Republic of the Philippines

SUPREME COURT
MUNICIPAL TRIAL COURT
10th Judicial Region
Quezon, Bukidnon

PEOPLE OF THE PHILIPPINES Criminal Case No. 4123-4128

Complainant ,

-versus-
FOR: VIOLATION OF BP 22
DANILO C. ABARCA
Accused.
x--------------------------------------x

OMNIBUS MOTION
QUASH OR LIFT WARRANT OF ARREST
(WITH MOTION FOR REINVESTIGATION AND
MOTION TO SUSPEND THE ARRAIGNMENT AND PRE-
TRIAL OF DANILO ABARCA)

COMES NOW, the ACCUSED through the undersigned counsel and unto this
Honorable Court, respectfully avers:

PREFATORY STATEMENT

Human rights enjoy a higher preference in the hierarchy of rights

than property rights, demanding that due process in the
deprivation of liberty must come before its taking and not after.
It must be stressed, that the Court took the extraordinary
step of annulling findings of probable cause either to prevent
the misuse of the strong arm of the law or to protect the orderly
administration of justice. The constitutional duty of this Court
in criminal litigation is not only to acquit the innocent after
trial but to insulate, from the start, the innocent from

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Motion to Quash Warrant- Danilo Abarca
 unfounded charges. For the Court is aware of the strains of a
criminal accusation and the stresses of litigation which should
not be suffered by the clearly innocent. The filing of an
unfounded criminal information in court exposes the innocent
to severe distress especially when the crime is not billable. Even
an acquittal of the innocent will not fully bleach the dark and
deep stains left by a baseless accusation for reputation once
tarnished remains tarnished for a long length of time. The
expense to establish innocence may also be prohibitive and can
be more punishing especially to the poor and the
powerless. Innocence ought to be enough and the business of
this Court is to shield the innocent from senseless suits right
from the start.

THE PARTIES

The complainant, ERLINDA A. ABALDE, a resident of Barangay Butong,

Municipality of Quezon, Province of Bukidnon.

The accused, DANILO ABARCA owner of Danny’s Car Aircon and

Refrigeration Services, Tandga, Surigao del Sur. The accusedcan be served
with notices and processes through:

MAHINAY LAW OFFICE

187 Dominica St., Solariega
Talomo, Davao City
Atty. Gilda S. Mahinay
+63-906-624-8650/+63-919-863-9226
Telephone No.082-285-3710
Email ad: jbci98@yahoo.com

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Motion to Quash Warrant- Danilo Abarca
 FACTUAL ANTECEDENTS

1. On March 15, 2015, Prosecutor Rommel M. Alonto issued a Resolution

on NPS Docket No. X-01-INV-15-A-022 for Violation of BP 22. In her
Resolution she said:

“ This resolves the complaint filed by Erlinda Abalde

against Danilo Abarca for Violation of BP 22. Xxxx

From the following evidence submitted by the

complainant to wit: Complaint Affidavit with
Annexes A to F and Demand letter marked as Annex
G, the undersigned prosecutor finds probable cause
to charge respondent DANILO ABARCA for 6 counts of
Violation of BP 22.

WHEREFORE, premises considered, it is respectfully

recommended that an information for 6 counts of
Violation of BP 22 be filed against Danilo Abarca.

2. The herein accused never received the Resolution from the Office of
the Provincial Prosecutor. Had the herein accused received the said
Resolution, it would have filed a Resolution as mandated by the
National Prosecutions Manual, which says:

SEC. 56. Motion for reconsideration. - A motion for

reconsideration may be filed within ten (10) days
from receipt of the resolution. The motion shall be
verified, addressed to the Provincial/City Prosecutor
or the Chief State Prosecutor, and accompanied by
proof of service of a copy thereof on the opposing
party and must state clearly and distinctly the
grounds relied upon in support of the motion.

A motion for reconsideration is still part of due

process in the preliminary investigation. The denial
thereof is a reversible error as it constitutes a
deprivation of the respondent's right to a full
preliminary investigation preparatory to the filing of
the information against him. The court therefore may not
proceed with the arraignment and trial pending resolution of
the motion for reconsideration.

3. On February 27, 2015, Prosecutor Rommel Alonto with the approval

filed the information in this case accusing DANILO ABARCA for

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Motion to Quash Warrant- Danilo Abarca
 Violation of BP 22 and recommended Php 2,000 as bail bond for each
count.

4. This led to the arrest of Danilo Abarca in Criminal Case No. 4123-4128
entitled People of the Philippines vs. Danilo Abarca, for violation of
BP 22. On April 22, 2019, Danilo Abarca posted a cash bond in the
amount of Php 15,000.00 with the Office of the Clerk of Court and
scheduled his arraignment and pre-trial on May 29, 2019 at 8:30 in
the morning. This incident paved the way for the accused to get a
copy of the information and other supporting documents from this
Honorable Court;

5. We have discovered that the Investigating Prosecutor Alonto filed the

information of the above-entitled case attaching the following:

a. the Resolution which was never received by the accused;

b. the information

6. Further, no proof that there was issuance of subpoena to the herein

accused which is necessary for the conduct of preliminary
investigation;

7. That the accused believes that if they will be given an opportunity to

answer the charges against them, the resolution could have been
different;

8. The National Prosecutor’s Manual is every explicit that issuance of

subpoena is indispensable.

SEC. 13. Initial/ action on the Complaint.- Within ten (10)

days after the filing of the complaint, the Investigating
Prosecutor shall either dismiss the same if he finds no
ground to continue with the inquiry, or issue a subpoena

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Motion to Quash Warrant- Danilo Abarca
 to the respondent, attaching thereto a copy of the
complaint together with the affidavits of witnesses and
other supporting documents.

SEC. 16. Service of subpoena in preliminary investigation.

- To expedite the conduct of a preliminary investigation,
the following guidelines shall be observed in the service of
subpoenas-

a. Service of subpoena and all papers/documents required to

be attached thereto shall be personal service by regular
process servers. In their absence, the cooperation of the
Provincial City/Municipal Station Commanders of the
Philippine National Police (PNP) may be requested for the
purpose.

9. The Information filed by Prosecutor Alonto contains a Certification

that “he conducted a preliminary investigation in this case in
accordance with law and that the complainant was personally
examined and on the basis of the sworn statements and other
evidence presented, there is a reasonable ground to believe that the
crime charged has been committed and that the accused is probably
guilty thereof;”.

10. The honorable judge issued a warrant of arrest to the herein

accused for 6 counts. Parenthetically, there was never a resolution
received by the above-named accused nor they were issued subpoena
before the Office of the Provincial Prosecutor.

11. Accused was never served a copy of the complaint filed against
him. The records will show that he did not receive a copy of the
subpoena nor was it received by a duly authorized representative.
Accused was therefore, not given an opportunity to be heard
and effectively deprived of his constitutional right to due process.

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Motion to Quash Warrant- Danilo Abarca
 BLATANT AND PALPABLE
PROCEDURAL LAW

A. VIOLATION OF BP 22 IS UNDER
THE RULES ON SUMMARY
PROCEDURES WHERE THERE IS
NO ISSUANCE OF WARRANT OF
ARREST

Violation of BP 22 is covered by the Rules on Summary Procedure.

Under Section 16 of the said Rules, the court shall not order the arrest
of the accused except for failure to appear whenever required. In
sum, the court in cases covered by the Rules On Summary Procedure
such as violation of BP Blg. 22 shall not issue warrant of arrest based
on the finding of probable cause upon filing of information. Thus, bail
for his temporary release is not required since he will not be arrested
in the first place.

The bail recommended by the public prosecutor is not binding to the

trial courts since they are tasked to obey the Rules promulgated by
the Supreme Court. If procedural rules made by the highest tribunal
of land are mandating the non-issuance of a warrant of arrest in BP
Blg. 22 and crimes punishable by fine only, the trial courts as loyal
soldiers of the judiciary must comply. The recommendation of the
fiscal pursuant to the said DOJ guidelines requiring bail for the
temporary release of the accused cannot be used by the trial courts
as a basis for issuing warrant of arrest in cases where the judicial
rules disallow it. It goes without saying that the Rules of Criminal
Procedure and the Rules on Summary Procedure are more superior
than DOJ circulars.

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Motion to Quash Warrant- Danilo Abarca
 B. ARTICLE III (SECTIONS 1 AND 14
PAR 1) OF THE 1987 PHILIPPINE
CONSTITUTION WAS VIOLATED

Justice Melo once said in Secretary of Justice vs. Judge Lantion, et al

(G.R. No. 139465, January 18, 2000):

The individual citizen is but a speck of particle or

molecule vis-à-vis the vast and overwhelming powers of
government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of
Rights which shield him in times of need. The Court is now
called to decide whether to uphold a citizen's basic due
process rights, or the government's ironclad duties under a
treaty. The bugle sounds and this Court must once again act
as the faithful guardian of the fundamental writ.

Section 1 of Article III of the 1987 Constitution provides, to wit:

“No person shall be deprived of life, liberty,

or property without due process of law
xxx…xxx.”

Further, Section 14(1) of the same article states, thus:

“No person shall be held to answer for a

criminal offense without due process of
law.”

The cardinal precept is that where there is a violation of basic

constitutional rights, courts are ousted from their jurisdiction. The
violation of a party’s right to due process raises a serious jurisdictional
issue which cannot be glossed over or disregarded at will.

Where the denial of the fundamental right of due process is apparent,

a decision rendered in disregard of that right is void for lack of
jurisdiction. Suffice it to say that the three warrant of arrest issued

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Motion to Quash Warrant- Danilo Abarca
 against the herein accused are VOID AB INITIO for being violative to the
constitutional rights of the accused.

Well-settled is the rule that the essence of due process is simply an

opportunity to be heard or, as applied to administrative proceedings, an
opportunity to explain ones side or an opportunity to seek a
reconsideration of the action or ruling complained of. Hence, even if
administrative tribunals exercising quasi-judicial powers are not strictly
bound by procedural requirements, they are still bound by law and
equity to observe the fundamental requirements of due process. In the
application of the principle of due process, what is sought to be
safeguarded is not lack of previous notice but the denial of the
opportunity to be heard.

The case for violation of BP 22 was filed by the Investigating Fiscal even
without the conduct of preliminary investigation. The accused never
received a subpoena from the Office of the Provincial Prosecutor. The
preliminary investigation was flawed from the very beginning when the
Fiscal did not issue the subpoena and wait for the counter-affidavit of
the accused. He was completely deprived of the opportunity to be heard
on the charges against him and was irrefragably denied due process.

C. NO PRELIMINARY INVESTIGATION
WAS CONDUCTED IN THIS CASE IN
SERIOUS VIOLATION OF THE
CONSTITUTIONAL RIGHT TO DUE
PROCESS OF ACCUSED

In People v. Oandasa, 25 SCRA 277, the Supreme holds:

“The right to a preliminary investigation is a

statutory grant, and to withhold it would be to
transgress constitutional due process.”

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Motion to Quash Warrant- Danilo Abarca
 However, in order to satisfy the due process clause it is not enough that
the preliminary investigation is conducted in the sense of making sure
that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important,
it is a part of the guarantees of freedom and fair play which are
birthrights of all who live in our country. It is, therefore, imperative
upon the fiscal or the judge as the case may be, to relieve the accused
from the pain of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable
cause exists to form a sufficient belief as to the guilt of the accused.

As held in Mercado v. Court of First Instance of Rizal, 116 SCRA 93, it

holds:

The judge or fiscal, therefore, should not go on with the

prosecution in the hope that some credible evidence might
later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to
uphold. It bears repeating that the judiciary lives up to its
mission by vitalizing and not denigrating constitutional
rights. So it has been before. It should continue to be so.

D. PRELIMINARY INVESTIGATION IS
A COMPONENT OF PROCEDURAL
DUE PROCESS WHICH COULD
NOT BE DISPENSED WITH

Due process is comprised of two components -- substantive due process

which requires the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty, or property, and procedural due
process which consists of the two basic rights of notice and hearing,
as well as the guarantee of being heard by an impartial and
competent tribunal.

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Motion to Quash Warrant- Danilo Abarca
 One component of procedural due process is the right to preliminary
investigation, a procedure enshrined in Section 3, Rule 112 of the
Revised Rules of Criminal Procedure, to wit:

“Sec.3. Procedure.- Except as provided in section 7 hereof,

no complaint or information for an offense cognizable by
the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following
manner:

(a) xxx….

(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss the same if he
found no ground to continue with the inquiry, or issue
subpoena to the respondent, attaching thereto a copy of
the complaint, affidavits and other supporting
documents. Within ten (10) from receipt thereof, the
respondent shall submit counter-affidavits and other
supporting documents. He shall have the right to examine
all other evidence submitted by the complaint.”

As clearly provided by the above cited provision, the investigating

officer, that is the prosecutor, must issue a subpoena to the respondent
to a criminal complaint should he find ground to continue with the
inquiry. Hence, at this early stage of the proceeding, the respondent is
already accorded the right to be informed of the criminal complaint
against him. The significance of the right to preliminary investigation as
a key component of an accused’s right to due process has been upheld
by the Supreme Court in a long line of cases. “This procedure (in Section
3, Rule 112 of the Rules of Criminal Procedure) is to be observed in
order to assure that a person undergoing such preliminary investigation
will be afforded due process”. In a more recent case, the Supreme
Court likewise held:

“A preliminary investigation is the crucial sieve in the

criminal justice system which spells for an individual the
difference between months if not years of agonizing trial and
possibly jail term, on the one hand, and peace of mind and
liberty, on the other hand. Thus, we have characterized the

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Motion to Quash Warrant- Danilo Abarca
 right to a preliminary investigation as not “a mere formal or
technical right” but a “substantive” one, forming part of due
process in criminal justice.

Not only that, the Supreme Court in these cases emphasized that the
denial of the right to preliminary investigation, being a key component
of the accused’s right to due process, invalidates the proceedings had
on a case. In the case of Secretary of Justice v. Lantion the Supreme
Court also held, to wit:

In a preliminary investigation which is an administrative

investigatory proceeding, Section 3, Rule 112 of the Rules of
Court guarantees the respondent's basic due process rights,
granting him the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the right to
submit counter-affidavits and other supporting documents within
ten days from receipt thereof. Moreover, the respondent shall
have the right to examine all other evidence submitted by the
complainant.” x x x

“True to the mandate of the due process clause, the basic rights
of notice and hearing pervade not only in criminal and civil
proceedings, but in administrative proceedings as well. Non-
observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case affecting
their interests, and upon notice, they may claim the right to
appear therein and present their side and to refute the position of
the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p.
64).

It is well to emphasize the stern reminder of the Supreme Court in the

case of Salonga vs. Cruz Pano, supra, when it held:

“Infinitely more important that conventional adherence to

general rules of criminal procedure is respect for the
citizen’s right to be free not only from arbitrary arrest and
punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is
corrupted if a person is carelessly included in the trial of
around forty persons when on the very face of the record no
evidence linking him to the alleged conspiracy exists.”

In light of the clear lapse of the public prosecutor himself that no

preliminary investigation was conducted against the herein accused, one

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Motion to Quash Warrant- Danilo Abarca
 comes to the inevitable conclusion that accused’s right to due process
has been gravely, seriously, and massively violated. Hence, the
proceedings – starting from the filing of the information, which led to
the issuance of warrant of arrest of herein accused are all null and
void.

CONCLUSION
A preliminary investigation is the crucial sieve in the criminal
justice system which spells for an individual the difference
between months if not years of agonizing trial and possibly
jail term, on the one hand, and peace of mind and liberty,
on the other. Thus, we have characterized the right to a
preliminary investigation as not a mere formal or technical
right but a substantive one, forming part of due process in
criminal justice. After all, the purpose of preliminary
investigation is not only to determine whether there is
sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent therein is
probably guilty thereof and should be held for trial; it is just
as well for the purpose of securing the innocent against
hasty, malicious and oppressive prosecution, and to protect
him from an open and public accusation of a crime, from the
trouble, expense and anxiety of a public trial. More
importantly, in the appraisal of the case presented to him
for resolution, the duty of a prosecutor is more to do justice
and less to prosecute.

PRAYER

WHEREFORE, PREMISES CONSIDERED, in the interest of justice and to

uphold the rule of law, the herein accused respectfully and humbly prays
that the Warrant of Arrest issued against the accused BE QUASHED/
RECALLED; and that this case BE OUTRIGHTLY DISMISSED.

Other forms of relief that are just and equitable under the premises are
likewise prayed for.

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Motion to Quash Warrant- Danilo Abarca
RESPECTFULLY SUBMITTED. Davao City (for Quezon, Bukidnon) May 6, 2019.

MAHINAY LAW OFFICE

187 Dominica St., Solariega
Talomo, Davao City
Atty. Gilda S. Mahinay, MAEcon
+63-906-624-8650/+63-919-863-9226
Telephone No.082-285-3710
Email ad: jbci98@yahoo.com

By:

ATTY. GILDA S. MAHINAY, MA

. Econ
Counsel for Danilo Abarca
187 Dominica St. Solariega, Puan, Talomo,Davao City
PTR No. 2470304/January 8, 2019
IBP No. 068212/ January 10,2019
Roll No. 70474
MCLE EXEMPTED

NOTICE OF HEARING

THE BRANCH CLERK OF COURT

Municipal Trial Court
Quezon, Bukidnon

Greetings!

Please submit the foregoing motion for the kind consideration and approval of the
Honorable Court upon receipt hereof sans appearance of counsel.

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Motion to Quash Warrant- Danilo Abarca
 ATTY. GILDA S. MAHINAY, MA Econ.
Counsel for Danilo Abarca

copy furnished:
The Provincial Prosecutor
Province of Bukidnon

Erlinda A. Abalde
Brgy. Butong, Quezon
Bukidnon

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Motion to Quash Warrant- Danilo Abarca