a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983)

The investigation was conducted in the PC barracks, where he was detained with respect to the subject
firearm, which the investigator, wished him to admit but accused denied its ownership. Because of his
refusal accused was mauled, hitting him on the left and right side of his body which rendered him
unconscious. Accused in an atmosphere of tersed solemnity, crying and with emotional attachment,
described in detail how he was tortured and the ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for
him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further
prolong (sic) torture and physical agony. Accused said, his eyes were covered with wet black cloth with
pungent effect on his eyes. He was undressed, with only blindfold, pungent water poured in his body and
over his private parts, making his entire body, particularly his penis and testicle, terribly irritating with
pungent pain.
All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or ordeal
was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever he fell
unconscious and again repeated after recovery of his senses,

Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously warned,
if he will still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no
longer able to bear any further the pain and agony, accused admitted ownership of subject firearm.

After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked
as Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of the
administering officer, (TSN, pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused, by way of explanation and
commentary in details, and going one by one, the allegations and/or contents of his alleged extrajudicial
statement, attributed his answers to those questions involuntarily made only because of fear, threat and
intimidation of his person and family, as a result of unbearable excruciating pain he was subjected by an
investigator, who, unfortunately he cannot Identify and was able to obtain his admission of the subject
firearm, by force and violence exerted over his person.

To support denial of accused of being involved in any subversive activities, and also to support his denial
to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45,
46 and 47, along with qqqs answers to those questions, involving Honorata Arellano ahas Inday Arellano,
said Honorata Arellano appeared and declared categorically, that the above-questions embraced in the
numbers allegedly stated in the extrajudicial confession of accused, involving her to such NPA
personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982,
none of the persons mentioned came to her house for treatment, neither did she meet the accused nor
able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with
subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but
said charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano,
was likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was
likewise dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation
to her cross-examination, Hearing-May 18, 1983)
To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur,
Salvador qqqGalaraga was presented, who declared, he was not personally aware of any subversive
activities of accused, being his neighbor and member of his barrio. On the contrary, he can personally
attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and
farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of arrests made by the authorities in
his barrio involving subversive activities but they were released and were not formally charged in Court
because they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation
to page 136, Hearing-May 18, 1983)

Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and
who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May
10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and that they will
leave it behind, temporarily for them to claim it later. They were the ones who buried it. She said, her
husband, the accused, was not in their house at that time and that she did not inform him about said
firearm neither did she report the matter to the authorities, for fear of the life of her husband. (TSN, page
24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask,
she can still Identify him. (TSN, page 6, Hearing-November 22, 1983)

After the above-testimony, accused through counsel formally rested his case in support of accused's
through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for
violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code, as
amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-
114, Hearing-May 18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT WITHOUT
VALID WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-APPELLANT FOR
FIREARM WITHOUT VALID WARRANT TO BE LAWFUL.
III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7

Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of
a firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the
evidence sustaining the crime charged meet the test of proving guilt beyond reasonable doubt?

The records of the case disclose that when the police authorities went to the house of Ruben Burgos for
the purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly
recruited him to join the New People's Army (NPA), they did not have any warrant of arrest or search
warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982).

Article IV, Section 3 of the Constitution provides:

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 not be violated, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched, and
the persons or things to be seized.

The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and
liberty of a citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48
SCRA 345) why this right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a
recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto
confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can
assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants
around him. There the state, however powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is his castle.
Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any
invasion of his dwelling and to respect the privacies of his life, (Cf. Schmerber v. California, 384 US 757
[1966], Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in his
authoritative work (Search and Seizure and the Supreme Court [1966], could fitly characterize this
constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home
and person and to afford its constitutional protection against the long reach of government is no legs than
to value human dignity, and that his privacy must not be disturbed except in case of overriding social
need, and then only under stringent procedural safeguards.' (Ibid, p. 47).

The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the
instances when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court,
provides the exceptions as follows:

a) When the person to be arrested has committed, is actually committing, or is about to commit an
offense in his presence;

b) When an offense has in fact been committed, and he has reasonable ground to believe that the
person to be arrested has committed it;

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending or has escaped
while being transferred from one confinement to another.

The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities
received an urgent report of accused's involvement in subversive activities from a reliable source (report
of Cesar Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the
ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive
documents would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states:

A person charged with an offense may be searched for dangerous weapons or anything which may be
used as proof of the commission of the offense.

The conclusions reached by the trial court are erroneous.

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or
is about to commit an offense must have personal knowledge of that fact. The offense must also be
committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting
officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the
firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive
document. Neither was he committing any act which could be described as subversive. He was, in fact,
plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his
liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations
when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot
liberally construe the rule on arrests without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so
often violated and so deserving of full protection.

The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b)
using the test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient
to induce a reasonable ground that a crime has been committed and that the accused is probably guilty
thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground
to believe that the person to be arrested has committed a crime. A crime must in fact or actually have
been committed first. That a crime has actually been committed is an essential precondition. It is not
enough to suspect that a crime may have been committed. The fact of the commission of the offense
must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the
authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a
crime not yet ascertained. The subsequent recovery of the subject firearm on the basis of information
from the lips of a frightened wife cannot make the arrest lawful, If an arrest without warrant is unlawful
at the moment it is made, generally nothing that happened or is discovered afterwards can make it lawful.
The fruit of a poisoned tree is necessarily also tainted.

More important, we find no compelling reason for the haste with which the arresting officers sought to
arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of
arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime.
There is no showing that there was a real apprehension that the accused was on the verge of flight or
escape. Likewise, there is no showing that the whereabouts of the accused were unknown,

The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was
not required to subscribe his allegations under oath. There was no compulsion for him to state truthfully
his charges under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to
go through the process of securing a search warrant and a warrant of arrest becomes even more clear.
The arrest of the accused while he was plowing his field is illegal. The arrest being unlawful, the search
and seizure which transpired afterwards could not likewise be deemed legal as being mere incidents to a
valid arrest.

Neither can it be presumed that there was a waiver, or that consent was given by the accused to be
searched simply because he failed to object. To constitute a waiver, it must appear first that the right
exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such
a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia
v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not
amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by
Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin (supra)

xxx xxx xxx

. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do
not place the citizen in the position of either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a
consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.
(56 C.J., pp. 1180, 1181).

We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental
constitutional rights and that we do not presume acquiescence in the loss of fundamental rights."
(Johnson v. Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is
evident from the records:

A CALAMBA:
Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant?

A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house when you went there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed him?

A Yes Sir.

Q And that you told him that Masamlok implicated him?

A No Sir.

Q What did you tell him?

A That we received information that you have a firearm, you surrender that firearm, first he denied but
when Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was
wrapped with a cellophane.
Q In your interview of Burgos you did not remind him of his rights under the constitution considering
that he was purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive documents were obtained in violation
of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are
inadmissible as evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents, the prosecution
presented the two arresting officers who testified that the accused readily admitted ownership of the gun
after qqqs wife pointed to the place where it was buried. The officers stated that it was the accused
himself who voluntarily pointed to the place where the alleged subversive documents were hidden.
Assuming this to be true, it should be recalled that the accused was never informed of his constitutional
rights at the time of his arrest. So that when the accused allegedly admitted ownership of the gun and
pointed to the location of the subversive documents after questioning, the admissions were obtained in
violation of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights
winch provides:

No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of such
right.. . .

The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in
evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the
appellant cannot be used against him.

The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence.
The court stated that the appellant's having been exhaustively subjected to physical terror, violence, and
third degree measures may not have been supported by reliable evidence but the failure to present the
investigator who conducted the investigation gives rise to the "provocative presumption" that indeed
torture and physical violence may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by counsel during the
custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog,
to help the accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It
could have no palliative effect. It cannot cure the absence of counsel at the time of the custodial
investigation when the extrajudicial statement was being taken.

With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in
evidence against the accused-appellant, the only remaining proof to sustain the charge of Illegal
Possession of Firearm in Furtherance of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that
the trial court found Masamlok's testimony credible and convincing. However, we are not necessarily
bound by the credibility which the trial court attaches to a particular witness. As stated in People vs..
Cabrera (100 SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of credibility the findings of the trial
court are entitled to great respect upon appeal for the obvious reason th+at it was able to observe the
demeanor, actuations and deportment of the witnesses during the trial. But we have also said that this
rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject
the findings of the trial court where the record discloses circumstances of weight and substance which
were not properly appreciated by the trial court.

The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia
(17 SCRA 98 1):

. . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence
can be accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was
the only witness who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his fate depended upon how much he
cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the
case of Rodrigo de Jesus, whose testimony We discounted for the same reason, that of Ternura cannot be
considered as proceeding from a totally unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok
surrendered to the military certainly his fate depended on how eagerly he cooperated with the
authorities. Otherwise, he would also be charged with subversion. The trade-off appears to be his
membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered
as an interested witness. It can not be said that his testimony is free from the opportunity and temptation
to be exaggerated and even fabricated for it was intended to secure his freedom.

Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982
i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who
could have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of
subversive activities or actually engaged in subversive acts, the prosecution never presented any other
witness.
This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient
to prove the guilt of the accused beyond reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after
stressing that accusation is not, according to the fundamental law, synonymous with guilt, it was made
clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had
been committed precisely by the person on trial under such an exacting test should the sentence be one
of conviction. It is thus required that every circumstance favoring his innocence be duly taken into
account. The proof against him must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a
crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v.
Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez, 74
SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA
484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA
697).

We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a
well-organized plan to overthrow the Government through armed struggle and replace it with an alien
system based on a foreign ideology. The open defiance against duly constituted authorities has resulted
in unfortunate levels of violence and human suffering publicized all over the country and abroad. Even as
we reiterate the need for all freedom loving citizens to assist the military authorities in their legitimate
efforts to maintain peace and national security, we must also remember the dictum in Morales vs. Enrile
(1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the communists, the subversives, the rebels, and the
lawless with an the means at its command, it should always be remembered that whatever action is taken
must always be within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards
constitutional liberties and protections will only fan the increase of subversive activities instead of
containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The
accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has
been charged.
The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial
No. 8.69221) and the alleged subversive documents are ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Footnotes

* The 1985 Rules on Criminal Procedure have made clearer the exceptions when an arrest may be
made without warrant. Rule 113, Section 5 provides:

Arrest without warrant when lawful. A peace officer or a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense,

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest Police station or i jail and he shall be proceeded against in accordance
with Rule 11 2, Section 7. 6a 17a).
RULE 114

EN BANC

G.R. No. L-14657 July 31, 1961

PABLO FELICIANO, petitioner,

vs.

HON. LADISLAO PASICOLAN, in his capacity as Judge of the Court of First Instance of Pampanga, and
UNION C. KAYANAN, in his capacity as provincial Fiscal of Pampanga, respondents.

Felimon Cajator for petitioner.

Union C. Kayanan for and in his own behalf as respondent.

NATIVIDAD, J.:

This is a petition for writ of mandamus to compel the respondent Judge to decide on the merits a motion
filed by the petitioner in Criminal Case No. 1984 of the Court of First Instance of Pampanga, People vs.
Carlos Pabustan,et al., in which he asks that the Court fix at P10,000.000 the amount of the bail for his
liberty pending trial.

It appears that the petitioner, Pablo Feliciano, was one of the eighteen persons charged with the crime of
kidnapping with murder in an amended information filed on October 24, 1958, in Criminal Case No. 1984
of the Court of First Instance of Pampanga, People vs. Carlos Pabustan, et al. Upon learning of the filing of
said information and that a warrant for his arrest had been issued, the petitioner, fearing, according to
his lawyer, that he might fall into the hands of irresponsible police officers, and to avoid disgrace and
humiliation consequent to an arrest and incarceration, went into hiding. On October 30, 1958, however,
Attorney Filemon Cajator, at the instance of the petitioner's wife, filed in the case a motion asking that
the Court fix at P10,000.00 the amount of the bond for petitioner's release pending trial. The Provincial
Fiscal of Pampanga opposed this motion, on the ground that the filing thereof was premature as the
petitioner had not yet been arrested. After hearing, the respondent Judge, then presiding the Court of
First Instance of Pampanga, dismissed petitioner's motion, on the ground that "pending his arrest or
surrender, Pablo Feliciano has not the right to ask this court to admit him to bail." Hence, the instant
proceeding.
It is contended that as, under the Constitution, "all persons shall before conviction be bailable by sufficient
sureties, except those charged with capital offenses when evidence of guilt is strong," Article III, Section
1, paragraph (16), Constitution of the Philippines, and that the words "all persons" used in said
constitutional provision have been interpreted to mean "all persons, without distinction, whether
formally charged or not yet so charged with any criminal offense," Herras Teehankee vs. Director of
Prisons, 76 Phil. 756, the respondent Judge has failed to comply with a duty imposed by law in refusing to
decide on the merits petitioner's motion for admission to bail and, consequently, mandamus lies to
compel said respondent to do so.

We fail to find merits in petitioner's contention. The petition at bar is in effect a petition for admission to
bail. And the rule on the subject in this jurisdiction is well settled. There is no question as to the soundness
of the rule invoked by petitioner. Such is the law in this jurisdiction. But, the rule is subject to the limitation
that the person applying for admission to bail should be in the custody of the law, or otherwise deprived
of his liberty. Bail is defined under the Rules of Court as security "required and given for the release of a
person who is in custody of the law," Rule 110, sec. 1, Rules of Court. In the case of Herras Teehankee vs.
Rovira, 75 Phil. 634, this Court held:

This constitutional mandate refers to all persons, not only to persons against whom a complaint or
information has already been formally filed. It lays down the rule that all persons shall before conviction
be bailable except those charged with capital offenses when evidence of guilt is strong. According to this
provision, the general rule is that any person, before being convicted of any criminal offense, shall be
bailable, except when he is charged with a capital offense and the evidence of his guilt is strong. Of course,
only those persons who have been either arrested, detained or otherwise deprived of their liberty will
ever have occasion to seek the benefits of said provision. But in order that a person can invoke the
constitutional precept, it is not necessary that he should wait until a formal complaint or information is
filed against him. From the moment he is placed under arrest, detention or restraint by the officers of the
law, he can claim this guarantee of the Bill of Rights, and this right he retains unless and until he is charged
with a capital offense and evidence of his guilt is strong.

And in the case of Manigbas vs. Luna, 52 O.G. 1405, it was held:

We hold that this petition is premature for its purpose is to compel the performance of duty which does
not exist there being no correlative right the use or enjoyment of it has been denied which may be the
subject of mandamus (section 67, Rule 3); and this is so because the right to bail only accrues when a
person is arrested or deprived of his liberty. The purpose of bail is to secure one's release and it would be
incongruous to grant bail to one who is free. Thus, `bail is the security required and given for the release
of a person who is in the custody of the law.' (Rule 110, section 1), and evidently the accused do not come
within its purview.
In the instant case, the petitioner upon learning that an amended information charging him and seventeen
others with the crime of kidnapping with murder had been filed, and that a warrant for his arrest had
been issued, immediately went into hiding and until now is at large. Without surrendering himself, he filed
the motion in which he asks that the court fix the amount of the bail bond for his release pending trial. It
is, therefore, clear that the petitioner is a free man and is under the jurisprudence not entitled to
admission to bail.

WHEREFORE, we hold that the petitioner has failed to make sufficient showing to entitle him to the
remedy herein prayed for. Accordingly, the present proceeding is hereby dismissed, with the costs taxed
against the petitioner. It is so ordered.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J. B.L., Paredes, Dizon and De Leon, JJ., concur.
EN BANC

A.M. No. RTJ-92-898 August 5, 1993

EVANGELINE L. DINAPOL, complainant,

vs.

JUDGE ISMAEL O. BALDADO, Regional Trial Court, Branch 45, Bais City, respondent.

RESOLUTION

PER CURIAM:

In a sworn letter dated 26 August 1992 (Rollo, 2-3), complainant charges the respondent Judge with grave
abuse of discretion, ignorance of the law and conduct unbecoming a member of the bench in that
notwithstanding the fact that the spouses Crozoro Palermo and Jovy Palermo, accused in Criminal Case
No. 775-G for murder, had not yet been arrested pursuant to the warrant of arrest he had issued on 3
March 1992 and were "freely roaming in the municipality of Guihulngan," said respondent Judge
entertained a petition for bail and set the same for hearing despite the vigorous opposition of the
complaining witness.

Complainant further alleges that the two accused have been "seen conspicuously after the filing of the
petition for bail inside the chambers of this court [RTC] accompanied by a younger brother of a
congressman"; that it was the said congressman who supposedly "sponsored" the appointment to the
Judiciary of the respondent Judge; and that the accused spouses are "relatives of the said congressman."

The material operative facts in this case, as disclosed by the pleadings of the parties, are as follows:

The Information for Murder in Criminal Case No. 775-G (Rollo, 31-32) was filed on 28 February 1992 by
3rd Assistant Provincial Prosecutor Diosdado Hermosa of Negros Oriental before the respondent Judge's
sala (Branch 45 of the Regional Trial Court of Negros Oriental). No bail was recommended for the
provisional liberty of accused Crozoro Palermo and Jovy Palermo.

On 3 March 1992, the respondent Judge issued a warrant for the arrest of the accused.

On 9 March 1992, before the trial court could acquire jurisdiction over their persons, accused filed through
their counsel, the Paras and Associates law office, a motion to grant and fix bail (Rollo, 52-53) which the
respondent Judge set for hearing on 24 April 1992.

On 10 April 1992, Evangeline Dinapol, the complaining witness and a sister of the victim in the murder
case filed a vigorous opposition to the motion.

The accused did not appear on 24 April 1992. In view thereof, the respondent Judge issued an order (a)
denying the motion to grant bail on the ground that the court "has not acquired jurisdiction over the
person of the accused," (b) ordering the issuance of an alias warrant of arrest and (c) directing the PNP of
Guihulngan "to exert utmost efforts for the arrest of the accused" (Rollo, 58). The alias warrant of arrest
was then issued on 28 April 1992 (Rollo, 59). On that same date, however, the accused — this time through
Atty. Alfonso Briones — filed an urgent motion for the reconsideration of the 24 April 1992 Order on the
ground that "the accused are forthcoming, and are willing to voluntarily submit to the jurisdiction of the
Court" (Rollo, 60). Acting thereon, and on the basis of Atty. Briones' confirmation of "the willingness of
the accused to surrender to the custody of the court as stated in said motion," respondent Judge issued
an order on 4 May 1992 resetting the hearing of the motion to grant and fix bail for 7 May 1992 at 8:30
o'clock in the morning, subject to the condition that "the accused shall surrender to the custody of the
court." Respondent Judge further directed the issuance of subpoenas to the prosecution witnesses and
warned the prosecution "that failure to present evidence on said date without justifiable reason will be
considered as lack of strength of its evidence" (Rollo, 61).

Despite their commitment and Atty. Briones' confirmation on their behalf that they would voluntarily
surrender on 7 May 1992, the accused failed to appear on the set date. While the prosecution was ready
with one witness, it did not present the latter as the accused were still at large and not under the
jurisdiction of the court. Nevertheless, "in the interest of substantial justice and to avoid delay in the
administration of justice," the respondent Judge issued on the said date an order resetting, once again,
the hearing of the motion for 30 June and 1 and 3 July 1992. This extension was, however, subjected to
the condition that "on or before June 30, 1992, accused shall have voluntarily surrendered and submitted
themselves to the custody of this court [RTC]" (Rollo, 62).

On 19 June 1992, the subpoena and warrant server of the Guihulngan Police Station, SPO1 Hindenburg
Cabang, executed a return of service of the 29 May 1992 warrant of arrest. He informed the trial court
that the warrant had not been duly served as the accused "are not found here in Guihulngan, Negros
Oriental," and the information gathered that they were temporarily residing in Cebu City proved to be
false (Rollo, 65).

Thereupon, the Prosecution filed on 24 June 1992 a "Motion Entreating Hon. Ismael O. Baldado to
Consider Whether or Not to Continue Presiding Over the Above-Entitled Case" (Rollo, 67-70). It is alleged
therein that the respondent Judge had acted with patent bias and partiality in the accused's favor as may
be gleaned from his (Judge's) actuations as above-indicated, and from the fact that "the two (2) accused
. . . have even been seen conspicuously after the filing of the petition for bail inside the Chambers of this
Court [RTC] accompanied by a younger brother of a congressman. Yet, up to now, said accused are
unarrested (sic) and are known to be roaming freely in Guihulngan, Negros Oriental." The accused,
through counsel, filed an opposition to this motion (Rollo, 71); this was then followed by exchanges of
pleadings.

In an order promulgated on 27 July 1992, respondent Judge inhibited himself from the case and ordered
the same forwarded to Branch 33 of the Regional Trial Court of Negros Oriental at Dumaguete City,
presided over by Judge Pacifico Bulado, for further disposition in accordance with Administrative Order
No. 2691 dated 18 March 1991 (Rollo, 90). However, in his Order of 7 August 1992, Judge Bulado also
inhibited himself from hearing the case since prosecution witness Alfredo Bulado is his first cousin or a
relative within the fourth civil degree; Judge Bulado decreed the return of the case to the court of origin
(Rollo, 92). On 25 August 1992, respondent Judge issued an order forwarding the case to this Court for
the appropriate action on his inhibition (Rollo, 94); the case was docketed as Administrative Matter No.
92-9864.

In his Comment (Rollo, 21-30), filed in compliance with the Resolution of 13 October 1992 (Rollo, 20),
respondent Judge maintains that he had in fact denied in his 24 April 1992 Order the accused's motion for
bail precisely because his court had not yet acquired jurisdiction over the persons of the accused.
Moreover, he claims that he ordered the issuance of an alias warrant fore their arrest and acted favorably
on the motion to reconsider the said denial (by resetting the hearing of the petition for bail) only to avoid
what appeared to him as a " 'pendulum' of procedure or a 'pingpong' of actions by both parties with the
accused manifesting their willingness to surrender and submit to the custody of the court and the
prosecution objecting to the hearing of the application for bail." He avers further that he was "solely
motivated to resolve the issues with dispatch within the framework of procedural rules, set the incident
for hearing on condition that the accused shall have voluntarily surrendered and submitted to the custody
of the law on or before date (sic) set for the hearing."

In the same vein, he assert's that he cannot be charged with ignorance of law because although he was
"a working student in college," he has "consistently endeavored to achieve excellence, and his academic
efforts proved fruitful — graduated (sic) Cum Laude in both Bachelor of Arts and Bachelor of Laws at
Silliman University." He has likewise " continued to work for such excellence in his practice of law, and has
applied with more vigor the quest for the same upon his assumption to the bench."

Finally, respondent Judge alleges that (a) there is no clear and direct proof to support the allegation that
both accused were in his chambers for, as a matter of fact, the Prosecutor himself, in his Reply of 9 July
1992, admits that the said allegation "is not of our personal knowledge"; (b) "not a single politician has
made interventions or at least insinuate (sic) to intervene, in any case pending before him"; and (c) there
are parties working "behind the scene of this malicious charge" against whom he will, in due time,
undertake legal recourse.

He did not, however, categorically deny the charge that the accused were in his chambers after the motion
for bail was filed, and the allegation that a congressman sponsored his appointment to the Judiciary.

On 14 January 1993, the complainant filed a Rejoinder [should be Reply] to Comment (Rollo, 101-102).

On 1 February 1993, we required the parties to inform this Court if they are submitting the case for
resolution on the basis of the pleadings (Rollo, 109).

On 19 February 1993, this Court received the 29 January 1993 letter of Glenn B. Litrada, youngest sister
of both Liberty Litrada — the victim in the murder case — and Evangeline Dinapol — the complainant in
instant case — informing this Court that in view of the latter's having been pressured into signing an
affidavit of desistance, she (Glenn) would be taking over as the complainant in this case (Rollo, 110). Acting
thereon, we required her to submit a copy of the said affidavit of desistance (Rollo, 113).

On 1 March 1993, respondent Judge filed a pleading, denominated as his Supplementary Comments,
wherein he exposes Atty. Jose Estacion, Jr. as "the man behind, the prime mover and the active instigator,
in the filing of this case." It appears that the respondent Judge, while still in the private practice of law,
represented Ruth Sison in an administrative case (Adm. Matter No. RTJ-87-104) filed by her against
Estacion who was then the Presiding Judge of Branch 44 of the RTC at Dumaguete City. In this Court's
Resolution of 11 January 1990, Judge Estacion was ordered dismissed from the service "with forfeiture of
all salary, benefits and leave credits" (Rollo, 160-166). After the respondent Judge's appointment, Atty.
Estacion's group sought the former's removal (Rollo, 167). The respondent Judge attached to his
Supplementary Comments the alleged true and correct copy of complainant Evangeline Dinapol's so-
called affidavit of desistance (Rollo, 124).
Thereafter, in his 2 April 1993 compliance (with the Resolution of 16 February 1993), respondent Judge
manifested that he is submitting the instant case for resolution on the basis of the pleadings. Complainant,
on the other hand, chose not to submit her compliance.

In its 18 June 1993 Memorandum submitted in compliance with the 20 May 1993 Resolution of this Court
directing it to evaluate the case and submit its report and recommendation thereon, the Office of the
Court Administrator concludes that the respondent Judge has "committed a jurisdictional lapse in the
procedure he adopted in setting the case for hearing the Motion to (sic) Bail filed by the counsel of the
accused on the mere allegation that the accused are forthcoming and are willing to voluntarily submit to
the jurisdiction of the court." According to the said Office, it is clear from Section 1, Rule 114 of the Revised
Rules of Court that an accused can move for the granting of bail only if the court has acquired jurisdiction
over his person. It then recommends that the respondent Judge "be sternly admonished with a warning
that a repetition of the same or similar violation in the future will be dealt with more severely."

It is axiomatic that a court cannot entertain an accused's motion or petition for bail unless he is in the
custody of the law. Bail is defined Section 1, Rule 114 of the Revised Rules of Court as "the security given
for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his
appearance before any court as required under the conditions" specified in Section 2 thereof. A person is
considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest
issued pursuant to Section 6, Rule 112, or even without a warrant under Section 5, Rule 113 in relation to
Section 7, Rule 112 of the Revised Rules of Court, or (b) when he has voluntarily submitted himself to the
jurisdiction of the court by surrendering to the proper authorities. Elsewise stated, the purpose of
requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his
appearance at the trial (Almeda vs. Villaluz, 66 SCRA 38 [1975], citing Green vs. Petit, Sheriff, 54 N.E. 2d
281). Accordingly, it would be incongruous to grant bail to one who is free (Feliciano vs. Pasicolan, 2 SCRA
888 [1961], citing Manigbas vs. Luna, 52 O.G. 1405; see also Mendoza vs. Court of First Instance of Quezon,
51 SCRA 369 [1973]). The right to bail is guaranteed by the Constitution. Section 13, Article III of the 1987
Constitution provides in part that:

All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may
be provided by law. . . . .

However, "only those persons who have been either arrested, detained or otherwise deprived of their
liberty will ever have occasion to seek the benefits of said provision" (Herras Teehankee vs. Rovira, 75
Phil. 634 [1945]). Thus, it logically follows that no petition for bail can be validly entertained for as long as
the petitioner is NOT in the custody of the law.
Since the accused in Criminal Case No. 775-G were not arrested by virtue of both the original warrant
arrest and the alias warrant of arrest, and did not voluntarily submit to the jurisdiction of the trial court,
they had no standing in court to file a motion for bail. Nor did the court have any business setting the
same for hearing. By setting the said motion for hearing despite the fact that his court had not yet acquired
jurisdiction over the persons of the accused, the respondent Judge blatantly disregarded established rule
and settled jurisprudence. While he subsequently rectified his error by denying the motion in his Order of
24 April 1992, he nevertheless backtracked by granting the motion for reconsideration and setting anew
the hearing of the motion for bail this time with a warning to the prosecution that its failure to present
evidence on the scheduled date "will be considered as lack of strength of its evidence." We find neither
rhyme nor reason for this warning because if there was any party to be warned, it should have been the
accused who had abused the liberality of the respondent Judge and belittled the authority of the court.
Worse, the respondent Judge still accommodated the accused — who had already reneged on their
commitment to submit to the court's jurisdiction — by resetting the hearing of the motion for bail after
they failed to appear a second time. These acts of the respondent Judge compounded his already
questionable disregard of the rule and doctrine aforecited. He opted to perpetuate his defiance thereto
and experiment on a new procedure which we cannot sanction. According to Canon 18 of the Canons of
Judicial Ethics, a Judge violates his duty as a minister of justice if he seeks to do what he may personally
consider substantial justice in a particular case and disregards the general law as he knows it to be binding
on him.

Respondent Judge had likewise betrayed impropriety by his unusual partiality in favor of one of the
parties. It is to be observed that the former did not categorically deny the accused's reported visit to his
chambers after the motion for bail was filed. Instead of simply stating in a few words that the accused
never saw him in his chambers, the respondent Judge labored hard to discuss in detail his position that
"there is no clear and direct proof" to support the said allegation. The Canons of Judicial Ethics mandate
that a judge's official conduct should be free from the appearance of impropriety, and that his personal
behavior, not only upon the bench and in the performance of judicial duties, but also in his every day life,
should be beyond reproach (Canon 3, Canons of Judicial Ethics).

ACCORDINGLY, respondent Judge is hereby meted a fine of Ten Thousand Pesos (P10,000.00) and is
warned that a repetition of the same or similar act shall be dealt with more severely.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo,
Melo, Quiason Puno and Vitug, JJ., concur.
EN BANC

A.M. No. RTJ-94-1183 February 6, 1995

CONCERNED CITIZENS, complainants,

vs.

JUDGE ARMIE E. ELMA, respondent.

PER CURIAM:

This administrative case arose from an anonymous letter-complaint, dated May 25, 1993,1 charging Judge
Armie E. Elma, presiding judge, Regional Trial Court of Pasig, Branch 153, with the Gross Ignorance of the
Law and Grave Abuse of Discretion for granting bail in a non-bailable offense. The complaint was
addressed to Vice-President Joseph Estrada as Chairman of the Philippine Anti-Crime Commission (PACC)
who endorsed the complaint to the Ombudsman 2 for investigation. In turn, the Ombudsman referred
the case to this Court for appropriate action.

The records disclose that one Alfredo Gatus y Tiamzon was charged with illegal recruitment in large scale
and estafa in five (5) separate Information,3 before the sala of respondent Judge Elma. In the Information
for Illegal Recruitment in Large Scale, dated August 14, 1992, no bail bond was recommended.4

On August 26, 1992, accused Gatus file a motion5 to fix his bail in Criminal Case No. 94126 (Illegal
Recruitment in Large Scale) at P60,000.00.6

On the same date, respondent judge, instead of setting the application for hearing, directed the
prosecution to file its Comment or Opposition to accused's Motion to Fix Bail within five (5) days from
notice.7

On August 31, 1992, the prosecution submitted its Comment, thus:

1. That based on the record of this case, it appears that a preliminary investigation was conducted;

2. That the . . . investigating prosecutor who conducted the preliminary investigation (did not)
recommend (any) bail for said offense;

3. That undersigned still maintains the findings of the investigating Prosecutor. However,
considering that the case is now within the Honorable Court, we submit the instant Petition for (sic) its
sound discretion.8

In an Order dated September 2, 1992, respondent judge set the accused bail at P100,000.00.9 On October
9, 1992, respondent judge approved the P100,000.00 bail posted by the accused. 10

Considering the complaint, the Court required respondent judge to file his Comment. 11 In his Comment,
12 respondent judge admits that he failed to conduct a formal hearing prior to his grant of accused Gatus'
application for bail in Criminal Case No. 94126. He, however, maintains that in ordering the prosecution
to comment on accused's motion to fix bail, he has substantially complied with the requirement of a
formal hearing. He further claims that he required the prosecution to adduce evidence but the latter
refused and left the determination of the motion to his discretion.

The Constitution guarantees to every person under legal custody the right to bail, except those charged
with offenses punishable by reclusion perpetua when evidence of guilt is strong. 13

The Rules likewise mandates that before ruling on an application for bail, a hearing should first be
conducted to determine the existence of a strong evidence against the accused. 14

Respondent judge, in granting bail to accused Gatus in Criminal Case No. 94126, disregarded this basic
rule of procedure. It is a rule of long standing that bail is not a matter of right in cases involving capital
offenses or where the offenses for which the accused stands charged is punishable by reclusion perpetua
when evidence of guilt is strong. It is true that the weight of the evidence adduced is addressed to the
sound discretion of the court. However, such discretion may be exercised only after the hearing called to
ascertain the degree of guilt of the accused for the purpose of whether or not he should be granted
provisional liberty. 15 At the hearing, the court should assure that the prosecution is afforded the
opportunity to adduce evidence relevant to the factual issue, with the applicant having the right of cross-
examination and to introduce his own evidence in rebuttal. 16 In the case at bench, however, no formal
hearing was conducted by respondent judge. He could have not assessed the weight of the evidence
against accused Gatus before granting the latter's application for bail.

The necessity of hearing an application for bail has been stressed by this court in the early case of People
v. San Diego, 17 thus:

The court's discretion to grant bail in capital offenses must be exercised in the light of a summary of the
evidence presented by the prosecution; otherwise, it would be uncontrolled and might be capricious or
whimsical. Hence, the court's order granting or refusing bail must contain a summary of the evidence for
the prosecution followed by its conclusion whether or not the evidence of guilt is strong . . .

In granting accused Gatus' application for bail in Criminal Case No. 94126, respondent judge issued on
September 2, 1992 an Order, worded as follows:

Acting on accused's motion to fix bail which can be treated as a petition to bail, and considering the
particular circumstances of this case, bail is hereby set at P100,000.00 to be put up by sufficient sureties.

SO ORDERED. 18

The Order speaks eloquently for itself. On its face, it is once apparent that respondent judge did not make
any finding that the evidence against the accused was not strong to justify his grant of bail. Respondent
judge merely adverts to "particular circumstances" of the case without in any way hinting their nature and
character. Such an inscrutable statement does not satisfy the Constitution and the Rules.

In his Comment, respondent judge claims that his Order, dated August 26, 1992, requiring the prosecution
to file its Comment/Opposition to the motion for bail, substantially complied with the provisions of the
Rules requiring a formal hearing. He insists that said Order amounts to a summary hearing and complies
with the Rules.

The stance of respondent judge magnifies his ignorance of the law. Summary hearing is "such brief and
speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the
purpose of the hearing which is to determine the weight of the evidence for purposes of bail." 19 In
receiving evidence on bail, it is true that the court is not required to try the merits of the case nor is it
called to speculate on the outcome of the trial.20 Nonetheless, hearing of the application cannot be totally
dispensed with. To do away with the hearing is to dispense with this time-tested safeguard against
arbitrariness.

The importance of the Rule requiring the conduct of the hearing in an application for bail cannot be
overemphasized. On its result depends the right of an accused to provisional liberty as opposed to the
duty of the State to protect its people against dangerous elements. The resolution of the issue affects
important norms in our society, liberty on one hand, and order on the other. To minimize, if not eliminate,
error and arbitrariness in a judge's decision, the Rules require the judge to hear the parties and then make
an intelligent assessment of their evidence.

This is not the first time respondent judge violated the rule on bail in capital offenses. He has been
previously fined for a similar offense. On February 11, 1993, in A.M. No. 92-10-889 RTC, respondent judge
also granted an accused a P100,000.00 bail in a non-bailable murder case. He granted the bail without
affording the prosecution an opportunity to show it had a strong evidence against the accused. He was
fined P10,000.00. On a motion for reconsideration, his fine was reduced to P5,000.00. He was, however,
sternly warned that a repetition of the same or similar offense will be dealt with more severely.

It thus appears that in two (2) capital cases, respondent has run roughshod on the right of the prosecution
to oppose bail of persons accused of capital offenses, a right rooted on the necessity to protect the safety
of the people. Respondent judge's attitude is lamentable for it contributes to the deterioration of the
peace of our community and shows callousness to the cry of our people for a more ordered liberty. As
respondent judge has chosen to be stubborn in his ignorance of our rules, he has forfeited his privilege to
wield the gavel of justice.

WHEREFORE, respondent Judge Armie E. Elma, presiding judge, Branch 153, Regional Trial Court of Pasig,
Metro Manila, is hereby found guilty of gross ignorance of the law and grave abuse of discretion.
Respondent judge is hereby DISMISSED from service, with forfeiture of all retirement benefits and accrued
leave credits and with prejudice to re-employment in any branch or instrumentality of the government,
including government-owned or controlled corporations. This Resolution is immediately executory.

SO ORDERED.

Narvasa, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Kapunan,
JJ., concurr.

Feliciano and Mendoza, JJ,. took no part.

EN BANC

A.M. No. RTJ-95-1286 March 2, 1995

TERESITA Q. TUCAY, complainant,

vs.

JUDGE ROGER A. DOMAGAS, Branch 46, Regional Trial Court, Urdaneta, Pangasinan, respondent.

MENDOZA, J.:

Teresita Q. Tucay filed this complaint against Judge Roger A. Domagas of the Regional Trial Court (Branch
46), Urdaneta, Pangasinan, charging him with ignorance of the law, serious misconduct and grave abuse
of discretion.

The facts are as follows:

Ludovico Ellamil, Bernardo Ellamil and Melchor Ellamil are accused of murder in Criminal Case No. U-6762.
The case was formerly assigned to the respondent judge. Teresita Tucay, the wife of the victim, is the
complainant in that case.

On April 18, 1994, a petition for bail was filed on behalf of the accused Bernardo Ellamil. The petition was
denied,1 however, by respondent judge on the ground that it did not bear the conformity of the provincial
prosecutor.

The following day, April 19, 1994, a second petition for bail2 was filed by the accused with the prayer that
he be allowed to post bail in the amount of P50,000.00. This time, the petition contained the notation "No
objection" of Provincial Prosecutor Jose Antonio Guillermo.

Without holding a hearing to determine whether the evidence of the prosecution was strong, respondent
judge issued an order3 on the same day, in which he granted bail and directed the release of accused from
detention with instructions to the bondsman to register the bond with the Register of Deeds of Lingayen,
Pangasinan within ten days.
The present complaint was filed, protesting the grant of bail without hearing and without notice to trial
fiscal, Atty. Tita Villarin, of the Provincial Prosecutor's recommendation for approval of the bond. It is
alleged that the assessed value of the property given as bond is only P47,330.00, and, therefore, is short
of the amount fixed for the release of the accused.

In his comment filed on August 3, 1994, respondent judge alleged:

(1) The granting of the second petition for bail bears the conformity of the Provincial Prosecutor as
per notation at the right-hand margin on page 2 of the petition;

(2) That the accused already made an additional bond as per Order dated May 19, 1994 to complete
the P50,000.00 bail bond which he registered including the original bond;

(3) The Second petition for bail was approved on April 19, 1994 and the initial hearing was supposed
to be on February 24 & 25, 1994 in so far as one accused, Ludovico Ellamil y Quinit, a youthful offender
under the custody of DSWD and thereafter transferred to the Regional Rehabilitation Center, Bauang, La
Union, is concerned;

(4) That the hearing has been postponed repeatedly at the instance of the private prosecutor due to
the non-arrest of the other two (2) accused;

(5) That to avoid further suspicion and upon manifestation of the private prosecutor the undersigned
inhibited himself as of May 31, 1994 and said case has been re-raffled to Branch 49, presided by Hon.
Iluminado C. Meneses.

In her reply dated September 19, 1994, complainant alleged that respondent judge required the accused,
Bernardo Ellamil, to post an additional bond only after she had pointed out the deficiency of the original
property bond. She further alleged that the provincial prosecutor recommended no bail, despite the fact
that MCTC Judge Rodrigo Nabor who, had ordered the arrest of the accused after a preliminary
investigation, had fixed no bail for his temporary release. Complainant denied that the delay in the trial
of the case was due to postponements requested by her counsel.

The Office of the Court Administrator (OCA), to which the letter-complaint was sent, finds the respondent
judge grossly ignorant of the law in granting bail without a hearing in a criminal case involving a capital
offense and recommends that he be fined and given a stern warning. The OCA stresses that respondent
judge ought to know that a hearing to show that the evidence of guilt is not strong was indispensable to
the grant of bail to the accused. It likewise points out that, in his order releasing the accused on bail, the
judge did not state that he was granting the petition for bail but simply ordered him released. In a
memorandum signed by Deputy Court Administrator Juanito A. Bernad and approved by Court
Administrator Ernani Cruz Paño, the OCA states:

It is evident from the records that, the aforesaid second petition for bail was not set for hearing by
respondent Judge in disregard of the provision of Sec. 5 Rule 114 of the Revised Rules on Criminal
Procedure requiring hearing before an accused charged with a capital offense can be granted bail.
Although the Provincial Prosecutor interposed no objection thereto, the assailed Order dated April 19,
1994 which was issued on the very day the petition for bail was filed, nevertheless showed lack of
compliance with the procedural requirement that the prosecution be given an opportunity to present
within a reasonable time all the evidence that it may desire to introduce before the court may resolve the
motion for bail. (Sec. 15, Rule 114).

In A.M. No. 92-10-884-RTC — Re: Report of the Pasig RTC Judges, citing the case of Herras Teehankee vs.
Director of Prison, 76 Phil. 756, 789, this Court held that:

. . . even where the prosecutor refuses to adduce evidence in opposition to the application to grant and
fix bail, the Court may ask the prosecution questions to ascertain the strength of the State's evidence or
judge the adequacy of the amount of bail.

Moreover, the assailed Order of April 19, 1994 is defective in form and substance as it made no categorical
mention whatsoever of granting the petition for bail, much less did it contain any pronouncement to the
effect that the requisite proof of guilt of the accused is not evident. It simply stated the fact that the bail
bond in the amount of P50,000.00 had been posted by said accused who was consequently ordered
released from detention.

The court's discretion to grant bail in capital offense must be exercised in the light of a summary of the
evidence presented by the prosecution, otherwise, it could be uncontrolled and might be capricious or
whimsical. Hence, the court's order granting or refusing bail must contain a summary of the evidence for
the prosecution followed by its conclusion whether or not the evidence of guilt is strong. (Carpio vs.
Maglalang, 196 SCRA 50-51, citing "People vs. San Diego," 26 SCRA 522, 524)

. . . Such error cannot be characterized as mere deficiency in prudence, discretion and judgment but a
patent disregard of well-known rules and, therefore, constitutive of gross ignorance of the law (A.M. No.
RTJ-93-1097 "Regional State Prosecutor Francisco Q. Aurillo, Jr. vs. Judge Getulio M. Francisco and Judge
Pedro S. Espina, etc." August 12, 1994).

We agree with the foregoing observations of the OCA. We wish to add that, although the Provincial
Prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should
nevertheless have set the petition for bail for hearing and diligently ascertained from the prosecution
whether the latter was not really contesting the bail application.

He should have called a hearing for the additional reason of taking into account the guidelines in Rule 114,
sec. 6 of 1985 Rules on Criminal Procedure, as amended, in fixing the amount of the bail. As it is, the
respondent judge simply fixed the amount of bail at P50,000.00 and ordered the release of the accused.
It turned out that the property given as security for the bond had a market value of only P42,940. 00.
Although it appears that an additional bond was later posted, this was done only after the complainant
had objected to the bond.

Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for justifiable
cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114, sec. 6 for
fixing bail should respondent judge have granted the petition for bail and ordered the release of the
accused. In failing to observe these rudimentary requirements, the respondent judge showed gross
ignorance of the law for which he should be fined.

The OCA recommends that a fine of P20,000.00 be imposed on him and that he be warned. The
recommendation is in accordance with the penalty imposed in the analogous cases.4

WHEREFORE, respondent Judge Roger A. Domagas is hereby ordered to pay a fine of P20,000.00 and is
sternly warned that the commission of a similar offense in the future will be dealt with more severely.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno,
Vitug, Kapunan and Francisco, JJ., concur.
THIRD DIVISION

[G.R. Nos. 70746-47. September 1, 1992.]

BIENVENIDO O. MARCOS, Petitioner, v. HON. FERNANDO S. RUIZ, RTC Judge, 7th Judicial Region,
Tagbilaran City, and THE PEOPLE OF THE PHILIPPINES, Respondents.

Carlos A. Marcos for Petitioner.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO DISMISS; MAY BE RESOLVED AFTER

ARRAIGNMENT. — All the parties agree that the 12 November 1984 Motion to Dismiss was not resolved
by the trial court. Respondent Judge asserts that the petitioner is estopped from questioning the inaction
on this motion because he voluntarily appeared at his arraignment, entered a plea and agreed to the
scheduling of the case for trial on the merits; besides, the Prosecution, by presenting its evidence, is
deemed to have abandoned the motion. While the first proposition is incorrect, the second is inaccurate.
Estoppel does not operate in the present case for the motion may still be resolved after the arraignment;
by its nature, it may be filed by the prosecution at any time. As a matter of fact, had the petitioner not
signed his conformity thereto, it would have been to his benefit or advantage that the motion be resolved
after his plea for, by then, if the same is granted, the Prosecution would be precluded from refiling the
case on the ground of double jeopardy.

2. ID.; ID.; ID.; ACTION ON MOTIONS MUST BE UNEQUIVOCAL AND NOT BE LEFT TO CONJECTURE.
— The manifestation and withdrawal of the motion (to dismiss) were made in the presence of the accused
and his counsel; neither of them objected thereto for they knew too well that they had no legal basis
therefor. The only flaw in this regard is the respondent Judge’s failure to explicitly make a ruling on the
oral motion. He merely granted the motion impliedly by immediately directing the arraignment of the
accused. He should have taken the trouble of making an unequivocal ruling thereon by simply stating:
"Motion is granted; the motion to dismiss is considered withdrawn. All right, arraign the accused." The
demands of orderly procedure require that a judge of a court of record must ensure that actions on
motions must not be left to conjecture but must, in a manner of speaking, be done in black and white.
3. ID.; ID.; HEARING IN ABSENTIA, PROPER. — Having failed to appear on 8 April 1985 despite due
notice, and considering that on said date the urgent motion for resetting had not yet been received by
the court, respondent Judge could not be faulted for believing that petitioner’s non-appearance was
unjustified. Hence, a hearing in absentia was proper under the aforequoted provision of the Constitution
and Sections 2(c) and 1(c) of Rules 114 and 115, respectively, of the Rules of Court.

4. ID.; ID.; BAILBOND; FORFEITURE. — A bail bond may be forfeited only in instances where the
presence of the accused is specifically required by the court or the Rules of Court and, despite due notice
to the bondsmen to produce him before the court on a given date, the accused fails to appear in person
as so required. There is no showing that the court had specifically required the bonding company to
produce the body of the petitioner on 8 and 9 April 1985. Moreover, since Criminal Cases Nos. 3890 and
3892, which involve two (2) checks with a face value of P3,000.00 each, were merely for the violation of
Batas Pambansa Blg. 22 which imposes a penalty of "imprisonment of not less than thirty (30) days but
not more than one (1) year or by a fine of not less than but not more than double the amount of the check
which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at
the discretion of the court," the presence of the accused at the hearing on 8 and 9 April 1985 was not
indispensable.

5. ID.; ID.; ARRAIGNMENT; ACCUSED REQUIRED TO PERSONALLY ENTER HIS PLEA. — It will, however,
be noted that insofar as the second case, Criminal Case No. 3892, is concerned, the court made no ruling
on the manifestation and offer by petitioner’s counsel that the reading of the information be waived and
a plea of not guilty be entered. The petitioner was neither made to confirm the manifestation nor directed
to personally make the plea. There was, therefore, no valid arraignment in Criminal Case No. 3892. Section
1(b), Rule 116 of the Rules of Court, as amended, requires the accused to personally enter his plea.

6. ID.; ID.; MOTION FOR POSTPONEMENT; COUNSEL BOUND TO GIVE PRIORITY TO HEARING SET ON
AGREED DATE. — The motion to reset the hearing was a mere subterfuge to obtain a postponement of
and delay the proceedings. Petitioner and his counsel were notified in open court about the 8 and 9 April
1985 hearing on 7 February 1985. Having agreed to that setting, counsel in effect certified that he had no
prior commitment on those dates and he was thereby bound to give priority to the same, unless events
of greater importance or of a more serious nature requiring his presence, supervened.

7. ID.; ID.; ID.; GRANTING IN CRIMINAL CASE IS LEFT TO SOUND DISCRETION OF COURT. — Counsel
for petitioner should not have presumed that the motion, which he prepared and sent by registered mail
only on 29 March 1989, would reach the court and be granted before 8 April 1985. He knew, or ought to
know that the granting of motions for postponement in criminal cases is left to the sound discretion of
the Court — a rule which has been steadfastly adhered to since United States v. Lorenzana and which this
Court more explicitly expressed in Unites States v. Ramirez.
8. ID.; ID.; ID.; A MERE SCRAP OF PAPER WHERE NOTICE OF HEARING IS LACKING. — The urgent
motion for resetting was a mere scrap of paper. As earlier noted, it does not contain a notice of hearing
to the Prosecution; all it had was a mere request, addressed to the Clerk of Court, that it be submitted for
the consideration and approval of the court immediately upon his receipt thereof. There was, therefore,
a clear violation of Section 5, Rule 15 of the Rules of Court, which is also applicable in motions for
continuance in criminal case.

9. ID.; ID.; WHEN NON-APPEARANCE OF ACCUSED CONSIDERED A WAIVER. — With respect to an

accused who is not in custody, his non-appearance constitutes a waiver of his right to be present only for
the trial set for the particular date of which he had notice. Upon the other hand, such non-appearance by
an accused in custody and who later escapes is considered a waiver of the right on such date and all
subsequent trial dates until such custody is regained.

10. ID.; LAWYER-CLIENT RELATIONSHIP; A CLIENT IS BOUND BY THE ACTS OF HIS COUNSEL. — A client
is bound by the acts, even mistakes of his counsel in the realm of procedural technique; however, if the
former is prejudiced by the latter’s negligence or misconduct, he may recover damages.

DECISION

DAVIDE, JR., J.:

In this special civil action for certiorari under Rule 65 of the Rules of Court, petitioner seeks to set aside,
for being null and void, the Orders of respondent Judge of 8 April 1985 which considered the failure of
petitioner and his counsel to appear on that date as a waiver of the right to present evidence, and of 29
April 1985 denying petitioner’s motion for the reconsideration of said order in Criminal Cases No. 3890
and No. 3892.

The facts are not complicated.

On 2 August 1984, after conducting the appropriate preliminary investigation, Acting 2nd Assistant City
Fiscal Lorenzo A. Lopena of the City of Tagbilaran filed with the Regional Trial Court of Bohol two (2)
informations against petitioner herein for violating Batas Pambansa Blg. 22; said violations allegedly took
place on 5 July 1983 in the City of Tagbilaran when the petitioner, knowing fully well that he did not have
sufficient funds deposited with the Far Fast Bank and Trust Company (Cebu North Proclamation Area
Branch), delivered to Fulgencia Oculam, in payment for assorted pieces of jewelry taken by petitioner’s
wife Anacleta Marcos, two (2) checks drawn against said bank in the amount of P3,000.00 each. The
informations were docketed as Criminal Cases No. 3890 1 and No. 3892 2 and were raffled to Branch II of
said court. The petitioner posted a surety bond for his temporary liberty.chanrobles.com.ph : virtual law
library

The arraignment was set for 12 November 1984. The petitioner appeared on that date but asked for a
resetting on the ground that his lawyer had just withdrawn and he had to look for another lawyer. The
court granted his request and the arraignment was reset to 29 November 1984. 3

It turned out, however, that petitioner settled his obligation with the offended party who, on 3 November
1984, executed an Affidavit of Desistance which she subscribed and swore to before Notary Public Paulino
G. Clarin. Pertinent portions thereof read:chanrob1es virtual 1aw library

x x x

"2. That upon my instance, I requested that the cases be remanded to the City Fiscal for
reinvestigation but which motion was denied;

3. That meanwhile, the respondent settled all his obligations subject matter of the present cases;

4. That under the circumstances, I possess no ground to further proceed with the prosecution of the
cases;

5. That I am willing to have cases dismissed with the consent of the respondent or accused, as I
hereby desist from further proceeding with the case;

6. That this affidavit of desistance may be utilized by the City Fiscal of the City of Tagbilaran for the
dismissal of the cases." 4

x x x
At 10:00 o’clock in the morning of 12 November 1984, Acting 2nd Assistant City Fiscal Lopena filed a
Motion to Dismiss Criminal Case No. 3892 on the ground:jgc:chanrobles.com.ph

"1. That the complaining witness in this case has turned hostile and shown manifest lack of interest
to prosecute the above-entitled case as evidenced by his (sic) Affidavit of Desistance, which is hereto
attached as Annex "A" and is made an integral part hereof;

2. That without the testimony of said complaining witness, the above-entitled case cannot be
prosecuted successfully, there being no other evidence of hand to prove the guilt of the accused." 5

The motion bears the approval of Acting 1st Assistant City Fiscal Miguel Relampagos who acted for the
Acting City Fiscal because of the latter’s absence, and the consent of petitioner. It also contains the
request of the movant fiscal addressed to the Clerk of Court that the same be set for resolution of the
court "upon receipt hereof." chanrobles law library

When the cases were called on 29 November 1984, neither petitioner nor his counsel appeared; however,
the court received a telegram from petitioner’s wife. Lita Marcos, advising the court that the petitioner
was indisposed. Without any objection on the part of the prosecution, the court cancelled the arraignment
on that date and re-scheduled the same, together with the trial, for 7 and 8 February 1985. 6

On 7 February 1985, the petitioner appeared together with his counsel de parte, Atty. Carlos Marcos. He
was arraigned in both cases; he entered a plea of not guilty. Forthwith, the court set the trial of the cases
for 8 April 1985 at 2:30 P.M. and 9 April 1985 at 8:30 A.M. The petitioner, his counsel and the Assistant
City Fiscal were notified in open court of the setting. 7

When the cases were called in the afternoon of 8 April 1985, neither petitioner nor counsel appeared. The
prosecution presented its evidence ex-parte and rested its case. The court then issued an Order 8
forfeiting the bond posted by the petitioner, directing Paramount Insurance Corp., the bondsman, to show
cause, within thirty (30) days form notice, why no judgment should be issued against the bond and
declaring that as no evidence has been submitted by the petitioner, the cases were deemed submitted
for decision.
On 9 April 1985, the trial court received an urgent motion for the resetting of the hearing filed by counsel
for the petitioner. 9 The motion, sent by registered mail and dated 29 March 1985,
alleges:jgc:chanrobles.com.ph

"1. That undersigned counsel has a previous legal commitment in Manila needing his personal
attention;

2. That it would be physically impossible for him to arrive on time for the hearing of the above-
entitled case;

3. That because of this unavoidable circumstances (sic) he is constrained to pray for their (sic)
resetting." 10

and prays that the hearing of the cases be reset to 13 and 14 May 1985 at 2:30 P.M. and 8:30 A.M.,
respectively. This motion does not contain a notice of hearing to the Prosecuting Fiscal but a mere request
addressed to the Branch Clerk of Court reading:jgc:chanrobles.com.ph

"Please submit the foregoing motion for the consideration and approval of this Honorable Court
immediately upon receipt hereof."cralaw virtua1aw library

On 23 April 1985, petitioner’s counsel filed a "Motion for Reconsideration to (sic) Order" dated 8 April
1985. 11 In justifying petitioner’s failure to appear at the hearing on 8 April 1985, counsel
contends:jgc:chanrobles.com.ph

"THAT in view of the said motion [for resetting of hearing] the accused, in good faith, believed that the
hearing set on April 8, 1985 would not proceed and his presence would thus be unnecessary; that to save
money for fare and meals in a trip to Tagbilaran City from Cebu City, and vice versa, the accused who is a
government employee did not anymore attend the hearing which he believed was cancelled on account
of the motion aforementioned;

THAT the accused likewise believed that aside from the motion for postponement, the pendency of the
Motion to Dismiss filed by the prosecuting fiscal, Lorenzo A. Lopena, in view of complaining ‘witness’
Affidavit of Desistance, this Honorable Court would not proceed to receive the evidence of the
prosecution. In fact, up to the present, the aforementioned Motion to Dismiss dated November 12, 1984
has not been acted upon by this Honorable Court;chanrobles.com.ph : virtual law library
THAT the non-appearance of the accused in the scheduled trial is not a sufficient ground for the
cancellation of the bailbond because his failure could still be considered as a waiver of his presence.

THAT it is the stand of the undersigned counsel that the motion to dismiss by the prosecuting fiscal be
first resolved before this Honorable Court could proceed with the further proceeding of this case. Let it
be stressed that the accused was arraigned by this Honorable Court over the objection of the accused
AFTER the Motion to Dismiss was filed by the prosecution and BEFORE it was, as it still is, resolved which
could be a denial or granting (sic) thereof, which to the undersigned does not matter as long as it is acted
upon."cralaw virtua1aw library

Once again, the motion does not contain a notice of hearing to the prosecuting fiscal; it has instead a mere
request that the Clerk of Court submit it for the consideration of the court immediately upon his receipt
thereof.

On 29 April 1985, the court issued an Order 12 denying the aforesaid motion for reconsideration on the
following grounds: that the petitioner should not assume that the motion for postponement would be
granted; he is estopped from insisting on a ruling on the motion to dismiss because he agreed to be
arraigned, pleaded not guilty and did not question the scheduling of the cases for trial; and the
presentation by the Prosecution of its evidence amounted to an abandonment of its motion to dismiss.

On 3 May 1985, a Notice of Promulgation setting the promulgation of sentence in the two (2) cases to 17
May 1985 was sent to the parties by Antonio R. Monungol, 13 the Research Attorney of Branch II of the
court below.

Hence, this petition which was filed on 14 May 1985 and is anchored on and raises the principal issue of
the alleged denial of petitioner’s right to confront the witnesses for the prosecution and to be heard.
Corollarily, petitioner submits that respondent Judge erred in not acting upon the motion to dismiss
before setting the arraignment of the accused and receiving the People’s evidence.

On 16 May 1985, this Court resolved to require the respondents to comment on the petition and to issue
a Temporary Restraining Order enjoining respondent Judge from promulgating the judgment in Criminal
Cases Nos. 3890 and 3892.

Respondent Judge filed his Comment 14 by mail on 30 May 1985. He maintains that petitioner voluntarily
submitted to the arraignment and was not denied due process. On the other hand, Acting 2nd Assistant
City Fiscal Lopena mailed his Comment on 8 June 1985. 15 The Office of the Solicitor General filed its
Comment on 6 September 1985, 16 and asserts therein that the Order in question is interlocutory and
hence, not appealable; respondent Judge acted in accordance with law and sound discretion in issuing the
orders; and petitioner was not denied his day in court.

On 28 October 1985, petitioner mailed his Joint Reply to the Comments.

On 27 November 1985, this Court resolved to give due course to the petition, consider the Comments as
Answer and require the parties to file their respective Memoranda, which they subsequently complied
with.

The issues to be resolved in this petition are whether or not the respondent Court committed grave abuse
of discretion amounting to lack or absence of jurisdiction in:chanrobles virtual lawlibrary

(1) ordering the arraignment of the accused and receiving the evidence for the prosecution without
first resolving the motion to dismiss;

(2) ordering the forfeiture of the bail bond when petitioner failed to appear on 8 April 1985; allowing
the Prosecution to present its evidence ex parte and declaring the petitioner as having waived his right to
present his evidence; and

(3) denying the motion to reconsider the Order of 8 April 1985 and setting the promulgation of
judgment on 17 May 1985.

1. All the parties agree that the 12 November 1984 Motion to Dismiss was not resolved by the trial
court. Respondent Judge asserts that the petitioner is estopped from questioning the inaction on this
motion because he voluntarily appeared at his arraignment, entered a plea and agreed to the scheduling
of the case for trial on the merits; besides, the Prosecution, by presenting its evidence, is deemed to have
abandoned the motion. While the first proposition is incorrect, the second is inaccurate. Estoppel does
not operate in the present case for the motion may still be resolved after the arraignment; by its nature,
it may be filed by the prosecution at any time. As a matter of fact, had the petitioner not signed his
conformity thereto, it would have been to his benefit or advantage that the motion be resolved after his
plea for, by then, if the same is granted, the Prosecution would be precluded from refiling the case on the
ground of double jeopardy.
This Court noted, however, that the motion to dismiss is for Criminal Case No. 3892 only 17 although the
instant petition makes it appear, and the respondents seem to accede thereto, that the motion affects
both Criminal Cases Nos. 3890 and 3892. This, of course, would become entirely irrelevant in the light of
the succeeding discussion on the second ground stressed by the respondent Judge.

What actually transpired before the court a quo was that the Prosecution orally withdrew the motion to
dismiss. In the transcripts of the stenographic notes of the proceedings on 7 February 1985, 18 We find
the following:jgc:chanrobles.com.ph

"ASST. CITY FISCAL L. LOPENA

Your Honor please, I have conferred with the complaining witness and she manifested her willingness to
testify in this case for the prosecution. In view of this development, we are constrained to withdraw our
motion to dismiss.cralawnad

COURT

All right, then arraign the accused." 19

This manifestation and withdrawal of the motion were made in the presence of the accused and his
counsel, neither of them objected thereto for they knew too well that they had no legal basis therefor.
The only flaw in this regard is the respondent Judge’s failure to explicitly make a ruling on the oral motion.
He merely granted the motion impliedly by immediately directing the arraignment of the accused. He
should have taken the trouble of making an unequivocal ruling thereon by simply stating: "Motion is
granted; the motion to dismiss is considered withdrawn. All right, arraign the accused." The demands of
orderly procedure require that a judge of a court of record must ensure that actions on motions must not
be left to conjecture but must, in a manner of speaking, be done in black and white.

2. Considering that he had been arraigned — which both the parties and the court thought that the
same was for both cases — petitioner was not required to appear at the trial on 8 and 9 April 1985. While
it may be true that he has the right to be present at every stage of the proceedings, i.e., from the
arraignment to the promulgation of judgment, he can waive his presence. The second sentence of
paragraph (2), Section 14, Article III of the 1987 Constitution provides as follows:jgc:chanrobles.com.ph
"However, after arraignment, trial may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is unjustifiable." 20

Section 1 (c), Rule 115 of the Rules of Court provides, in part, as follows:jgc:chanrobles.com.ph

". . . The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in
his bail bond, unless his presence is specifically ordered by the court for purposes of identification. The
absence of the accused without any justifiable cause at the trial on a particular date of which he had notice
shall be considered a waiver of his right to be present during that trial."cralaw virtua1aw library

While Section 2(c), Rule 114 of the Rules of Court, on the different conditions attached to a bail bond,
provides:chanrob1es virtual 1aw library

x x x

"(c) The failure of the accused to appear at the trial without justification despite due notice shall be
deemed an express waiver of his right to be present on the date specified in the notice. In such case, the
trial may proceed in absentia:"

Having failed to appear on 8 April 1985 despite due notice, and considering that on said date the urgent
motion for resetting had not yet been received by the court, respondent Judge could not be faulted for
believing that petitioner’s non-appearance was unjustified. Hence, a hearing in absentia was proper under
the aforequoted provision of the Constitution and Sections 2(c) and 1(c) of Rules 114 and 115,
respectively, of the Rules of Court.chanrobles law library

However, respondent Judge gravely abused his discretion when he ordered the forfeiture of the bond and
required the bonding company to show cause why no judgment should be rendered against it for the
amount of the bond. One other condition for the granting of bail, set forth in Section 2(b), Rule 114 of the
Rules of Court, is that the accused shall appear before the proper court whenever so required by the court
or the rules of Court.

A bail bond may be forfeited only in instances where the presence of the accused is specifically required
by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the
court on a given date, the accused fails to appear in person as so required. 21 There is no showing that
the court had specifically required the bonding company to produce the body of the petitioner on 8 and
9 April 1985. Moreover, since Criminal Cases Nos. 3890 and 3892, which involve two (2) checks with a face
value of P3,000.00 each, were merely for the violation of Batas Pambansa Blg. 22 which imposes a penalty
of "imprisonment of not less than thirty (30) days but not more than one (1) year or by a fine of not leas
than but not more than double the amount of the check which fine shall in no case exceed Two Hundred
Thousand Pesos, or both such fine and imprisonment at the discretion of the court," the presence of the
accused at the hearing on 8 and 9 April 1985 was not indispensable.

Under the Rules of Court, the accused has to be present:chanrob1es virtual 1aw library

(a) at the arraignment pursuant to paragraph (b), Section 1, Rule 116;

(b) at the promulgation of judgment, except when conviction is for a light offense, in which case the
judgment may be pronounced in the presence of his counsel or representative pursuant to Section 6 of
Rule 120, or unless promulgation in absentia is allowed under the third paragraph of said section; and

(c) when the prosecution intends to present witnesses who will identify the accused. 22

Before the advent of the 1985 Rules on Criminal Procedure, the accused did not have to be present at the
arraignment if the charge was for a light offense triable by the then justice of the peace or any other
inferior court of similar jurisdiction. Also, his plea may be entered on his behalf by his attorney if the
charge is for a misdemeanor or a minor offense in which the penalty that may be imposed is a fine not
exceeding P200.00. 23

3. Petitioner, however, is not fully justified in claiming that he was denied his right to due process
by the respondent Judge. In the first place, it is not true that petitioner was arraigned over his objection.
The transcript of the proceedings on 7 February 1985 24 reveals that his counsel merely asked for "enough
time to confront the accused and advise him of what to plea (sic) in case the arraignment will push
through" for the reason that it was his initial appearance. He asked for a deferment of the arraignment
for ten (10) days. The court, however, gave him until 10:00 o’clock that morning to prepare for the
arraignment, to which he agreed. When the cases were called again at 10:00 o’clock that morning, the
following transpired:jgc:chanrobles.com.ph

"ATTY. CARLOS MARCOS

Your Honor please, before the arraignment, may I make it of record that the Fiscal just have (sic) today
turned over the information which is for reading by the Clerk of Court.chanrobles law library : red

COURT

All right, arraign the accused now in the two cases?

NOTE — Information was read to the accused after which . . .

COURT (To accused)

What is your plea?

ACCUSED

Not guilty, Your Honor.

ATTY. CARLOS MARCOS

Your Honor please, the reading of the information of the other case, may we pray that it be waived and
the accused will enter the plea of not guilty?

COURT:chanrob1es virtual 1aw library

So, what is the pleasure now of the defense?

ATTY. C. MARCOS

Considering that the accused’s arraignment has just been terminated, may we be given ample time to
prepare the defense of our case, Your Honor.
COURT

All right, you agree on the date?

COURT

ORDER

In the above-entitled two cases, the accused assisted by counsel, Atty. Carlos Marcos, pleaded not guilty
upon being arraigned.

Let the joint trial of these cases be set on April 8 at 2:30 p.m. and April 9, 1985, at 8:30 a.m.

Notified in open court are Asst. City Fiscal Lorenzo Lopena, Atty. Carlos Marcos, and the accused.

Notify the private prosecutor, Atty. Paulino G. Clarin.

SO ORDERED."25cralaw:red

It will, however, be noted that insofar as the second case, Criminal Case No. 3892, is concerned, the court
made no ruling on, the manifestation and offer by petitioner’s counsel that the reading of the information
be waived and a plea of not guilty be entered. The petitioner was neither made to confirm the
manifestation nor directed to personally make the plea. There was, therefore, no valid arraignment in
Criminal Case No. 3892 Section 1(b), Rule 116 of the Rules of Court, as amended, requires the accused to
personally enter his plea.

In the second place, the motion to reset the hearing was a mere subterfuge to obtain a postponement of
and delay the proceedings. Petitioner and his counsel were notified in open court about the 8 and 9 April
1985 hearing on 7 February 1985. Having agreed to that setting, counsel in effect certified that he had no
prior commitment on those dates and he was thereby bound to give priority to the same, unless events
of greater importance or of a more serious nature requiring his presence, supervened. The only reason he
gave for the notice was that he "has a previous legal commitment in Manila needing his personal
attention." 26 He did not elaborate on what that legal commitment was. If he indeed had such a
commitment and his conformity to the 8 and 9 April 1985 setting was a mistake, he should have
immediately filed a motion for the resetting of hearing. It hardly needs to be said that either the so-called
"legal commitment" in Manila — whatever that could have been — was made sometime after 7 February
1985 or that it never existed at all. In the motion to reconsider the 8 April 1985 Order, petitioner’s counsel
did not bother to explain the importance of that commitment or convince the court that he actually made
the trip to Manila.chanrobles lawlibrary : rednad

Thirdly, counsel for petitioner should not have presumed that the motion, which he prepared and sent by
registered mail only on 29 March 1989, would reach the court and be granted before 8 April 1985. He
knew, or ought to know that the granting of motions for postponement in criminal cases is left to the
sound discretion of the Court — a rule which has been steadfastly adhered to since United States v.
Lorenzana 27 and which this Court more explicitly expressed in United States v. Ramirez 28 in this
wise:jgc:chanrobles.com.ph

"Applications for continuances are addressed to the sound discretion of the court. In this respect, it may
be said that the discretion which the trial court exercises must be judicial and not arbitrary. It is the
guardian of the rights of the accused as well as those of the people at large, and should not unduly force
him to trial, nor for light causes jeopardize the rights or interests of the public. Where the court conceives
it to be necessary for the more perfect attainment of justice, it has the power upon the motion of either
party to continue the case. But a party charged with a crime has no natural or inalienable right to a
continuance."cralaw virtua1aw library

This rule was succinctly stated in Section 2 of Rule 119 before its amendment by the 1985 Rules of Criminal
Procedure as follows:jgc:chanrobles.com.ph

"SEC. 2. Continuance or postponement of the trial. — The court on the application of either party or on
its own motion, may in its discretion for good cause postpone the trial of the case for such period of time
as the ends of justice and the right of the defendant to a speedy trial require." chanrobles virtual lawlibrary

As amended, it now reads:jgc:chanrobles.com.ph

"SEC 2. Continuance trial until terminated; postponements. — Trial once commenced shall continue from
day to day as far as practicable until terminated; but for good cause, it may be postponed for a reasonable
period of time."cralaw virtua1aw library
Finally, the urgent motion for resetting was a mere scrap of paper. As earlier noted, it does not contain a
notice of hearing to the Prosecution; all it had was a mere request, addressed to the Clerk of Court, that
it be submitted for the consideration and approval of the court immediately upon his receipt thereof.
There was, therefore, a clear violation of Section 5, Rule 15 of the Rules of Court, which is also applicable
in motions for continuance in criminal cases. Said section provides as follows:jgc:chanrobles.com.ph

"SEC. 5. Contents of notice. — The notice shall be directed to the parties concerned, and shall state the
time and place for the hearing of the motion."cralaw virtua1aw library

In Bank of the Philippine Islands v. Far East Molasses Corp., 29 this Court explicitly ruled that a motion
that does not contain a notice of hearing is but a mere scrap of paper, it presents no question which merits
the attention and consideration of the court. It is not even a motion for it does not comply with the rules
and hence, the clerk has no right to receive it.

Since on 8 April 1985 the motion for resetting had not yet been received by the court, the respondent
Judge committed no error, much less abuse of discretion, in allowing the prosecution to present, ex parte,
its evidence and rest its case immediately thereafter in Criminal Case No. 3890; the same, however,
cannot be said about Criminal Case No. 3892 for, as earlier mentioned, no valid arraignment had as yet
been conducted thereon. Petitioner should blame no one else but his counsel. Nonetheless, a client is
bound by the acts, even mistakes of his counsel in the realm of procedural technique; however, if the
former is prejudiced by the latter’s negligence or misconduct, he may recover damages. 30

However, respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when
he capriciously and arbitrarily considered Criminal Cases Nos. 3890 and 3892 — more particularly the
latter wherein there was no valid arraignment — submitted for decision after the prosecution rested its
case on 8 April 1985. He thus blatantly ignored and disregarded Section 2(c), Rule 114 and Section 1(c),
Rule 115 of the Rules of Court which merely consider the accused’s non-appearance during trial — 8 April
1985, in this case — as a waiver of his right to be present for trial on such date only and not for the
succeeding trial dates. This is quite clear from Section 1(c) of Rule 115 which further provides:chanrobles
virtual lawlibrary

". . . The absence of the accused without any justifiable cause at the trial on a particular date of which he
had notice shall be considered a waiver of his right to be present during that trial. When an accused under
custody had been notified of the date of the trial and escapes, he shall be deemed to have waived his
right to be present on said date and on all subsequent trial dates until custody is regained." (Emphasis
supplied)
Thus, with respect to an accused who is not in custody, his non-appearance constitutes a waiver of his
right to be present only for the trial set for the particular date of which he had notice. Upon the other
hand, such non-appearance by an accused in custody and who later escapes is considered a waiver of the
right on such date and all subsequent trial dates until such custody is regained.

The hearing on 8 April 1985 was actually the initial hearing for the two (2) cases, albeit erroneously for
the second due to the infirmity referred to earlier, it was likewise for the purpose of receiving the evidence
for the prosecution. It cannot be fairly presumed that said setting was also for the purpose of presenting
the accused’s evidence considering that neither the court nor the parties knew in advance the number of
cases to be tried on those dates and the length of the direct and cross examinations of the witnesses.
Besides, even assuming for the sake of argument that the prosecution could rest its case on 8 April 1985,
the defense could have still filed a demurrer to evidence under Section 15, Rule 119 of the Rules of Court,
which would have necessarily meant a deferment of the reception of the evidence for the accused.

The order of the respondent Judge declaring the two (2) cases submitted for decision is not only a violation
of Section 1(c) of Rule 115 but is also a pronouncement that the petitioner had waived his constitutional
right to be heard by himself and counsel, 31 and present his evidence. This is certainly lamentable for he
thus allowed his court to breach one of its highest, duties — the protection of the citizen and the
maintenance of his constitutional rights. 32

While constitutional rights may be waived, 33 such waiver must be clear and must be coupled with an
actual intention to relinquish the right. 34 There is nothing on record to suggest conduct on the part of
the petitioner from which it may be reasonably inferred that he had waived his right to submit his
evidence. On the contrary, his counsel’s motion for resetting requested specifically for the hearing of the
cases on 13 and 14 May 1985.

WHEREFORE, judgment is hereby rendered:chanrob1es virtual 1aw library

1. SETTING ASIDE that portion of the Order of respondent Judge of 3 April 1985 forfeiting the bond
posted by petitioner’s bondsmen and declaring Criminal Cases Nos. 3892 and 3892 submitted for decision;

2. DECLARING that there was no valid arraignment in Criminal Case No. 3892;chanrobles law library
: red

3. UPHOLDING the validity of the ex-parte reception of the prosecution’s evidence on 8 April 1985
insofar as Criminal Case No. 3890 is concerned and DECLARING petitioner as having waived his right to
cross-examine the witness presented by the prosecution in said case;
4. SETTING ASIDE the Notice of Promulgation issued on 3 May 1985; and

5. DIRECTING the court below to arraign the petitioner in Criminal Case No. 3892, set the case for
trial for the reception of the evidence for the prosecution, hold a joint hearing of both cases for the
reception of the evidence for the petitioner and, in due course, render judgment thereon.

No pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr. Bidin and Romero, JJ., concur.

Feliciano, J., is on leave.