RULE

112 PRELIMINARY
INVESTIGATION

(01) PEOPLE vs. YECYEC
Definition and purpose of
Preliminary investigation
FACTS:

Pioneer is engaged in the
buying and selling of rubber.
Sison was the supervisor of
Pioneer's rubber processing
plant, who was tasked, among
other things, with the
acquisition of rubber coagulum
and rubber cup lumps in
Bukidnon.
Sison bought rubber cup lumps
which were alleged to be stolen
from FARBECO Multi-purpose
cooperative. Such were stored
inside his fenced premises.
At a certain date, respondent
Yecyec (manager of the
FARBECO) together with co-
respondents Yecyec demanded
that Sison give them the rubber
lumps/coagulum he bought
from Edon (seller). When Sison
asked if they had any written
authority and/or Court order
authorizing them to take the
rubber cup lumps from his
house, Yecyec answered in the
negative. For said reason, Sison
refused to accede to their
demands.
Yecyec ordered his men to
seize the items. Sison warned
them that they will be reported
to the police once they forced
their way in. Sison then left to
fetch the police and barangay
officials.

Yecyecs men proceeded to

destroy the fence of Sison's
residence to gain entrance to
the premises and were able to
take the items.
Pioneer, through Sison, thus
filed an affidavit-complaint
against the respondents before
the Philippine National Police
(PNP). Acting favorably on the
complaint, the Chief Police of
the PNP of Talakag, Bukidnon,
filed a criminal complaint
against the private respondents
for Robbery with Intimidation
of Persons before the Municipal
Circuit Trial Court (MCTC).
MCTC: found probable cause to
hold respondents liable for
Robbery with Intimidation of
Persons.
Provincial Prosecutor: The
respondents should only be
liable for theft. The mere
possession by some of the
respondents of a bolo and a
shotgun did not amount to
intimidation
of
persons
considering the bolo or
shotgun was not used to
threaten any person.
RTC: the evidence on record
failed to establish probable
cause absent two (2) of the
essential elements of the crime
of Theft and dismissed the case.
It must be noted that the
respondents have instituted a
criminal action for a fencing
case against the complainant.
The second element of
Theft,"That said property
belongs to another" is absent.
xxx The third element of Theft
i.e.,: "That the taking be done

with intent to gain" is absent.

This court holds otherwise. If a
person takes personal property
from another believing it to be
his own, the presumption of
intent to gain is rebutted and,
therefore, he is not guilty of
Theft.
CA: Affirmed dismissal of the
charges
against
the
respondents.
Hence
this
Petition.

ISSUE:
WON the RTC and the CA erred in
dismissing the information against
the respondents for the crime of
Theft for want of probable cause.

HELD: YES

In Crespo v. Mogul, the Court held that
xxx the institution of a criminal action
depends upon the sound discretion of
the fiscal. He may or may not file the
complaint or information, follow or
not follow that presented by the
offended party, according to whether
the evidence, in his opinion, is
sufficient or not to establish the guilt
of the accused beyond reasonable
doubt. The reason for placing the
criminal prosecution under the
direction and control of the fiscal is to
prevent malicious or unfounded
prosecutions by private persons.
The primary objective of a preliminary
investigation is to free respondent
from the inconvenience, expense,
ignominy and stress of defending
himself/herself in the course of a
formal trial, until the reasonable
probability of his or her guilt in a
more or less summary proceeding by
a competent office designated by law
for that purpose. Secondarily, such

summary proceeding also protects the

state from the burden of the
unnecessary expense an effort in
prosecuting alleged offenses and in
holding trials arising from false,
frivolous or groundless charges.
Such investigation is not part of the
trial. A full and exhaustive
presentation of the parties' evidence is
not required, but only such as may
engender a well-grounded belief than
an offense has been committed and
that the accused is probably guilty
thereof. By reason of the abbreviated
nature of preliminary investigations, a
dismissal of the charges as a result
thereof is not equivalent to a judicial
pronouncement of acquittal. Hence, no
double jeopardy attaches.
The determination of probable cause
to hold a person for trial must be
distinguished from the determination
of probable cause to issue a warrant of
arrest, which is a judicial function. The
judicial determination of probable
cause, is one made by the judge to
ascertain whether a warrant of arrest
should be issued against the accused.
The judge must satisfy himself that
based on the evidence submitted,
there is a necessity to place the
accused under custody in order not to
frustrate the ends of justice. If the
judge finds no probable cause, the
judge cannot be forced to issue the
arrest warrant.
As a general rule, if the information is
valid on its face and there is no
showing of manifest error, grave
abuse of discretion or prejudice on the
part of the public prosecutor, the
court should not dismiss it for lack of
"probable cause," because evidentiary
matters should first be presented and
heard during the trial. The functions
and duties of both the trial court and

the public prosecutor in "the proper

scheme of things" in our criminal
justice system should be clearly
understood.
WHEREFORE, the petition is
GRANTED. The June 27, 2008 Decision
of the Court of Appeals in CA-G.R. SP
No. 00489 is hereby REVERSED and
SET ASIDE. The Information against
the above-named respondents is
hereby ordered REINSTATED. The
case is REMANDED to the Regional
Trial Court, Manolo Fortich, Bukidnon,
which is ordered to proceed with the
case with dispatch.

(02) PESTILLOS vs. GENEROSO
The purpose of a preliminary
investigation is to determine
whether a crime has been
committed and whether
there is a probable cause to
believe that the accused is
guilty of the crime and
should be held for trial.
FACTS:

An altercation ensued between

the petitioners and Atty.
Generoso in Barangay Holy
Spirit, Quezon City where the
parties reside.

Atty. Generoso called the

Central Police District, Station
6 (Batasan Hills Police Station)
to report the incident. Acting
on this report, the Desk Officer
dispatched SP02 Javier to go to
the scene of the crime and to
render assistance.

SP02 Javier, together with

augmentation personnel from
the Airforce, arrived at the
scene of the crime less than one
hour after the alleged

altercation and they saw Atty.

Generoso badly beaten.
Atty. Generoso then pointed to
the petitioners as those who
mauled him. This prompted the
police officers to "invite" the
petitioners to go to Batasan
Hills Police Station for
investigation.
The petitioners went with the
police officers to Batasan Hills
Police Station. At the inquest
proceeding, the City Prosecutor
of Quezon City found that the
petitioners stabbed Atty.
Generoso with a bladed
weapon.
Atty.
Generoso
fortunately survived the attack
The petitioners filed an Urgent
Motion for Regular Preliminary
Investigation on the ground
that they had not been lawfully
arrested. They alleged that no
valid warrantless arrest took
place since the police officers
had no personal knowledge
that they were the perpetrators
of the crime. They also claimed
that they were just "invited" to
the police station. Thus, the
inquest
proceeding
was
improper, and a regular
procedure for preliminary
investigation should have been
performed pursuant to Rule
112 of the Rules of Court.
The RTC issued its order
denying the petitioners' Urgent
Motion for Regular Preliminary
Investigation. The
court
likewise denied the petitioners'
motion for reconsideration.
The CA saw no merit in the
petitioners' argument that the
order denying the Urgent

Motion for Regular Preliminary

Investigation is void for failure
to clearly state the facts and the
law upon which it was based,
pursuant to Rule 16, Section 3
of the Revised Rules of Court.
The CA found that the RTC had
sufficiently explained the
grounds for the denial of the
motion.



ISSUE:
Won the petitioners were validly
arrested without a warrant
WON the petitioners were lawfully
arrested when they were merely
invited to the police precinct.
WON the order denying the motion for
a preliminary investigation is void for
failure to state the facts and the law
upon which it was based.

HELD: We find the petition
unmeritorious and thus uphold the
RTC
Order.
The
criminal
proceedings against the petitioners
should now proceed.

Considering the circumstances of the
stabbing, particularly the locality
where it took place, its occasion, the
personal circumstances of the parties,
and the immediate on-the-spot
investigation that took place, the
immediate and warrantless arrests of
the perpetrators were proper.

> the requirements of a warrantless
arrest are now summarized in Rule
113, section 5
> For purposes of this case, we shall
focus on Section 5(b) ("hot pursuit"
arrest) the provision applicable in
the present case

> In cases falling under paragraph (a)

and (b) , the person arrested without a
warrant shall be forth with delivered
to the nearest police station or jail and
shall be proceeded against in
accordance with section 7 of Rule 112.
> As presently worded, the elements
under Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure
are: first, an offense has just been
committed; and second, the arresting
officer has probable cause to
believe based on personal knowledge
of facts or circumstances that the
person to be arrested has committed
it.
> Probable cause under Section 5(b),
Rule 113 of the Revised Rules of
Criminal Procedure, is different from
probable cause in preliminary
investigations and the judicial
proceeding for the issuance of a
warrant of arrest
> The purpose of a preliminary
investigation is to determine
whether a crime has been
committed and whether there is
probable cause to believe that the
accused is guilty of the crime and
should be held for trial
> On the other hand, probable cause in
judicial proceedings for the issuance
of a warrant of arrest is defined as the
existence of such facts and
circumstances that would lead a
reasonably discreet and prudent
person to believe that an offense has
been committed by the person sought
to be arrested.

The term "invited" in the Affidavit of
Arrest is construed to mean as an
authoritative command
> After the resolution of the validity of
the warrantless arrest, the discussion
of the petitioners' second issue is

largely academic. Arrest is defined as

the taking of a person into custody in
order that he may be bound to answer
for the commission of an offense.
> Notwithstanding the term "invited"
in the Affidavit of Arrest, SP02 Javier
could not but have the intention of
arresting the petitioners following
Atty. Generoso' s account.

The Order denying the motion for
preliminary investigation is valid

> The RTC, in its Order dismissing the
motion, clearly states that the Court is
not persuaded by the evidentiary
nature of the allegations in the said
motion of the accused. Aside from lack
of clear and convincing proof, the
Court, in the exercise of its sound
discretion on the matter, is legally
bound to pursue and hereby gives
preference to the speedy disposition
of the case."
> We do not see any taint of
impropriety or grave abuse of
discretion in this Order. The RTC, in
resolving the motion, is not required
to state all the facts found in the
record of the case.

(03) TANDOC vs. RESULTAN

Preliminary Investigation;
Two stages

FACTS:

On October 1980, Petitioners

Tandoc et.al, filed before the

Office of the City Fiscal of San

Carlos
City,
Pangasinan
criminal complaints for the
crimes of Trespass to Dwelling
(TD), Serious Physical Injuries
(SPI), Less Serious Physical
Injuries (LSPI) and Grave
Threats
(GT)
against
Respondents Payopay et.al.
because of the incident
happened in the store and
house of the petitioners
wherein the respondents
allegedly entered the house of
petitioner Tandoc without
permission. While inside the
house, petitioner Tandoc and
the respondents had an
altercation which resulted to
the throwing of stones of the
respondents to petitioners
causing injuries to the latter.
(Petitioners Complaints)
Pending the resolution of the
complaint, Respondents also
filed a criminal complaint in
the City Fiscal against the
petitioners for the crimes of
TD, Serious Oral Defamation
(SOD), GT and Physical Injuries
(PI). (Respondents Complaints)
Thereafter, the investigating
fiscal found a probable cause
on the Petitioners Complaints
that
herein
respondents
committed the crimes charged.
Consequently,
three
corresponding informations for
SPI, TD and SPI were filed with
the City Court of San Carlos
City against the respondents.
With respect to the complaint
by the respondents against the
petitioners, the Office of the
City Fiscal moved to dismiss

the charges on the ground that

they are in the nature of
countercharge. Displeased, the
respondents directly filed
before the City Court of San
Carlos City, four criminal
complaints for TD, SPI, LSPI
and GT against herein
petitioners. Thereafter, the City
Court,
after
conducting
preliminary examination of the
four
complaints,
found
probable cause that the
offenses charged may have
been committed by the
petitioners, and in turn,
respondent judge Resultan
issued warrant of arrest
against the petitioners (which
was later suspended).
As as a defense, petitioners
contended that the finding of
probable cause by the city
court judge constitutes double
jeopardy since the crime
complained
of
by
the
respondents were already
dismissed by the Office of the
City Fiscal. They also moved for
the re-investigation of the
cases to be conducted by the
Office of the City Fiscal.
However, it was denied by the
city court.

ISSUE:
1. WON the city court has the
power and authority to conduct
anew
a
preliminary
examination of charges, which
were previously the subject of
a preliminary investigation
conducted by the Office of the
City Fiscal and thereafter
dismissed by the latter.

2. WON the city fiscal has the

authority to re-investigate
HELD:
1. Yes. The city court has the
power
to
conduct
preliminary investigation.
(Under 1964 Revised Rules of
Criminal Procedure)
A preliminary investigation is
intended to protect the accused from
the inconvenience, expense and
burden of defending himself in a
formal trial unless the reasonable
probability of his guilt shall have been
first ascertained in a fairly summary
proceeding by a competent officer. It
is also intended to protect the state
from having to conduct useless and
expensive trials.
There are two (2) stages in a
preliminary investigation; first, the
preliminary examination of the
complainant and his witnesses prior to
the arrest of the accused to determine
whether or not there is ground to issue
a warrant of arrest; second,
preliminary investigation proper
wherein the accused, after his arrest, is
informed of the complaint filed against
him and is given access to the
testimonies and evidence presented,
and he is also permitted to introduce
evidence in his favor. The purpose of
this stage of investigation is to
determine whether or not the accused
should be released or held before trial.
Preliminary investigation is merely
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 (since there is no
trial on merits)
In the case at bar, the offenses charged
against petitioners for TD, GT and PI
were all within the jurisdiction of the
City Court of San Carlos City. Under
the circumstances, the complaints
could be filed directly with the City
Court which is empowered to conduct
a preliminary examination for
purposes of issuance of warrants of
arrest, and thereafter to proceed with
the trial of the cases on the merits. The
preliminary investigation proper
conducted by the Office of the City
Fiscal could have been dispensed with.
Neither did the earlier order of
dismissal of the complaints by the
investigating fiscal bar the filing of
said complaints with the city court on
the ground of double jeopardy. As long
as the offense charged has not
prescribed, the city court has the
power and authority to conduct a
preliminary examination and proceed
with the trial of the case properly
within its jurisdiction.
2. No. The Office of the City
Fiscal has no authority to re-
investigate.
Petitioners cannot seek a re-
investigation by the Office of the City
Fiscal from the order of the City Court
finding reasonable ground to believe
that a crime was committed and the
accused probably guilty thereof. The
re-investigation sought by petitioners
applies only to instances where a case
is cognizable by the Court of First
Instance but filed with the City Court
for
purposes
of
preliminary
investigation only and thereafter
dismissed by the latter on the ground

that no prima facie case exists.

However, for cases cognizable by
inferior courts and filed with the same
not only for purposes of preliminary
investigation but for trial on the
merits, the Office of the City Fiscal has
no authority to re- investigate.
Petition DISMISSED.
(04) ROALLOS vs. PEOPLE
Waiver
of
rigth
to
preliminary; the absence of a
proper
preliminary
investigation must be timely
raised. The accused is
deemed to have waived his
right to a preliminary
investigation by entering his
plea
and
actively
participating in the trial
without raising the lack of a
preliminary investigation.
FACTS:

Roallos, a retired officer of the
Armed
Forces
of
the
Philippines, was the Executive
Director of the Aguinaldo Vets
and
Associates
Credit
Cooperative (AVACC). AAAs
mother worked as the
secretary and treasurer of
Roallos.
April 15, 2002, 1:00 p.m., AAA
went to her moms office at
Camp Aguinaldo. But her mom
was out running errands. So
AAA stayed in her mothers
office and wait for her mom to
return.
Roallos was talking to 2 women
at the said office. When the 2
women left, Roallos checked if
anyone is around, and then
locked the door. After asking
AAA some questions, Roallos

placed his left hand on the

table while his right hand was
on AAAs right shoulder. At this
point, AAA was seated on a
chair while Roallos stood
behind her.
Roallos then slid his hand
towards AAAs right breast and
mashed it. AAA asked Roallos
why he is touching her. Roallos
ignored her. He then mashed
AAAs left breast. AAA shouted
"Ano ba!," but Roallos still
ignored her and, instead slid
his hand towards AAAs
abdomen. AAA then stomped
her feet and pushed her chair
towards Roallos. Roallos then
left the office.
Thinking that her mother
would soon return, AAA stayed
inside the office. However, after
about ten minutes, Roallos
returned to the office and
approached AAA. He made
another attempt towards A,
this time by kissing her.
When her mom came back,
AAA told everything. Her mom
later confronted Roallos, who
denied the charge. Fearing that
Roallos might be following
them and might do something
to them, they went to the DND
office to report the incident.
They also reported the same to
the police, which later brought
Roallos to the station for
investigation.
Roallos was charged with
Sexual Abuse under RA 7610.
Although his arrest was
irregular (no warrant of
arrest), and he was brought to
trial without preliminary

investigation, Roallos failed to

move for the quashal of the
information before he entered
his plea at court. In fact, he
actively participated in the trial
before the RTC.
RTC and CA found him guilty.

ISSUE:
Whether or not Roallos should be
acquitted on the ground that he was
denied due process when he was not
given a preliminary investigation.


HELD: NO.

Roallos should not be acquitted on the
ground that he was denied due
process. The accused is estopped from
assailing any irregularity attending his
arrest should he fail to move for the
quashal of the information against him
on this ground prior to arraignment.

At the outset, it is apparent that
petitioner raised no objection to the
irregularity of his arrest before his
arraignment. Considering this and his
active participation in the trial of the
case, jurisprudence dictates that
petitioner is deemed to have
submitted to the jurisdiction of the
trial court, thereby curing any defect
in his arrest. An accused is estopped
from assailing any irregularity of his
arrest if he fails to raise this issue or to
move for the quashal of the
information against him on this
ground before arraignment. Any
objection involving a warrant of arrest
or the procedure by which the court
acquired jurisdiction over the person
of the accused must be made before he
enters his plea; otherwise, the
objection is deemed waived.


Likewise, the absence of a proper
preliminary investigation must be
timely raised. The accused is deemed
to have waived his right to a
preliminary investigation by entering
his plea and actively participating in
the trial without raising the lack of a
preliminary investigation.

Moreover, the absence of a proper
preliminary investigation must be
timely raised and must not have been
waived. This is to allow the trial court
to hold the case in abeyance and
conduct its own investigation or
require the prosecutor to hold a
reinvestigation, which, necessarily
"involves a re-examination and re-
evaluation of the evidence already
submitted by the complainant and the
accused, as well as the initial finding of
probable cause which led to the filing
of the Informations after the requisite
preliminary investigation."

(05) PEOPLE vs. BULURAN
FACTS:
On May 16, 1993, shortly
before 7:15 in the evening, the
Meyer family was celebrating
the birthday of their mother at
their residence in Area 4,
Barangay Amaparo, Capri,
Novaliches, Quezon City. It
appears
that
Dominador
Meyer, Jr., had an altercation
with a cousin. The victim,
Edilberto Meyer, Sr., tried to
pacify them, and brought
Dominador outside the house
to cool-off.
However, while the victim and
Dominador, were talking

outside
their
residence,
Reynaldo Danao approached
them and warned them not to
make any trouble because the
community was celebrating its
fiesta. The victim denied
making any trouble and said
that the matter was a family
problem. Suddenly, Reynaldo
boxed the victim who also
retaliated with a fistblow. The
two exchanged blows and
grappled with each other.
Reynaldo managed to run away
but returned after about two
minutes.
Now, accompanied by his
barkadas or gangmates (Cielito
Buluran, Leonardo Valenzuela
and Jaime Danao), Reynaldo
was armed with a 12-inch
stainless knife. Cielito had also
a knife. Leonardo and Jaime
each carried slingshots, with
sharp-pointed arrows made of
five-inch nails with abaca tails.
Without warning, Reynaldo
stabbed the victim at the left
side of his lower back.
All the while, his three
companions were pointing and
brandishing their weapons at
the Meyer brothers and the
other people present in order
to prevent them from
interfering. Cielito poked his
knife at the Meyer brothers and
stood guard to prevent other
people from rendering help to
the victim. Leonardo likewise
held his slingshot against the
Meyer brothers and prevented
people from going near the
victim by pointing his loaded
slingshot at them. Thereafter,

the four barkadas fled. The

victim died that same night.
On May 20, 1993, appellant
Cielito Buluran and three (3)
John Does were charged with
the crime of murder. The
Information was later amended
]when Leonardo Valenzuela
was identified as one of the
assailants. Upon arraignment,
both accused entered pleas of
not guilty. Appellants denied
any participation in the affray
and testified that at the time of
the incident, they were both
asleep in their respective
houses.
The trial court, finding
conspiracy and treachery,
rendered judgment convicting
appellants of murder.

ISSUE:
WON THE COURT ERRED BY FAILING
TO INQUIRE WHETHER APPELLANTS
WERE REPRESENTED BY COUNSEL IN
THE CUSTODIAL INVESTIGATION
CONDUCTED BY THE POLICE WHICH
LATER ON PRESENTED THEM FOR
INQUEST TO THE CITY PROSECUTOR
OF QUEZON CITY
WON THE COURT ERRED IN
FAILING TO CONSIDER THE FACT
THAT
APPELLANTS
WERE
ARRESTED BY THE POLICE,
WITHOUT ANY PRELIMINARY
INVESTIGATION BY THE CITY
PROSECUTOR
WON THE COURT ERRED IN
CONVICTING THE APPELLANTS WHO
INSTEAD ARE ENTITLED TO
ACQUITTAL ON GROUNDS OF
VIOLATION
OF
THEIR
CONSTITUTIONAL RIGHTS AND

PROCEDURAL RIGHTS TO DUE

PROCESS WHICH DIVESTED THE
COURT OF JURISDICTION.
HELD:
First. Appellants are estopped from
questioning the validity of their
respective arrests since they never
raised this issue before arraignment.
Any objection involving a warrant of
arrest or the acquisition of jurisdiction
over the person of an accused must be
made before he enters his plea,
otherwise the objection is deemed
waived.
Second. There is no violation of the
constitutional rights of the accused
during custodial investigation since
neither one executed an extrajudicial
confession or admission. In this case,
the basis of the conviction by the trial
court was the testimonies of the three
eyewitnesses, Artemio Avendao,
Jacinto Castillo, and Gloria Castillo.
Third. The failure to accord
appellants
their
right
to
preliminary investigation did not
impair the validity of the
information
nor
affect
the
jurisdiction of the trial court. While
the
right
to
preliminary
investigation is a substantive right
and not a mere formal or technical
right of the accused, nevertheless,
the
right
to
preliminary
investigation is deemed waived
when the accused fails to invoke
it before or at the time of entering a
plea at arraignment.

The SC found that no treachery
attended the killing. On numerous
occasions, we have held that where a
killing was preceded by an argument
or quarrel, then the qualifying
circumstance of treachery can no
longer be appreciated since the victim

could be said to have been forewarned

and could anticipate aggression from
the assailants. Moreover, the
aggravating circumstance of evident
premeditation alleged by the
prosecution was not proved clearly
and convincingly. Considering that the
attack
was
made
about two
minutes after the initial altercation, it
cannot be said that there was
sufficient lapse of time between such
determination to commit the crime
and its execution so as to allow the
assailants to reflect upon the
consequences of their actions.

(06) REDULLA vs. SANDIGANBAYAN
No waiver; an accused does not waive
the right to a preliminary investigation
if he invokes it before or at the time he
enters his plea.

FACTS:










ISSUE:





HELD:

(07) ESTRADA vs. BERSAMIN

Nature; the rights of the respondent in
a preliminary investigation are merely
statutory rights, not constitutional due
process rights. An investigation to
determine probable cause for the filing
of an information does not initiate a
criminal action so as to trigger into
operation section 14(2), Article III of
the Constitution. It is the filing of a
complaint or information in court that
initiates a criminal action.

FACTS:
The Ombudsman served upon
Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313,
filed by the NBI and Atty.
Baligod, which prayed
that
criminal proceedings for Plunder
be conducted against Sen.
Estrada.
Sen. Estrada subsequently filed
his counter-affidavit in OMB-CC-13-0313.
The Ombudsman served upon
Sen. Estrada a copy of the
complaint in OMB-C-C-13-
0397, filed by the FIO of the
Ombudsman, which prayed,
among others, that criminal
proceedings for Plunder, as
defined in RA No. 7080, and for
violation of Section 3(e) of RA
No. 3019, be conducted against
Sen. Estrada.
Sen. Estrada filed his counteraffidavit in OMB-C-C-13-0397.
Eighteen of Sen. Estradas co-
respondents in the two
complaints filed their counter-
affidavits between 9 December
2013 and 14 March 2014.
Sen. Estrada filed his Request to
be Furnished with Copies of

Counter-Affidavits of the Other

Respondents, Affidavits of New
Witnesses and Other Filings
(Request) in OMB-C-C-13-
0313.
Sen. Estradas request was
made pursuant to the right of
a respondent to examine the
evidence submitted by the
complainant which he may
not have been furnished
(Section 3[b], Rule 112 of the
Rules of Court) and to have
access to the evidence on
record (Section 4[c], Rule II of
the Rules of Procedure of the
Office of the Ombudsman).
The Ombudsman issued the
assailed order: that the
provisions
pertaining
to
Section 3[b], Rule 112 of the
Rules of Court and Section 4[c],
Rule II of the Rules of
Procedure of the Office of the
Ombudsman do not entitle
respondent [Sen. Estrada] to be
furnished all the filings of the
respondents.
The Ombudsman issued in
OMB-C-C-13-0313 and OMB-CC-13-0397 a Joint Resolution9
which found probable cause to
indict Sen. Estrada and his corespondents with one count of
plunder and 11 counts of
violation of Section 3(e) of RA
No. 3019.
Sen. Estrada filed a Motion for
Reconsideration from said
decision.
Sen. Estrada prayed for the
issuance of a new resolution
dismissing the charges against
him.

Without filing a Motion for

Reconsideration
of
the
Ombudsmans 27 March
2014 Order denying his
Request, Sen. Estrada filed the
present Petition for Certiorari
under Rule 65 and sought to
annul and set aside the 27
March 2014 Order.
The Ombudsman issued in
OMB-C-C-13-0313 and OMBC-C-13-0397 a Joint Order
furnishing Sen. Estrada with
the
counter-affidavits
of
Tuason, Cunanan, Amata,
Relampagos, Francisco Figura,
Gregoria Buenaventura, and
Alexis Sevidal, and directing
him to comment thereon within
a non-extendible period of five
days from receipt of the order.
Sen. Estrada filed before the
Ombudsman a motion to suspend
proceedings in OMB-C-C-130313 and OMB-C-C-13-0397
because of the denial of his
request to be furnished copies of
counter-affidavits of his corespondents deprived him of his
right to procedural due process,
and he has filed the present
Petition before this Court.
As of 2 June 2014, which is
the date of filing of the
Ombudsmans Comment to
the present Petition, Sen.
Estrada had not filed a
comment on the counter-
affidavits furnished to him.
On 4 June 2014, the
Ombudsman issued a Joint
Order in OMB-C-C-13-0313 and
OMB-C-C-13-0397 denying Sen.
Estradas
motion
for
reconsideration dated 7 April
2014. It stated:
This
cralawre

Office, in fact, held in

abeyance the disposition of
the
motions
for
reconsideration
in
this
proceeding in light of its
grant to Senator Estrada a
period of five days from
receipt of the 7 May 2014
Order to formally respond to
the
above-named
co-
respondents claims.
On 2 June 2014, the
Ombudsman, the FIO, and the
NBI
(collectively,
public
respondents), through the
Office of the Solicitor General,
filed their Comment to the
present Petition.

ISSUE:

WON Sen. Estrada was not denied due
process of law.

WON the petition for certiorari is
procedurally infirm.

WON the petitioner is not entitled to a
wirt of preliminary injunction and/or
temporary restraining order.

HELD: NO, it did not violate Sen.
Estradas right to due process.

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.

There is no law or rule which requires
the Ombudsman to furnish a
respondent with copies of the
counter-affidavits
of
his
co-
respondents.


The Ombudsman, in furnishing
Sen. Estrada a copy of the complaint
and its supporting affidavits and
documents, fully complied with
Sections 3 and 4 of Rule 112 of the
Revised Rules of Criminal Procedure,
and Section 4, Rule II of the Rules of
Procedure of the Office of the
Ombudsman, Administrative Order
No. 7. Both the Revised Rules of
Criminal Procedure and the Rules of
Procedure of the Office of the
Ombudsman require the investigating
officer to furnish the respondent with
copies of the affidavits of the
complainant and affidavits of his
supporting witnesses. Neither of these
Rules require the investigating officer
to furnish the respondent with copies
of the affidavits of his co-respondents.

The right of the respondent is only
to examine the evidence submitted
by the complainant, as expressly
stated in Section 3(b), Rule 112 of the
Revised Rules of Criminal Procedure.
This Court has unequivocally ruled in
Paderanga that Section 3, Rule 112 of
the Revised Rules of Criminal
Procedure 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.

Moreover, Section 4 (a, b and c) of
Rule II of the Ombudsmans Rule of
Procedure, read together, only
require the investigating officer to
furnish the respondent with copies of
the affidavits of the complainant and
his supporting witnesses. There is no
law or rule requiring the investigating
officer to furnish the respondent with
copies of the affidavits of his co-
respondents.


(08) ENRILE vs. MANALASTAS
Nature; preliminary investigation is the
occasion for the submission of the
parties respective affidavits, counter-
affidavits and evidence to buttress their
separate allegations, is merely
inquisitorial, and is often the only
means of discovering whether a person
may be reasonably charged with a
crime, to enable the prosecutor to
prepare the information.

FACTS:

The mauling incident involving
neighbors gave rise to the issue
subject of this appeal. Claiming
themselves to be the victims in
that mauling, Josefina Guinto
Morano, Rommel Morano and
Perla Beltran Morano charged
the petitioners and one Alfredo
Enrile in the MTC with
frustrated homicide (victim
being Rommel); with less
serious
physical
injuries

(victim being Josefina); and

with less serious physical
injuries (victim being Perla).
After the parties submitted
their respective affidavits, the
MTC issued its joint resolution
whereby it found probable
cause against the petitioners
for less serious physical
injuries
and
set
their
arraignment.
The petitioners moved for the
reconsideration of the joint
resolution. In challenging the
sufficiency of the complaints,
the petitioners insist that the
"complaints do not provide any
evidence/s that would tend to
establish and to show that the
medical attendance rendered
on
private
complainants
actually and in fact lasted for a
period exceeding ten (10)
days;"
MTC denied the petitioners
motion for reconsideration
because the grounds of the
motion had already been
discussed and passed upon in
the resolution sought to be
reconsidered; and because the
cases were governed by the
Rules on Summary Procedure,
which prohibited the motion
for reconsideration.
Thereafter, the petitioners
presented a manifestation with
motion to quash and a motion
for the deferment of the
arraignment
which
was
however denied by the MTC on
the grounds that issues raised
therein are matters of defense
that can be fully ventilated in a
full blown trial on the merits.

Upon petition for certiorari,

both the RTC and the CA
rejected the motion of the
petitioners.

ISSUE:

Whether or not the complaint were
sufficient pursuant to the Rules of
Court considering the fact that no
evidence were adduced to show that
the medical attendance rendered on
private complainants actually and in
fact lasted for a period exceeding ten
(10) days.

Whether or not the MTC committed
grave abuse of discretion in the denial
of said motion to quash.

HELD:

Yes. The presentation of the medical
certificates to prove the duration of
the victims need for medical
attendance or of their incapacity
should take place only at the trial, not
before or during the preliminary
investigation. According to Cinco v.
Sandiganbayan, the preliminary
investigation, which is the occasion
for the submission of the parties
respective affidavits, counter-
affidavits and evidence to buttress
their separate allegations, is merely
inquisitorial, and is often the only
means of discovering whether a
person may be reasonably charged
with a crime, to enable the
prosecutor
to
prepare
the
information. It is not yet a trial on
the merits, for its only purpose is to
determine whether a crime has
been committed and whether there
is probable cause to believe that the
accused is guilty thereof. The scope

of the investigation does not

approximate that of a trial before the
court; hence, what is required is only
that the evidence be sufficient to
establish probable cause that the
accused committed the crime charged,
not that all reasonable doubtof the
guilt of the accused be removed.

No. A motion to quash is the mode by
which an accused, before entering his
plea, challenges the complaint or
information for insufficiency on its
face in point of law, or for defects
apparent on its face. According to
Section 6, Rule 110 of the Rules of
Court, the complaint or information is
sufficient if it states the names of the
accused; the designation of the offense
given by the statute; the acts or
omissions
complained
of
as
constituting the offense; the name of
the offended party; the approximate
date of the commission of the offense;
and the place where the offense was
committed. The fundamental test in
determining the sufficiency of the
averments in a complaint or
information is, therefore, whether the
facts alleged therein, if hypothetically
admitted, constitute the elements of
the offense. In the context of Section 6,
Rule 110 of the Rules of Court, the
complaints sufficiently charged the
petitioners with less serious physical
injuries. Indeed, the complaints only
needed to aver the ultimate facts
constituting the offense, not the
details of why and how the illegal acts
allegedly amounted to undue injury or
damage, for such matters, being
evidentiary, were appropriate for a
trial on the merits. Hence, the
complaints were not quashable.


(09) AGDEPPA vs. OMBUDSMAN
Nature; a preliminary investigation is
held before an accused is placed on
trial to secure the innocent against
hasty, malicious, and oppressive
prosecution; to protect him from an
open and public accusation of a crime,
as well as from the trouble, expenses,
and anxiety of a public trial. It is also
intended to protect the state from
having to conduct useless and
expensive trials.

FACTS:

Iluminado L. Junia, Jr. (Junia),
then Group Manager for the
Project Technical Services
Group of the National Housing
Authority (NHA), filed on May
25, 1999 a Complaint before
the Office of the Ombudsman
against several NHA officials,
together with Rodolfo M.
Agdeppa
(Agdeppa)
and
Ricardo Castillo (Castillo),
resident auditors of the
Commission on Audit (COA) at
the NHA. Junias Complaint was
docketed as OMB-0-99-1015.
Junia alleged that Supra
Construction (SupraCon), the
contractor for the NHA project
denominated as Phase IX,
Packages 7 and 7-A in Tala,
Caloocan City (NHA Project),
was overpaid in the total
amount of P2,044,488.71. The
overpayment was allegedly
facilitated through the dubious
and confusing audit reports
prepared by Agdeppa and
endorsed by Castillo, to the
detriment,
damage,
and
prejudice of the Government.

The Complaint in OMB-0-99-

1015 was signed by Junia, and
certified and verified by him,
but not under oath.
On June 10, 1999, Marydel B.
Jarlos-Martin (Jarlos-Martin),
then Graft Investigation Officer
II of the Office of the
Ombudsman, issued an Order
in OMB-0-99-1015 giving the
following directives: (1) for
Agdeppa and Castillo to file
their respective counter-
affidavits, witnesses affidavits,
and other supporting evidence
in answer to Junias Complaint
within 10 days from notice;
and (2) for Junia to file his
reply within 5 days from
receipt of copies of Agdeppas
and
Castillos
counter-
affidavits, to which the parties
complied.
Agdeppa wrote a letter dated
March 3, 1999 addressed to
Senator Renato S. Cayetano
(Sen. Cayetano), who was then
the Chairperson of the Senate
Committee on Justice and
Human
Rights.
Agdeppa
requested Sen. Cayetano to
conduct an investigation of
incumbent officials of the Civil
Service Commission (CSC) and
COA
who
purportedly
committed irregularities in the
resolution
of
the
administrative case against the
government officials and
employees involved in the
reconsideration
of
the
disallowed money claims of
SupraCon in the NHA Project.
Agdeppa attached to said letter
his Sworn Statement dated

March 3, 1999, detailing under

oath his accusations against the
COA and CSC officials. In a 1st
Indorsement dated April 23,
1999, Atty. Raul M. Luna, Sen.
Cayetanos Chief of Staff,
referred Agdeppas letter dated
March 3, 1999 to Ombudsman
Aniano A. Desierto (Desierto)
for appropriate action.
Agdeppa then wrote a letter
dated July 12, 1999 addressed
to
Ombudsman
Desierto
inquiring as to the status of the
1st Indorsement from Sen.
Cayetanos office. Failing to
receive any reply, Agdeppa
wrote another letter dated
August 19, 1999 addressed to
Ombudsman Desierto.
Realizing from Agdeppas letter
dated August 19, 1999 that
Junias Complaint in OMB-0-99-
1015 was not under oath,
Jarlos-Martin issued an Order
on September 23, 1999
directing Junia to appear
before
Office
of
the
Ombudsman,
Room
210,
located at the 2nd Floor,
Evaluation and Preliminary
Investigation
Bureau,
immediately upon receipt of
the Order, in order to swear to
the complaint dated May 18,
1999, pursuant to Section 4(a),
Rule II, Administrative Order
No. 07 (A.O. No. 07), otherwise
known as the Rules of
Procedure of the Office of the
Ombudsman.
Pursuant to the above Order,
Junia personally appeared
before Emmanuel M. Laurezo
(Laurezo) on October 6, 1999

to swear to his Complaint. Also

on October 6, 1999, Jarlos-
Martin issued another Order
addressed to Agdeppa and
Castillo directing them to file
their counter-affidavit, the
affidavit/s of their witness/es
and
other
supporting
evidences, in answer to the
Complaint-Affidavit dated May
18, 1999, which is now under
oath, within 10 days from
receipt of the order, with proof
of
service
upon
the
complainant who may file a
reply thereto within 5 days
from receipt, if he so desires.
Agdeppa, in a Motion to
Resolve
submitted
on
November 8, 1999, opposed
Jarlos-Martins Order dated
October 6, 1999. On June 14,
2000, Jarlos-Martin issued a
Resolution in OMB-0-99-1015
finding probable cause to indict
Agdeppa and Castillo for
violation of section 3(e) of the
Anti-Graft
and
Corrupt
Practices Act (R.A. No. 3019)
relative to the overpayment of
the amount of P182,543.43 to
SupraCon.
Subsequently, an Information
dated June 14, 2000 was filed
before the Quezon City RTC-
Branch 91, docketed as Crim.
Case No. 01-100552, charging
Agdeppa and Castillo with
violation of Section 3(e) of R.A.
No. 3019. The same court
issued a Warrant of Arrest for
Agdeppa and Castillo on May
10, 2001.
Meanwhile, as his Motion to
Resolve in OMB-0-99-1015 was

still unacted upon by April 7,

2000, Agdeppa filed before the
Office of the Ombudsman an
Affidavit-Complaint
against
Jarlos-Martin, Laurezo, and
Junia, docketed as OMB-MIL-
CRIM-00-0470.
Agdeppa
accused Jarlos-Martin, Laurezo,
and Junia of violating Section
3(a), (e), (f), and (j) of R.A. No
3019; and Rule II, Section 4(a),
(b), and (g) A.O. No. 07.
Acting on Agdeppas Affidavit-
Complaint in OMB-MIL-CRIM-
00-0470, Director Rudiger G.
Falcis II (Falcis) of the Criminal
Investigation, Prosecution &
Administrative Adjudication
Bureau,
Office
of
the
Ombudsman, issued an Order
dated June 6, 2000, directing
only Jarlos-Martin and Laurezo
to file their counter-affidavits
and other evidence within 10
days from notice.
The Office of the Ombudsman
issued a Resolution dated July
31, 2000 dismissing Agdeppas
complaint in OMB-MIL-CRIM-
00-0470 on the ground that the
provisions of R.A. No. 3019
claimed by Agdeppa to have
been violated by Jarlos-Martin,
Laurezo and Junia, are not
applicable to the case. The
resolution was penned by
Ombudsman Investigator Alan
R. Caares (Caares), with the
concurrence of Director Falcis,
recommending approval of
Deputy Ombudsman for the
Military Orlando C. Casimiro
(Casimiro), and approval of
Ombudsman Desierto.

Agdeppa filed a Motion for

Reconsideration
of
the
Resolution dated July 31, 2000
but was denied for lack of
merit by the Office of the
Ombudsman in an Order dated
September 28, 2000.

ISSUE:

One of the issues raised by petitioner
in his petition before the Supreme
Court is this: The Hon. Public
Respondents Ombudsman, acting
through the Office of the Deputy
Ombudsman for the Military,
committed grave abuse of discretion
amounting to lack or excess
injurisdiction when he approved the
resolution dismissing the complaint
Rodolfo M. Agdeppa vs. Marydel B.
Jarlos-Martin, Emmanuel M. Laurezo,
Iluminado L. Junia, Jr., which is a
complaint responsive in both form
and substance, without first requiring
Junia who is a private respondent to
file his counter-affidavit thereto.

HELD:

The Supreme Court (SC) found no
merit to the contention of Agdeppa.

Sec. 22 of R.A. No. 6770, otherwise
known as The Ombudsman Act of
1989, explicitly provides:

Sec. 22. Investigatory

Power.x x x.
In all cases of conspiracy
between an officer or
employee of the government
and a private person, the
Ombudsman
and
his
Deputies
shall
have
jurisdiction to include such
private person in the

investigation and proceed

against such private person
as the evidence may warrant.
The officer or employee and
the private person shall be
tried jointly and shall be
subject to the same penalties
and liabilities.

There is therefore no question that the
Office of the Ombudsman has the
power to investigate and prosecute a
private person who conspired with a
public officer or employee in the
performance of an illegal, unjust,
improper, or inefficient act or
omission. In this case, though, the
Office of the Ombudsman excluded
Junia from the Order dated June 6,
2000, not because it did not have
jurisdiction over a private individual,
rather, because it found no merit in
Agdeppas accusations against Junia in
OMB-MIL-CRIM-00-0470.

The Office of the Solicitor General
(OSG) as counsel for the Office of the
Ombudsman, Jarlos-Martin, and
Laurezo explains that the allegations
in Agdeppas Affidavit-Complaint
basically focused on the purported
violations of the provisions of R.A. No.
3019 by public respondents Martin
and Laurezo as graft investigating
officers and a reading of the
complaint shows that Junias alleged
participation, if ever, was peripheral
and
secondary,
thus,
the
investigating officer, after evaluation,
considered the complaint against
Junia as not warranting further
proceedings. In effect, the exclusion
of Junia from the Order dated June 6,
2000 was an outright dismissal by the
Office of the Ombudsman of Agdeppas
Affidavit-Complaint insofar as said
Affidavit-Complaint involved Junia.

(Preliminary Investigation Part)

Furthermore, the SC, citing Angeles vs.
Gutierrez, said that the Ombudsman
has the discretionary power to
dismiss a complaint outright or
proceed with the conduct of a
preliminary investigation.

The
determination
by
the
Ombudsman of probable cause or of
whether there exists a reasonable
ground to believe that a crime has
been committed, and that the accused
is probably guilty thereof, is usually
done after the conduct of a
preliminary investigation. However, a
preliminary investigation is by no
means mandatory.

The Rules of Procedure of the Office of
the Ombudsman (Ombudsman Rules
of Procedure), specifically Section 2 of
Rule II, states:

Evaluation.Upon
evaluating the complaint, the
investigating officer shall
recommend whether it may
be: a) dismissed outright for
want of palpable merit; b)
referred to respondent for
comment; c) indorsed to the
proper government office or
agency which has jurisdiction
over the case; d) forwarded
to the appropriate officer or
official
for
fact-finding
investigation; e) referred for
administrative adjudication;
or f) subjected to a
preliminary investigation.

Thus, the Ombudsman need not
conduct a preliminary investigation
upon receipt of a complaint. Should
investigating officers find a complaint

utterly devoid of merit, they may

recommend its outright dismissal.
Moreover, it is also within their
discretion to determine whether or
not preliminary investigation should
be conducted.

The Ombudsman has full discretion to
determine whether a criminal case
should be filed, including whether a
preliminary
investigation
is
warranted.

While the Office of the Ombudsman
dismissed outright the Affidavit-
Complaint as against Junia in OMB-
MIL-CRIM-00-0470, it decided to
conduct a preliminary investigation of
the charges against Jarlos-Martin and
Laurezo contained in the same
Affidavit-Complaint.
After
the
preliminary investigation, the Office of
the Ombudsman likewise dismissed
the Affidavit-Complaint as against
Jarlos-Martin and Laurezo for reasons
that are notably not dependent upon
Junias non-participation in the
preliminary investigation. The reasons
for the dismissal of Agdeppas
complaint against Jarlos-Martin and
Laurezo, as well as Junia, were
collectively discussed by the Office of
the Ombudsman in its Resolution
dated July 31, 2000.

Agdeppas assertion that he
had been denied due process is
misplaced, bearing in mind that the
rights to be informed of the charges, to
file a comment to the complaint, and
to participate in the preliminary
investigation, belong to Junia, as the
following pronouncements on the
nature of a preliminary investigation
in Uy v. Office of the Ombudsman show:

A
preliminary
investigation is held before
an accused is placed on
trial to secure the innocent
against hasty, malicious,
and
oppressive
prosecution; to protect him
from an open and public
accusation of a crime, as
well as from the trouble,
expenses, and anxiety of a
public trial. It is also
intended to protect the
state from having to
conduct
useless
and
expensive trials. While the
right is statutory rather
than constitutional, it is a
component of due process
in administering criminal
justice. The right to have a
preliminary investigation
conducted before being
bound for trial and before
being exposed to the risk of
incarceration and penalty
is not a mere formal or
technical right; it is a
substantive right. To deny
the accuseds claim to a
preliminary investigation
is to deprive him of the full
measure of his right to due
process.

The SC further cited the case of
Cabahug v. People where the Court
directly addressed agencies tasked
with preliminary investigation and
prosecution of crimes, which includes
the Office of the Ombudsman,
reminding them as follows:

We cannot overemphasize
the admonition to agencies
tasked with the preliminary
investigation
and
prosecution of crimes that
the very purpose of a
preliminary investigation is
to shield the innocent from
precipitate, spiteful and
burdensome
prosecution.

They are duty-bound to

avoid, unless absolutely
necessary, open and public
accusation of crime not only
to spare the innocent the
trouble, expense and torment
of a public trial, but also to
prevent unnecessary expense
on the part of the State for
useless and expensive trials.
Thus, when at the outset the
evidence cannot sustain a
prima facie case or that the
existence of probable cause
to form a sufficient belief as
to the guilt of the accused
cannot be ascertained, the
prosecution must desist from
inflicting on any person the
trauma of going through a
trial.

Clearly, the right to preliminary
investigation is a component of the
right of the respondent/accused to
substantive
due
process.
A
complainant cannot insist that a
preliminary investigation be held
when the complaint was dismissed
outright because of palpable lack of
merit. It goes against the very nature
and
purpose
of
preliminary
investigation to still drag the
respondent/accused through the
rigors of such an investigation so as to
aid the complainant in substantiating
an accusation/charge that is evidently
baseless from the very beginning.

Lastly, the fact alone that the
investigating officer of the Office of the
Ombudsman who issued the
resolution was not the one who
conducted
the
preliminary
investigation does not render said
investigating officers resolution
erroneous
or
irregular.
The
investigating officer may rely on the
pleadings and evidence on record and

enjoy the presumption of regularity in

the performance of his duties as a
public officer, unless disputed by
evidence to the contrary.

(10) ARROYO vs. DOJ
Nature; 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.

FACTS:

The Comelec issued Resolution
No. 9266 approving the
creation of a joint committee
with the Department of Justice
(DOJ), which shall conduct
preliminary investigation on
the alleged election offenses
and anomalies committed
during the 2004 and 2007
elections.
The Comelec and the DOJ
issued Joint Order No. 001-
2011 creating and constituting
a Joint Committee and Fact-
Finding Team on the 2004 and
2007
National
Elections
electoral
fraud
and
manipulation cases composed
of officials from the DOJ and
the Comelec. In its initial
report, the Fact-Finding Team
concluded that manipulation of
the results in the May 14, 2007
senatorial elections in the
provinces of North and South
Cotabato and Maguindanao
were indeed perpetrated. The
Fact-Finding
Team
recommended that herein

petitioners Gloria Macapagal-

Arroyo (GMA), et al. to be
subjected
to
preliminary
investigation for electoral
sabotage.
After
the
preliminary
investigation, the COMELEC en
banc adopted a resolution
ordering that information/s for
the crime of electoral sabotage
be filed against GMA, et al.
while that the charges against
Jose Miguel Arroyo, among
others, should be dismissed for
insufficiency of evidence.
Consequently, GMA, et al. assail
the validity of the creation of
COMELEC-DOJ Joint Panel and
of Joint Order No. 001-2011
before the Supreme Court.

ISSUE:

Whether or not the creation of
COMELEC-DOJ Joint Panel is valid?

Whether or not Joint Order No. 001-
2011 violates the equal protection
clause?

HELD: DISMISSED

The creation of COMELEC-DOJ Joint
Panel is valid.

Section 2, Article IX-C of the 1987
Constitution enumerates the powers
and functions of the Comelec. The
grant to the Comelec of the power to
investigate and prosecute election
offenses as an adjunct to the
enforcement and administration of all
election laws is intended to enable the
Comelec to effectively insure to the
people the free, orderly, and honest

conduct
of
elections.
The
constitutional grant of prosecutorial
power in the Comelec was reflected in
Section 265 of Batas Pambansa Blg.
881, otherwise known as the Omnibus
Election
Code.

Under the above provision of law, the
power to conduct preliminary
investigation is vested exclusively
with the Comelec. The latter, however,
was given by the same provision of
law the authority to avail itself of the
assistance of other prosecuting arms
of the government. Thus, under the
Omnibus Election Code, while the
exclusive jurisdiction to conduct
preliminary investigation had been
lodged with the Comelec, the
prosecutors had been conducting
preliminary investigations pursuant to
the continuing delegated authority
given
by
the
Comelec.

Thus, Comelec Resolution No. 9266,
approving the creation of the Joint
Committee and Fact-Finding Team,
should be viewed not as an abdication
of
the
constitutional
bodys
independence but as a means to fulfill
its duty of ensuring the prompt
investigation and prosecution of
election offenses as an adjunct of its
mandate of ensuring a free, orderly,
honest, peaceful and credible
elections.

Joint Order No. 001-2011 does not
violate the equal protection clause.

Petitioners claim that the creation of
the Joint Committee and Fact-Finding
Team is in violation of the equal
protection clause of the Constitution
because its sole purpose is the
investigation and prosecution of

certain persons and incidents. They

insist that the Joint Panel was created
to target only the Arroyo
Administration as well as public
officials linked to the Arroyo
Administration.

While GMA and Mike Arroyo were
among those subjected to preliminary
investigation, not all respondents
therein were linked to GMA as there
were public officers who were
investigated upon in connection with
their acts in the performance of their
official duties. Private individuals
were also subjected to the
investigation by the Joint Committee.

The equal protection guarantee exists
to prevent undue favor or privilege. It
is
intended
to
eliminate
discrimination and oppression based
on inequality. Recognizing the
existence of real differences among
men, it does not demand absolute
equality. It merely requires that all
persons under like circumstances and
conditions shall be treated alike both
as to privileges conferred and
liabilities enforced.

(011)

SALUDAGA
vs.
SANDIGANBAYAN
Filing of the amended information
without preliminary investigation; The
case may be reviewed by the State
within the time-bar either by the
refilling of the Information or by the
filing of a new information for the same
offense or an offense necessarily
included therein.

FACTS:

Saludaga and Genio entered
into a Pakyaw Contract for the
construction of Barangay Day
Care
Centers
without
conducting a competitive
public bidding as required by
law, which caused damage and
prejudice to the government.
An information was filed for
violation of Sec. 3 (e) of RA
3019 by causing undue injury to
the
Government.
The
information was quashed for
failure to prove the actual
damage, hence a new
information was filed, now for
violation of Sec. 3 (e) of RA
3019 by giving unwarranted
benefit to a private person.
The accused moved for a new
preliminary investigation to be
conducted on the ground that
there is substitution and/or
substantial amendment of the
first information.

ISSUE:
WON there is substitution and/or
substantial amendment of the
information that would warrant a new
preliminary investigation.

HELD: NO. There is no substitution

and/or substantial amendment.

Section 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:


(e) Causing any undue injury to any
party, including the Government,
or giving any private party any
unwarranted benefits, advantage or
preference in the discharge of his
official administrative or judicial
functions through manifest partiality,
evident bad faith or gross inexcusable
negligence. This provision shall apply to
officers and employees of offices or
government corporations charged with
the grant of licenses or permits or other
concessions.

That there are two (2) different modes
of committing the offense: either by
causing undue injury or by giving
private person unwarranted benefit.
That accused may be charged under
either mode or under both. Hence a
new preliminary investigation is
unnecessary.











(012) BORLONGAN, JR. vs. PENA

Requiring
counter-affidavit
not
mandatory.

FACTS:

Respondent Atty. Magdaleno M.
Pena (Atty. Pena) instituted a
civil case for recovery of
agents compensation and
expenses,
damages,
and
attorneys fees against Urban
Bank and herein petitioners,
before RTC. Atty. Pea claimed
for compensation on the
Contract of Agency, wherein he
undertook to perform such acts
necessary to prevent any
intruder and squatter from
unlawfully occupying Urban
Banks
property
located
along Roxas
Boulevard, Pasay City.
Petitioners filed a Motion to
Dismiss and argued that they
never
appointed
the
respondent as agent or counsel.
They presented documents to
show that respondent was
appointed as agent by Isabela
Sugar Company, Inc. (ISCI), the
original owner of the subject
property, and not by Urban
Bank or by the petitioners.
Respondent
filed
his
Complaint-Affidavit with the
Office of the City Prosecutor
and
claimed
that
the
documents were falsified
because the alleged signatories
did not actually affix their
signatures, and the signatories
were neither stockholders nor
officers and employees of ISCI.
City Prosecutor found probable
cause for the indictment of

petitioners for 4 counts of the

crime of Introducing Falsified
Documents.
The
City
Prosecutor concluded that the
documents were falsified
because the alleged signatories
untruthfully stated that ISCI
was the principal of the
respondent; that petitioners
knew that the documents were
falsified considering that the
signatories
were
mere
dummies. The corresponding
Informations were filed with
the MTCC. Thereafter, Judge
Primitivo Blanca issued the
warrants for the arrest of the
petitioners.
Petitioners filed an Omnibus
Motion to Quash, Recall
Warrants of Arrest and/or for
Reinvestigation.
Petitioners
insisted that they were denied
due process because of the
non-observance of the proper
procedure on preliminary
investigation prescribed in the
Rules of Court. They claimed
that they were not afforded the
right to submit their counter-
affidavit and argued that since
no such counter-affidavit and
supporting documents were
submitted by the petitioners,
the trial judge merely relied on
the complaint-affidavit and
attachments of the respondent
in issuing the warrants of
arrest. Further, petitioners
posited that the criminal cases
should have been suspended
on the ground that the issue
being threshed out in the civil
case is a prejudicial question.

MTCC denied the omnibus

motion on the ground that
preliminary investigation was
not available in the instant case
which
fell
within
the
jurisdiction of the first-level
court. It upheld the validity of
the warrant of arrest, saying
that it was issued in
accordance with the Rules of
Court. Petitioners could no
longer question the validity of
the warrant since they already
posted bail. The issue involved
in the civil case was not a
prejudicial question.
Petitioners instituted a special
civil action for Certiorari and
Prohibition with Prayer for
Writ of Preliminary Injunction
and Temporary Restraining
Order (TRO) before the Court
of Appeals, ascribing grave
abuse of discretion amounting
to lack or excess of jurisdiction
on the part of the MTCC in
issuing and not recalling the
warrants of arrest. CA
dismissed the petition.

ISSUE:

W/N petitioners were deprived of
their right to due process of law
because of the denial of their right to
preliminary investigation and to
submit their counter-affidavit.
HELD: NO

The crime to which petitioners were
charged was defined and penalized
under second paragraph of Article 172
in relation to Article 171 of the
Revised Penal Code. The penalty is
prision correccional in its medium and

maximum periods and a fine of not

more than P5,000 pesos.

Prision correccional in its
medium and maximum periods
translates to imprisonment of 2 years,
4 months and 1 day. The next lower in
degree to prision correccional isarresto
mayor in its maximum period
to prision correccional in its minimum
period which translates to 4 months
and 1 day to 2 years and 4 months of
imprisonment.
Since the crime committed is
not covered by the Rules of Summary
Procedure, the case falls within the
exclusive jurisdiction of the first
level courts but applying the
ordinary rules. In such instance,
preliminary investigation as defined
in Section 1, Rule 112 of the 1985
Rules of Criminal Procedure is not
applicable since such section covers
only crimes cognizable by the RTC.
The prosecutor is not
mandated
to
require
the
submission of counter-affidavits. In
the determination of probable cause,
the prosecutor may solely rely on the
complaint, affidavits and other
supporting documents submitted by
the complainant. If he does not find
probable cause, the prosecutor may
dismiss outright the complaint or if he
finds probable cause or sufficient
reason to proceed with the case, he
shall issue a resolution and file the
corresponding information.
However, the SC found that the
documents and complaint affidavit
executed by respondent were
insufficient to support the existence
of probable cause. The Respondents
claims of the falsity of the documents
were mere assertions. The allegation
of the respondent that the signatures

were falsified does not qualify as

personal knowledge. Nowhere in the
said affidavit did respondent state that
he was present at the time of the
execution of the documents. Neither
did he claim that he was familiar with
the signatures of the signatories.
Respondent simply made a bare
assertion.
Although the determination of
probable cause requires less than
evidence which would justify
conviction it should at least be more
than mere suspicion.
SC annulled the findings of the
prosecution and the court a quo since
they committed manifest errors in
their findings of probable cause. CA
likewise erred in affirming the
findings of the prosecutor as well as
the court a quo as to the existence of
probable
cause. The
criminal
complaint against the petitioners
should be dismissed.
Petition is granted

(013) BUNDIONGAN Jr. vs. DELA
CRUZ Jr.
Absence of preliminary investigation
(effect); the right to a preliminary
investigation is not a constitutional
right, but is merely a right conferred by
statute. The absence of a preliminary
investigation does not impair the
validity of the information or otherwise
render the same defective.

FACTS:

By virtue of Municipal
Ordinance No. 2, series of 2001,
the Municipality of Carmen,
Bohol appropriated the amount
of P450,000.00 for the
purchase of a road roller for
the municipality. However, on

November 16, 2001, the

Municipal
Development
Council through Resolution No.
3 recommended that the
amount of P450,000.00 be
realigned and used for the
asphalt laying of a portion of
the Tan Modesto Bernaldez
Street.
On February 6, 2002, petitioner
Municipal Treasurer, Fulgencio
V. Paa, issued a Certificate of
Availability of Funds for the
project. Thereafter, the Office
of the Municipal Engineer
prepared a Program of Works
and Cost Estimates duly
noted/approved.Bidding was
conducted on March 5, 2002.
The next day, March 6, 2002,
Mayor Budiongan issued the
Notice of Award and Notice to
Commence Work in favor of
Herbert
Malmis
General
Merchandise and Contractor,
Inc. who emerged as the lowest
complying bidder. On March
22, 2002, the Sangguniang
Bayan passed Resolution No.
60,4 series of 2002, authorizing
Mayor Budiongan to sign and
enter into contract with Malmis
relative to the above project in
the amount of P339,808.00.
With such authority, Malmis
commenced with the project.
Thereafter, it was discovered
that there was yet no ordinance
approving the realignment of
the funds. Thus, on May 17,
2002, the Sangguniang Bayan
passed Ordinance No. 8,5 series
of 2002, approving the
realignment of the fund. On

June 14, 2002, Malmis was paid

the contract price.
On July 3, 2002, private
respondents Arlene P. Palgan
and Valeriano U. Nadala filed a
complaint
against
the
petitioners before the Office of
the Deputy Ombudsman for
Visayas alleging illegality in the
conduct of the bidding, award
and notice to commence work
since there was no fund
appropriated for the purpose.
On July 31, 2003, the Office of
the Deputy Ombudsman for
Visayas found probable cause
and recommended the filing of
an information for violation of
Article 2207 of the Revised
Penal Code against the
petitioners. However, the
complaint against Hermosila
Logrono, Desiderio Gudia, Jr.
and Herbert Malmis was
dismissed for lack of merit.
Upon review, the Case
Assessment,
Review
and
Reinvestigation Bureau of the
Office of the Special Prosecutor,
issued
the
assailed
Memorandum dated April 28,
2004, modifying the charge
from violation of Article 220 of
the Revised Penal Code to (1)
violation of Section 3(e) of R.A.
No. 3019 against petitioners
for
allegedly
giving
unwarranted benefit to Malmis
and (2) violation of Section
3(h) of R.A. No. 3019 against
petitioner Budiongan for
allegedly "directly or indirectly
having financial or pecuniary
interest in a contract or
transaction in connection with

which he intervenes or takes

part in his official capacity."
Thus,
two
separate
Informations were filed before
the Sandiganbayan (1) for
violation of Section 3(e) of R.A.
No.
3019
against
the
petitioners
docketed
as
Criminal Case No. 28075 and
(2) for violation of Section 3(h)
of R.A. No. 3019 against
petitioner Budiongan docketed
as Criminal Case No. 28076.
Thereafter, petitioners filed a
Motion
to
Quash
the
information charging them
with violation of Sec. 3(e) of
R.A. No. 3019. In a
Resolution10 dated June 10,
2005, the Sandiganbayan
granted the motion to quash
and remanded Criminal Case
No. 28075 to the Office of the
Ombudsman for amendment of
the Information. It held that
although Malmis benefited
from the contract, the same is
not unwarranted considering
that
the
project
was
implemented, executed and
completed.
On June 27, 2005, an Amended
Information was filed charging
petitioners with violation of
Sec. 3(e) of R.A. No. 3019,
alleging that petitioners, by
prematurely awarding to
Malmis the project despite the
absence of funds specifically
appropriated for such purpose,
and thereafter paying the
contract price from the
Municipal Treasury which was
originally appropriated for the
purchase of a road roller,

caused damage and undue

injury to the government.
Finding that the Amended
Information contains all the
material averments necessary
to make out a case for the first
mode of violating Section 3(e)
of R.A. No. 3019, i.e., causing
any undue injury to any party,
including the government, the
Sandiganbayan admitted the
Amended Information in its
Resolution dated August 18,
2005.
On even date, petitioners filed
with the Sandiganbayan a
Motion for Leave of Court to
File
Motion
for
Reinvestigation13 arguing that
the above Informations were
filed without affording them
the opportunity to file counter-
affidavits to answer/rebut the
modified
charges.
On
September 20, 2005, the
Sandiganbayan
issued
a
Resolution14 denying the
motion insofar as Criminal Case
No. 28076 is concerned.
It held that it is too late in the
day to remand the case for
reinvestigation
considering
that Budiongan had already
been arraigned and the case
had long been set for pre-trial
proceedings, with both parties
having filed their respective
briefs. As regards Criminal
Case
No.
28075,
the
Sandiganbayan noted that
although the conduct of the
preliminary investigation was
regular, petitioners however
were not given the opportunity
to seek reconsideration of the

modified charges. Thus, it

granted leave to the petitioners
to file with the Office of the
Special Prosecutor a motion for
reconsideration (not a motion
for reinvestigation) of the said
office's Memorandum dated
April 28, 2004.

ISSUE:

WHETHER THE REFUSAL OR
FAILURE TO CONDUCT A RE-
INVESTIGATION HAS VIOLATED
PETITIONERS' RIGHT TO DUE
PROCESS.

HELD: NO

The right to a preliminary
investigation is not a constitutional
right, but is merely a right conferred
by statute. The absence of a
preliminary investigation does not
impair the validity of the Information
or otherwise render the same
defective. It does not affect the
jurisdiction of the court over the case
or constitute a ground for quashing
the Information. If absence of a
preliminary investigation does not
render the Information invalid nor
affect the jurisdiction of the court over
the case, then the denial of a motion
for reinvestigation cannot likewise
invalidate the Information or oust the
court of its jurisdiction over the case.

Petitioners were not deprived of due
process because they were afforded
the opportunity to refute the charges
by filing their counter-affidavits. The
modification of the offense charged
did not come as a surprise to the
petitioners because it was based on
the same set of facts and the same

alleged illegal acts. Moreover,

petitioners failed to aver newly
discovered evidence nor impute
commission of grave errors or serious
irregularities prejudicial to their
interest to warrant a reconsideration
or reinvestigation of the case as
required under Section 8, Rule III of
the Rules of Procedure of the Office of
the
Ombudsman.
Thus,
the
modification of the offense charged,
even without affording the petitioners
a new preliminary investigation, did
not amount to a violation of their
rights.

Furthermore, the right to preliminary
investigation is deemed waived when
the accused fails to invoke it before or
at the time of entering a plea at
arraignment. Petitioner Budiongan
was arraigned in Criminal Case No.
28076 on March 28, 2005. He was also
arraigned together with the rest of the
petitioners under the Amended
Information in Criminal Case No.
28075 on December 2, 2005.

(014) PEOPLE vs. ANDRADE
It is clearly provided by the Rules of
Criminal Procedure that if the motion
to quash is based on an alleged defect
in the information which can be cured
by amendment, the court shall order
the amendment to be made.

FACTS:

Pursuant to the instructions of
then Director of the Bureau of
Corrections, on June 30, 2003, a
random drug test was
conducted in the National
Bilibid Prison (NBP) wherein
the urine samples of thirty-
eight (38) inmates were

collected and subjected to drug

testing by the Chief Medical
Technologist and Assistant
Medical Technologist of the
Alpha Polytechnic Laboratory
in Quezon City, and out of that
number, twenty-one (21) urine
samples tested positive. Hence,
they were charged with
violation of Section 15, Article
II of Republic Act No. 9165 (RA
9165).
All respondents pleaded "Not
Guilty" to the crime charged
during their arraignment on
June 29, 2006. Thereafter, the
case was set for pre-trial and
trial on August 11, 2006.
On
August
29,
2006,
respondents
filed
a
Consolidated Motion to Dismiss
on the ground that the facts
alleged in the Information do
not constitute a violation of
Section 15, RA 9165, further
contending that they were
never apprehended or arrested
for using a dangerous drug or
for violating the provisions of
RA 9165, which would warrant
drug testing and serve as basis
for
filing
the
proper
information in court. In fact,
they were merely called to the
Maximum Security Conference
Hall in the morning of June 30,
2003 and with seventeen (17)
other inmates made to undergo
drug testing, pursuant to the
directive. It was only after they
were found positive for
dangerous drugs that the
information for Violation of
Section 15, RA 9165 was filed
against each of them.

They were also not informed of

the results of the screening
test, thus depriving them of the
right to challenge the same
through a confirmatory drug
test within the required fifteen
(15)-day period after receipt of
the positive result.
The RTC Muntinlupa, before
the scheduled hearing date for
pre-trial and trial, GRANTED
the Motion to Dismiss finding
no probable cause for the
offense charged in the
Information. Petitioner filed
Petition for Certiorari in CA,
but was DENIED. Hence this
petition.

ISSUE:
WON CA erred in upholding the RTC's
grant of respondents' motion and
eventually dismissing the case based
on lack of probable cause

HELD: YES

Section 2, Rule 117 of the Revised
Rules on Criminal Procedure plainly
states that in a motion to quash, the
court shall not consider any ground
other than those stated in the motion,
except lack of jurisdiction over the
offense charged.
The RTC judge's determination of
probable cause should have been only
limited prior to the issuance of a
warrant of arrest and not after the
arraignment. Once the information
has been filed, the judge shall then
"personally evaluate the resolution of
the prosecutor and its supporting
evidence" to determine whether there
is probable cause to issue a warrant of
arrest. At this stage, a judicial

determination of probable cause

exists.
In People v. Castillo and Mejia, this
Court has stated:
There are two kinds of determination
of probable cause: executive and
judicial. The executive determination
of probable cause is one made during
preliminary investigation. It is a
function that properly pertains to the
PUBLIC PROSECUTOR who is given a
broad discretion to determine
whether probable cause exists and to
charge those whom he believes to
have committed the crime as defined
by law and thus should be held for
trial. Otherwise stated, such official
has the quasi-judicial authority to
determine whether or not a criminal
case must be filed in court. Whether or
not that function has been correctly
discharged by the public prosecutor,
i.e.,whether or not he has made a
correct ascertainment of the existence
of probable cause in a case, is a
matter that the trial court itself
does not and may not be compelled
to pass upon.
The judicial determination of probable
cause, on the other hand, is one made
by the judge to ascertain whether a
warrant of arrest should be issued
against the accused. The judge must
satisfy himself that based on the
evidence submitted, there is necessity
for placing the accused under custody
in order not to frustrate the ends of
justice. If the judge finds no probable
cause, the judge cannot be forced to
issue the arrest warrant
The difference is clear: The
executive
determination
of
probable cause concerns itself with
whether there is enough evidence
to support an Information being
filed. The judicial determination of

probable cause, on the other hand,

determines whether a warrant of
arrest should be issued.
The judge does not act as an appellate
court of the prosecutor and has no
capacity to review the prosecutors
determination of probable cause;
rather, the judge makes a
determination of probable cause
independent of the prosecutors
finding.
The RTC should not have ruled on
whether or not there is probable
cause to hold respondents liable for
the crime committed since its duty is
limited only to the determination of
whether the material averments in the
complaint or information are
sufficient to hold respondents for trial.
Considering that the RTC has already
found probable cause, it should have
denied the motion to quash and
allowed the prosecution to present its
evidence and wait for a demurrer to
evidence to be filed by respondents, if
they opt to, or allowed the prosecution
to amend the Information and in the
meantime suspend the proceedings
until the amendment of the
Information without dismissing the
case.
Section 4, Rule 117 of the Revised
Rules of Criminal Procedure clearly
states that if the ground based upon is
that "the facts charged do not
constitute an offense," the prosecution
shall be given by the court an
opportunity to correct the defect by
amendment
If it is based on the ground that the
facts charged do not constitute an
offense, the prosecution shall be given
by the court an opportunity to correct
the defect by amendment. The motion
shall be granted if the prosecution
fails to make the amendment, or the

complaint or information still suffers

from the same defect despite the
amendment. In the present case, the
RTC judge outrightly dismissed the
cases
without
giving
the
prosecution an opportunity to
amend the defect in the
Informations.
The CA, however, still upheld the
ruling of the RTC, stating that
"whatever perceived error the trial
court may have committed is
inconsequential as any intended
amendment to the informations filed
surely cannot cure the defects,"32 and
to justify such conclusion, the CA
proceeded to decide the merits of the
case based merely on the allegations
in
the
Information.
Such
pronouncement,
therefore,
is
speculative and premature without
giving the prosecution the opportunity
to present its evidence or, to at least,
amend the Informations.
Thus, the RTC and the CA, by not
giving the State the opportunity to
present its evidence in court or to
amend the Informations, have
effectively curtailed the State's right to
due process.


(015) ARAULLO vs. OMBUDSMAN
Meaning of probable cause

FACTS:

Araullo worked for Club
Filipino as an electrician, and
was Maintenance Supervisor,
but was dismissed. His labor
complaint
was
initially
dismissed by the Labor Arbiter,
whose ruling was affirmed by
the NLRC.

Upon appeal, both the CA and

this Court ruled that Araullo
was illegally dismissed from
employment. Club Filipino was
then ordered to reinstate
Araullo and to pay him his full
backwages and other monetary
benefits.
Araullo filed a motion for
issuance of a writ of execution
which was approved. The
issuance of the writ was
questioned by Club Filipino on
the ground that it had filed a
Motion to Recompute the
judgment
award,
which
remained unresolved by the
LA. Club Filipino then filed its
Motion to Quash the Writ of
Execution.
Before the motion to quash
could be heard, LA Anni issued
an order quashing the writ and
lifting
the
notice
of
garnishment. LA then inhibited
from the case.
Araullo filed a petition to set
aside LA Annis order, which
was denied by the NLRC and
ordered that the case records
be forwarded to the arbitration
branch of origin, which should
decide on the issues leading to
the final computation of the
award and the issuance of a
writ of execution.
He then filed with the Office of
the Ombudsman the criminal
complaint against respondents,
charging them of violating
Article 206 of the RPC and
Section 3(e) of R.A. No. 3019,
otherwise known as the Anti-
Graft and Corrupt Practices Act.

Araullo alleged that LA Anni is

guilty of issuing an unjust
interlocutory
order
for
granting the motion to quash
filed by Club Filipino despite
the fact that his counsel was
not furnished with a copy of
the said motion, denying him
the right to due process; that
LA Anni and the lawyers of
Club
Filipino
conspired
together
to
delay
the
implementation of the decision
of the court in the labor case.
Araullos
charges
were
dismissed by the Office of the
Ombudsman,
finding
no
probable cause for failure to
establish that the respondents
gave undue advantage to Club
Filipino, or that they acted with
manifest partiality, evident bad
faith, o rgross and inexcusable
negligence.

ISSUE:

Whether the Office of the Ombudsman
committed grave abuse of discretion
in dismissing the criminal complaint
filed by Araullo for lack of probable
cause.

HELD: NO

Probable cause is defined as such facts
as are sufficient to engender a well-
founded belief that a crime has been
committed, and that the persons being
charged are probably guilty thereof. It
can only find support in facts and
circumstances that would lead a
reasonable mind to believe that the
person being charged warrants a
prosecution.

To establish probable cause,
Araullo, being the complainant, then
should have proved the elements of
the crimes alleged to have been
committed. In addition, there should
have been a clear showing of the
respective participation of the
respondents, to at least support a
ruling that would call for their further
prosecution.

In violation of Article 206 of
the RPC, it was necessary to show that,
first, the orders issued by the
respondents to his complaint were
unjust, and second, the said orders
were knowingly rendered or rendered
through inexcusable negligence or
ignorance.
Araullo failed to establish that
the labor officials were impelled by
any motive other than the correction
of this error.
Without a finding of probable
cause against these labor officials, the
dismissal of the charge against Atty.
Balbin, Atty. Tabao and Atty. De Leon,
being private individuals who did not
appear to conspire with their co-
respondents for the commission of a
criminal offense, was also warranted.


(016) Vergara v. Ombudsman, G.R.
No. 174567.
(Main part is the Meaning of Probable
Cause)

FACTS:

On June 2001, the City Council of
Calamba
issued
a
resolution
authorizing Mayor Lajara to negotiate
with landowners in Barangays Real,
Halang, and Uno, for the new city hall
site. During the public hearing, the
choice for the new city hall was
limited to the properties of Pamana
and a lot in Barangay Saimsim,
Calamba.

On November 2001, City Government
of Calamba, through the Mayor,
entered into agreements with Pamana
and Prudential Bank regarding the
sale of their respective properties.
Some days after, the documents were
endorsed by the City Council.
Petitioner alleged that these
documents were not ratified by the
City Council. Petitioner further
alleged various defects with the said
agreements.

On March 2004, the Ombudsman
issued a resolution finding no
probable cause to hold any of the
respondents liable for violation of
Section 3(e) of RA 3019 (Anti-Graft
and Corrupt Practices Act). On
September 2004, petitioner filed a
Motion
for
Reconsideration
questioning the lack of ratification by
the City Council of the contracts, the
overpricing of lots, the inclusion of
roads lots and creek lots, and a lack of
a relocation survey.

The Ombudsman denied the motion

(MR) for lack of merit, stating that
the various acts of the Mayor relating
to the purchase of the lands were
authorized by the City Council and
that lack of ratification alone did not
characterize the purchase of the
properties as one that gave
unwarranted benefits to Pamana or
Prudential Bank nor did it cause injury
to the City. Furthermore, the
Ombudsman stated that the absence
of relocation survey did not affect the
validity of the subject transactions.

The Office of the Solicitor General,
representing
the
Ombudsman,
claimed that there was no grave abuse
of discretion in dismissing the
complaint for violation of RA 3019.
According to the Ombudsman,
conviction under the said law must
contain these requisites: (a) The
accused is a public officer
discharging
administrative,
judicial, or official functions; (b) he
must have acted with manifest
partiality, evident bad faith, or
inexcusable negligence; and (c) his
action caused undue injury to any
party, including the government, or
gave
any
private
party
unwarranted benefits, advantage,
or preference in the discharge of
his functions.

Notwithstanding the contentions of
petitioner, the Ombudsman ruled that
there was no violation of RA 3019 by
the Mayor with regard to the
transactions, there being no undue
injury to the city, nor any
unwarranted benefits to any private
party. Finally, the Ombudsman stated
that mandamus cannot control the
exercise of judgment or discretion.

Thus, the Ombudsman cannot be

compelled by the courts to pursue a
criminal case against herein private
respondents.

ISSUE:

Whether or not the Ombudsman
committed
grave
abuse
of
discretion for dismissing the case
for lack of probable cause.

HELD: NO

No. The Office of the
Ombudsman is vested with the sole
power
to
investigate
and
prosecute motu proprio or upon
complaint of any person, any act or
omission of any public officer or
employee, office, or agency when
such act or omission appears to be
illegal, unjust, improper, or
inefficient. The Ombudsmans power
to investigate and to prosecute is
plenary and unqualified. The
Ombudsman has the discretion to
determine whether a criminal case,
given its attendant facts and
circumstances, should be filed or
not. The Ombudsman may dismiss the
complaint should the Ombudsman
find the complaint insufficient in form
or substance, or the Ombudsman may
proceed with the investigation if, in
the Ombudsmans view, the complaint
is in due form and substance. Hence,
the filing or non-filing of the
information is primarily lodged
within the full discretion of the
Ombudsman.

The Supreme Court has consistently
adopted a policy of non-interference
in the exercise of the Ombudsmans
constitutionally mandated powers,

subject only to certain limitations. In

this case, the Ombudsman dismissed
petitioners complaint for lack of
probable cause based on the
Ombudsmans appreciation and
review of the evidence presented. In
dismissing the complaint, the
Ombudsman did not commit grave
abuse of discretion.

Probable cause is defined 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 need not be based on clear
and convincing evidence of guilt, or
on evidence establishing guilt
beyond reasonable doubt, and
definitely
not
on
evidence
establishing absolute certainty of
guilt, but it certainly demands more
than bare suspicion and can never
be left to presupposition, conjecture,
or even convincing logic.

*Petition was dismissed, the ruling of
the Ombudsman affirmed.

(017) PEDRO G. SISTOZA, petitioner,

vs. ANIANO DESIERTO in his
capacity as Ombudsman, and
ELISEO CO, respondents.

FACTS:
On 10 August 1999, there was a
bidding initiated by the Pre-
Qualification, Bid and Awards
Committee (PBAC) of the Bureau of
Corrections to secure an order of
tomato paste for the food supply of
the inmates of New Bilibid Prison.

Elias General Merchandising offered a
bid of P1,350.00 for 100/170 tins-
grams to one (1) case while RBJJ and
PMS Trading Enterprises tendered
their respective bids for the same
quantity at the higher prices of
P1,380.10 and P1,380.05 per case.
Filcrafts Industries, Inc., proffered
P539.00 for the quantity of 48/198
tins-grams to one (1) case.

Filcraft Industries offer was
disqualified for not meeting certain
qualifications such as offering a non-
registered brand of tomato paste. The
second-lowest bid, from Elias General
Merchandising, won the bidding.
However, Elias General Merchandising
increased the quantity of its tomato
paste while increasing the bid.

This was approved by the PBAC.
Petitioner Pedro Sistoza was the
Director of the Bureau of Corrections,
and had the duty to sign the purchase
order for the tomato paste after his
subordinates have cleared them. He
cursorily read the order, along with
the supporting documents, and then
signed. He endorsed the purchase
order to the DOJ, but it was initially
rejected for being the second-lowest

bidder. Upon learning of the DOJs

rejection, Elias General Merchandising
offered to decrease its bid at
P1,120.00 for 100 cans/170 grams.

The Bureau of Corrections, however,
offered the lowest bid by Filcraft
Industries which Elias General
Merchandising refused. Nevertheless,
Sistoza endorsed Elias General
Mechandisings latest offer to the DOJ.
This was rejected twice until it was
finally approved.

On 22 September 1999 respondent
Eliseo Co, a perennial bidder for
supply of food items of the New Bilibid
Prison, filed an affidavit-complaint
with the Office of the Ombudsman
alleging criminal and administrative
charges for violation of Sec. 3, par. (e),
RA 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act,
against petitioner Pedro G. Sistoza as
Director of the Bureau of Corrections
and officers and members of its
Supply Division and PBAC.

He claimed that Sistoza and his staff
conspired with each other to cause
undue injury to the government and
the inmates of the New Bilibid Prison
by giving undue advantage to Elias
General Merchandise although its bid
was higher in price and lower in
quantity than that offered by Filcrafts
Industries, Inc.

The complaint was initially dismissed
by the Ombudsman. However, on 29
March 2000 the Office of the
Ombudsman.

ISSUE:

Is Sistoza guilty of violating the Anti-
Graft and Corrupt Practices Act based
on his mere signatures in the purchase
orders?

Should
the
SC
order
the
Sandiganbayan to dismiss the case
against Sistoza?

HELD:

Under Sec. 3, par. (e) of the Anti-Graft
and Corrupt Practices Act, manifest
partiality, evident bad faith or gross
inexcusable negligence must be
committed in so blatant and shocking a
manner. Mere procedural lapses and
slight negligence, while relying in good
faith on ones subordinates, do not fall
within the purview of this crime.

The absence of probable cause is a
ground for the dismissal of a criminal
case, in order to save the defendant
from the costs and strain of a senseless
litigation. This applies to the
Ombudsmans Office in relation to the
Supreme Court.

No, Sistoza is not guilty of the crime
charged based merely on his
signatures. To begin with, before
manifest partiality, evident bad faith or
gross inexcusable negligence may even
be considered, the Office of the
Ombudsman should determine with
certainty the facts indicative of the
modalities
of
committing
a
transgression of the statute.
Simply alleging each or all of these
methods is not enough to establish
probable cause, for it is well settled
that allegation does not amount to
proof. Good faith on the part of

petitioner as with any other person is

presumed. The facts themselves must
demonstrate evident bad faith that
connotes not only bad judgment but
also palpably and patently fraudulent
and dishonest purpose to do moral
obliquity or conscious wrongdoing for
some perverse motive or ill will. On
the other hand, gross inexcusable
negligence does not signify mere
omission of duties nor plainly the
exercise of less than the standard
degree of prudence. Rather, it refers to
negligence characterized by the want
of even the slightest care, acting or
omitting to act in a situation where
there is a duty to act, not inadvertently
but willfully and intentionally, with
conscious
indifference
to
consequences insofar as other persons
may be affected.

The facts do not show that Sistoza
actually committed the crime charged
through any of the modes established
by law. Sistoza simply made an
erroneous assessment, while relying,
in good faith, on his subordinates. His
act of cursorily reading the purchase
order was simple negligence, and not
as gross as that of the crime charged.

Yes, the Sandiganbayan should
dismiss the case against Sistoza. In
Cabahug vs People the SC ruled that
the absence of probable cause is a
ground to dismiss a case in order to
save the defendant from the strain and
costs of a senseless litigation. This
power applies to the Office of the
Ombudsman as well.

Petition
for
Certiorari
and
Prohibition granted

(18) SHU vs. DEE

Prosecutor has direction and control

FACTS:

Petitioner Shu is the President of the
3A Apparel Corporation. Petitioner
filed a complaint of falsification of two
Deeds of Real Estate Mortgage against
the respondents before the NBI.

Respondents Jaime Dee, and Edwin So
signed to the two Deeds of Real Estate
Mortgage as witnesses. Respondents
Ramon Miranda, and Enriqueto
Magpantay notarized the Deeds of
Real Estate Mortgage.
Respondent Larry Macillas signature
appeared in the Deeds of Real Estate
Mortgage which was submitted to the
Office of the Registrar of Deeds for San
Juan, Metro Manila.
Based on these deeds, the properties
were foreclosed by the mortgagee,
Metrobank. The NBI conducted an
analysis of the questioned documents
using specimens of signature given by
the petitioner.
The NBI determined that the signature
given by the petitioner and the
signature appearing in the questioned
documents were not made by the
same person.
The NBI filed a complaint with the City
Prosecutor of Makati, charging the
respondents of the crime of forgery
and falsification of public documents.

Respondents alleged that they were

not allowed to participate in the
investigation conducted by the NBI
and were not allowed to present
evidence, thus depriving them of due
process.
The prosecutor dismissed the
complaint on the ground that the
evidence merely proves that the
signature submitted to the NBI, and
the signature appearing on the
questioned documents were not made
by the same person, and not proof that
the respondents forged them. As well
as that according to the attached
documents to the counter-affidavit of
the respondents, the petitioner
availed of the credit line, and
benefited from its proceeds.
Petitioner appealed the prosecutors
resolution to the Secretary of Justice.
The SOJ overturned the resolution of
the prosecutor, stating that the
prosecutor failed to consider the
evidentiary value of the findings of the
NBI, and that it is entitled to full faith
and credit in the absence of proof of
irregularity.
The SOJ further states that the expert
evidence, the disclaimer of the
petitioner that he did not sign any
promissory note, the lack of proof of
receipt of the proceeds from the loan,
all tended to prove that he did not
execute the subject deeds. Finding that
there is probable cause.

The respondents submitted a motion

for reconsideration to the SOJ, which
was subsequently denied.
The respondents elevated the matter
to the CA. The CA annulled the
resolution of the SOJ, stating that the
respondents were denied of their right
to due process in the proceedings
before the NBI and the SOJ.
In the NBI, the respondents were not
furnished a copy of the complaint,
were not required to file their answer
and present evidence, and all the
evidence at the NBI level were
provided by the petitioner.

In the SOJ, the respondents were not
furnished with the petition for review
that the petitioner filed, and were not
required to file an answer or
comment.

The CA also took note that the persons
directly and personally involved in the
investigation of the case, the NBI agent
and the prosecutor, were convinced
that the evidence were not sufficient
for purposes of filing charges against
the respondents.

The recommendation of the filing of
the complaint came from the NBI Chief
and the SOJ who did not personally
investigated the case, while the
prosecutor who earlier dismissed the
complaint was able to personally
examine the pieces of evidence
presented.

Petitioner then elevated the matter to
the SC.

ISSUE:
Whether or not the respondents were
accorded with their right to due
process.
Whether or not the CA erred in giving
credence to the findings of the
investigating NBI agent and the City
Prosecutor, over the SOJ.
HELD:
Yes. The respondents were
accorded with their right to due
process.
Due process is simply the opportunity
to be heard. What the law prohibits is
not the absence of previous notice, but
its absolute absence and lack of
opportunity to be heard. Right to be
heard is deemed to have been
complied with when a party was
heard through the motion of
reconsideration he had filed.

Assuming that, if in the beginning,
there is a defect in due process, its
deemed cured by the subsequent filing
of the motion.

In the allegation of there was also a
denial of due process during the NBI
investigation, the Court stresses that
the functions of the agency is merely
investigatory and informal in nature.
It has no judicial or quasi-judicial
powers and is incapable of granting
any relief to any party; it cannot even
determine probable cause. Its findings
are merely recommendatory, and it
renders assistance when requested in
the investigation or detection of
crimes in order to prosecute the

persons responsible. Since the NBIs

findings are merely recommendatory,
there is no denial of the right to due
process that had taken place.

Yes. The CA erred when it declared
that the SOJ committed grave abuse
of discretion.
Probable cause pertains to facts and
circumstances sufficient to support a
well-founded belief that a crime has
been committed and the accused is
probably guilty thereof.

It is well-settled that in order to arrive
at a finding of probable cause, the
elements of the crime charged should
be present. In determining these
elements for purposes of preliminary
investigation, only facts sufficient to
support a prima facie case against the
respondent are required, not absolute
certainty. Thus, probable cause
implies mere probability of guilt.

The Court ruled that the findings of
the Secretary of Justice are more in
accord with the duty to determine the
existence of probable cause than the
findings of the city prosecutor.

The Secretary of Justice made a
holistic review of the parties
submitted pieces of evidence in ruling
that "the expert evidence, the
disclaimer of the petitioner that he did
not sign any promissory note, the lack
of proof of receipt of the proceeds of
the loan, all tend to prove that he did
not execute the subject deeds. Also,
the finding in the assailed resolution
that the credit line of the petitioner
with
Metrobank
is
sufficient
consideration for him to have

executed the deeds is gratuitous and

conjectural.

From the evidence submitted by the
parties, the petitioner offered
sufficient evidence showing that
falsification might have been
committed and that the respondents
might have been responsible therefor.

The findings of the city prosecutor are
not proper in a preliminary
investigation but should be threshed
out in a full-blown trial.

The preliminary investigation is not
the occasion for the full and
exhaustive display of the parties
evidence. Simply put, in determining
probable cause, the average man
weighs facts and circumstances
without resorting to the rules of
evidence that, as a rule, is outside his
technical knowledge.
The determination of probable cause
is essentially an executive function,
lodged in the first place on the
prosecutor who conducted the
preliminary
investigation.
The
prosecutor's ruling is reviewable by
the Secretary who, as the final
determinative authority on the matter,
has the power to reverse, modify or
affirm the prosecutor's determination.
It is well-settled that the findings of
the Secretary of Justice are not subject
to interference by the courts, save
only when he acts with grave abuse of
discretion amounting to lack or excess
of jurisdiction.
(19) SORIANO vs. MARCELO
FACTS:

Petitioner filed an affidavit-complaint

against Mely S. Palad (Palad), a bank
examiner of the Bangko Sentral ng
Pilipinas, for Falsification of Public
Documents and Use of Falsified
Document punishable under Article
172 of the Revised Penal Code. The
complaint was filed with the Office of
the City Prosecutor of Manila.
Acting on the complaint, Balasbas
issued a Resolution on 27 August
2001 recommending that Palad be
charged in court with Falsification of
Public Documents and that the charge
of Use of Falsified Document be
dropped for lack of merit.
The Resolution of 27 August 2001 was
forwarded to 2nd Assistant City
Prosecutor Leoncia R. Dimagiba
(Dimagiba) who recommended the
filing of the information. This
Resolution was forwarded to the City
Prosecutor for approval.
Palad filed a Motion to Re-Open Case
on the ground that she was not given a
copy of the subpoena or any notice
regarding the complaint filed against
her.
Dimagiba
recommended
the
reopening of the case. The City
Prosecutor
approved
the
recommendation. Thus, Balasbas
issued a subpoena to the parties
setting the case for investigation.
The reopening of the case prompted
petitioner to file with the Office of the
Ombudsman a criminal complaint
against Balasbas for violation of
Section 3(e) of Republic Act No. 3019
(RA 3019), otherwise known as the
Anti-Graft and Corrupt Practices Act.

Petitioner alleged that in the

reopening of the case Palad received
an unwarranted advantage or
preference,
through
manifest
partiality, evident bad faith and gross
inexcusable negligence, causing undue
injury to petitioner.
Graft Investigation Officer Charity
Grace A. Rico of the Office of the
Ombudsman
recommended
the
dismissal of petitioners complaint for
want of sufficient basis. This
recommendation was approved by
Ombudsman Simeon V. Marcelo. The
Motion for Reconsideration was
denied for lack of merit.


Hence, the present petition for
certiorari.
ISSUE:
Whether or not the Office of the
Ombudsman acted with grave abuse
of discretion, amounting to lack or in
excess of jurisdiction, in dismissing
the complaint against Balasbas.
HELD:
The instant petition is a special civil
action for certiorari which is a remedy
meant to correct only errors of
jurisdiction, not errors of judgment.
Petitioner assails the resolution of the
Office of the Ombudsman dismissing
the criminal case against Balasbas.
Petitioner
claims
that
the
subordinates were not supposed to
blindly follow illegal orders of their
superiors. He insists that Balasbas is
still liable for the reopening of the case
without lawful reasons, for no law
gives his superiors the right to
indiscriminately order the reopening

of a case. Petitioner argues that

Balasbas could have opted not to issue
a subpoena knowing that the directive
of the City Prosecutor to reopen the
case of Palad was not warranted.
Thus, for giving unwarranted
advantage or preference to Palad that
caused undue injury to petitioner,
Balasbas must be held liable for
violation of Section 3(e) of RA 3019.

The arguments raised by petitioner
are not errors involving jurisdiction
but one of judgment, which is beyond
the province of the extraordinary
remedy of certiorari.
This notwithstanding, may this Court
review the findings of the Office of the
Ombudsman? The general rule has
been that the courts will not interfere
with the discretion of the prosecutor
or the Ombudsman, in the exercise of
his investigative power, to determine
the specificity and adequacy of the
averments of the offense charged.
Equivel vs. Ombudsman - The
Ombudsman is empowered to
determine whether there exists
reasonable ground to believe that a
crime has been committed and that
the accused is probably guilty thereof
and, thereafter, to file the
corresponding information with the
appropriate courts. Settled is the rule
that the Supreme Court will not
ordinarily interfere with the
Ombudsmans exercise of his
investigatory and prosecutory powers
without good and compelling reasons
to indicate otherwise.

The Ombudsman has the full

discretion to determine whether or
not a criminal case should be filed.
Nonetheless, this Court is not
precluded from reviewing the
Ombudsmans action when there is a
charge of grave abuse of discretion.
Grave abuse of discretion implies a
capricious and whimsical exercise of
judgment tantamount to lack of
jurisdiction.

The Ombudsmans exercise of power
must have been done in an arbitrary
or despotic manner which must be so
patent and gross as to amount to an
evasion of a positive duty or a virtual
refusal to perform the duty enjoined
or to act at all in contemplation of
law. 1 [8] An examination of the
records would show that the Office of
the Ombudsman did not act with
grave abuse of discretion, amounting
to lack or in excess of jurisdiction, in
dismissing the complaint against
Balasbas.

Balasbas, as Assistant City Prosecutor,
was charged with violation of Section
3(e) of the Anti-Graft and Corrupt
Practices Act. The elements of the
offense of violation of Section 3(e) of
RA 3019, as amended, are as follows:


1) The accused must be a
public
officer
discharging
administrative, judicial or official
functions;

2) He must have acted with
manifest partiality, evident bad faith
or inexcusable negligence; and

3) That his action caused
undue injury to any party, including

the government, or gave any private

party
unwarranted
benefits,
advantage or preference in the
discharge of his functions.

Petitioner failed to show that Balasbas
acted with manifest partiality, evident
bad faith or inexcusable negligence in
issuing the subpoena. As further
pointed out by the Office of the
Ombudsman in its Resolution of 29
July 2002, there was no undue injury
because petitioner had suffered no
actual damage.

Balasbas, as investigating prosecutor,
had no power or control over the final
disposition of Palads motion to reopen
the case. Conducting a preliminary
investigation for the purpose of
determining whether there exists
probable cause to prosecute a person
for the commission of a crime,
including the determination of
whether to conclude, reopen or
dismiss the criminal complaint subject
of the preliminary investigation, is a
matter that rests within the sound
discretion of the provincial or city
prosecutor.

This is clear from the provision of
Section 4, Rule 112 of the Revised
Rules on Criminal Procedure which
specifically states that no complaint or
information may be filed or dismissed
by an investigating fiscal without the
prior written authority of the
provincial or city fiscal or chief state
prosecutor or the Ombudsman or his
deputy.
We find that the Office of the
Ombudsman, acting within the bounds
of its constitutionally mandated duty,
did not commit grave abuse of

discretion in dismissing the complaint

against Balasbas.


(20) BALGOS vs. SANDIGANBAYAN
Who are authorized to conduct
preliminary investigation Sec. 2
(Effect of Filing of Case in Court)
While the public prosecutor has
the sole direction and control in
the prosecution of offenses, once
the complaint or information is
filed in court, the court thereby
acquires jurisdiction over the
case and all subsequent actions
that may be taken by the public
prosecutor in relation to the
disposition of the case must be
subject to the approval of the
said court. (citing Crespo vs.
Mogul)

FACTS:

Petitioners were charged with
violation of Section 3(c) of Republic
Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practice Act, as
amended, in an information that was
filed with the Sandiganbayan on April
18, 1986 by the Special Prosecutor
which was approved by the Deputy
Tanodbayan, after a preliminary
investigation.

On December 27, 1984, in Bagabag,
Nueva Vizcaya, the accused Flaviano
D. Balgos, Jr., acting Clerk of Court of
the Regional Trial Court in
Bayombong, Nueva Vizcaya and also
the Ex-Officio provincial sheriff of the
said province; and the other accused
Virgilio F. Dacayo, Jesus C. Sison and

Leon C. Cuaresma, Deputy Provincial

Sheriffs of said province, enforced a
Writ of Execution against a Mustang
car registered in the name of Leticia
Acosta-Ang, despite their knowledge
that the registered owner is not the
judgment debtor in Civil Case No.
4047, which is the subject of the said
writ of execution, thereby causing
undue injury to the said Leticia
Acosta-Ang (complainant) and giving
unwarranted benefits to the judgment
creditor in said civil case.

On March 18,1987, Antonio Uy Lim,
the plaintiff and prevailing party in
Civil Case No. 4047, filed a complaint
for rescission of the sale of the car by
Juanito Ang to private respondent
Leticia Acosta-Ang for being allegedly
in fraud of creditors.

Petitioners filed a motion for
reinvestigation in the Tanodbayan in
view of the abovementioned
complaint for recission, and after
conducting such, the latter issued an
order resolving to dismiss the case
against the petitioners for lack of
merit and withdraw the information
filed in the interest of justice.

On April 22, 1988, the Tanodbayan
filed with the Sandiganbayan a motion
to withdraw the information against
petitioners. This was denied on June
29, 1988.

On September 1, 1988, petitioners
filed a motion to suspend proceedings
in the criminal case against them on
the ground of the existence of a

prejudicial question in Civil Case No.

5307. This was likewise denied by the
Sandiganbayan on October 24,1988.

Hence, the instant petition alleging
that the Sandiganbayan committed a
grave abuse of discretion amounting
to lack or excess of jurisdiction in
denying the aforestated motions.

ISSUES:
Whether or not the denial by the
Sandiganbayan of the motion to
withdraw the information and of
another
motion
to
suspend
proceedings on the ground of a
prejudicial question in a pending civil
action constitute a grave abuse of
discretion.

HELD:
NO

In the case of Crespo vs. Mogul, we
ruled that while the public prosecutor
has the sole direction and control in
the prosecution of offenses, once the
complaint or information is filed in
court, the court thereby acquires
jurisdiction over the case and all
subsequent actions that may be taken
by the public prosecutor in relation to
the disposition of the case must be
subject to the approval of the said
court.

Before a re-investigation of the
case may be conducted by the
public prosecutor, the permission
or consent of the court must be
secured. And if after such
reinvestigation the prosecution
finds a cogent basis to withdraw
the information or otherwise cause
the dismissal of the case, such

proposed course of action must be

addressed to the sound discretion
of the court.

In denying said motion, the court
agrees with the Sandiganbayan that
the issue in the criminal case was not
so much whether the car was owned
by Juanita Ang or Leticia Ang, but
whether it was rightly seized, that is,
whether or not it was attended with
partiality as to extend unwarranted
benefits to the judgment creditor.
Although at the reinvestigation, the
Tanodbayan was persuaded that in
fact the sale of the car to Leticia Ang
was fraudulent, this did not
necessarily clear petitioners of the
aforesaid Anti-Graft charge against
them. Still, the burden is on the
petitioners to establish that they acted
in good faith in proceeding with the
execution on the car even they were
presented evidence tending to show it
did not belong to Juanito Ang
anymore.

The pending civil case for the
annulment of the sale of the car to
Leticia Ang is not determinative of the
guilt or innocence of the petitioners
for the acts allegedly committed by
them in seizing the car. Even if in the
civil action it is ultimately resolved
that the sale was null and void, it does
not necessarily follow that the seizure
of the car was rightfully undertaken.
The car was registered in the name of
Leticia Ang six (6) months before the
seizure. Until the nullity of the sale is
declared by the courts, the same is
presumptively valid. Thus, petitioners

must demonstrate that the seizure

was not attended by manifest bad
faith in order to clear themselves of
the charge in the criminal action.

WHEREFORE, the petition is DENIED
for lack of merit and the restraining
order dated June 6, 1989 is hereby
lifted.

(021) EJERCITO vs. COMELEC

FACTS:



ISSUES:



HELD:


(022) AGUINALDO vs. VENTUS
Motion for Reconsideration; filing of a
motion for reconsideration is an
integral part of the preliminary
investigation proper.

FACTS:

This case involves a petition for
review on Certiorari seeking to nullify
and set aside the decision of CA with
regard to the dismissal of the Petition
for Certiorari filed by the petitioners
for lack of merit.

The respondents filed a complaint-
affidavit for estafa against the
petitioners before the Office of the City
Prosecutor of Manila. Claiming to be
business partners in financing casino
players, private respondents alleged
that the petitioners connived in

convincing them to part with their

P260,000.00 in consideration of a
pledge of 2 motor vehicles which the
latter had misrepresented to be
owned by the petitioner, but turned
out to be owned by one De Castro,
manager/operator of LEDC Rent-A-
Car.

Perez filed a counter-affidavit alleging
that his only participation in the
transaction
between
private
respondents and petitioner was
limited to having initially introduced
them to each other.

The private respondent, then, filed
their reply-affidavit contending that
Perez was the one who showed them
photocopies of the registration paper
of the motor vehicle in the name of
Aguinaldo.

On a rejoinder-affidavit, Perez states
that neither original nor photocopies
of the registration was required by
private respondents to be submitted
to them because from the very start,
Aguinaldo informed them that she
merely leased the vehicles from LEDC
rent-a-car.

Assistant City Prosecutor
recommended that both petitioners to
be indicted in court for estafa and that
Aguinaldo failed to appear and to
submit any controverting evidence
despite the subpoena.

RTC information was file charging
the petitioners of the crime of estafa.

Perez was arrested thus; he filed for
an Urgent Motion for Reduction of Bail
to be Posted in Cash which was then
granted. Also, the petitioners filed a

Very Urgent Motion to Recall or Quash

Warrants of Arrest on the ground that
the resolution was not yet attained its
finality and that they intended to file a
motion for reconsideration.

Petitioners filed with the OCP of
Manila
their
Motion
for
Reconsideration and Motion for the
withdrawal of the Information
Prematurely Filed With the RTC-
Manila City on the ground that no
deceit or false pretenses was
committed
because
private
respondents were fully aware that she
does not own the pledged motor
vehicles. The Motion for Withdrawal
of Information was granted and
directed the recall of the arrest
warrant only as so far as Aguinaldo
was concerned, pending resolution for
her motion for reconsideration with
the OCP.

Petitioners filed an Urgent Motion for
Cancellation of Arraignment, pending
resolution of their motion for
reconsideration filed with the OCP of
Manila. However, it was ordered the
proceedings to be deferred until the
resolution of petitioners motion for
reconsideration.

The OCP of Manila, filed a Motion to
Set Trial Case for Trial, considering
that
petitioners
motion
for
reconsideration and for withdrawal of
the information have already been
denied for lack of merit.

DOJ petition for review; The public
respondent, however, issued an order
directing the issuance of a warrant of
arrest against Aguinaldo and the
setting of the case for arraignment.

Urgent Motion to Cancel Arraignment

and Suspend Further Proceedings
until their petition for review before
DOJ is resolved with finality. Both
motions were granted.

De Castro, filed a Motion to Reinstate
Case and to Issue Warrant of Arrest on
the ground that she was the private
complainant in the estafa case that
had
been
ordered
archived.
Petitioners, however, filed an
Opposition with Motion to Expunge,
alleging that De Castro is not a party
to the said case, which is in active and
waiting for the resolution of their
petition for review before the DOJ.

De Castro filed a Manifestation
informing the public respondent that
the DOJ had already promulgated a
Resolution denying the petitioners
petition for review.

The public respondent issued an
Order granting the Motion to
Reinstate Case and to Issue Warrant of
Arrest the warrant of arrest issued
against accused Aguinaldo was
recalled pending resolution of the
Petition for Review filed with DOJ; the
Petition for Review was subsequently
dismissed; and the accused Aguinaldo
has not yet posted bail bond.

The motions were granted and
reinstated the warrant of arrest be
issued against accused Aguinaldo.

Motion for Reconsideration with
Motion to Quash Warrant of Arrest
was filed by the petitioners but was
denied and setting petitioners
arraignment, as the Rules of Court
allows only a 60-period of suspension
of arraignment; citing the Crespo case,

the issuance of the warrant of arrest is

best left to the discretion of the trial
court and that the records do not
show that the DOJ has resolved the
petition for review.

Court Of Appeals petitioners filed a
petition for certioratri attributing
grave abuse of discretion amounting
to lack or excess of jurisdiction on the
part of the public respondent,
however, the CA dismissed the
petition for lack of merit. Also, the
motion for reconsideration was
denied.

ISSUES:

WON the CA failed to appreciate that
the motion to reinstate the case and
issue a warrant of arrest was filed by
De Castro who is not a party to the
said criminal case.

WON the procedural technicality that
the
suspension
allowed
for
arraignment is already beyond the 60-
day period may be relaxed in the
interest of an orderly and speedy
administration of justice.

WON preliminary investigation on
the criminal case by the office of the
City Prosecutor of Manila has not yet
been completed.

HELD:
Petition is denied for lack of merit.

Yes. De Castro is not a party in the
criminal case as per the records show
that De Castro is not even a private-
complainant, but a mere witness for
being the owner of the vehicles
allegedly used by the petitioners in

defrauding and convincing private

respondents to part with their
P260,000.00.

No. The 60 days limiting the
suspension for arraignment under the
rules of court is not merely a
directory; thus, estafa case against
them cannot proceed until the DOJ
resolves their petition for review with
finality. In Samson v. Judge Daway, the
Court explained that while the
pendency of a petition for review is a
ground for suspension of the
arraignment, the aforecited provision
limits the deferment of the
arraignment to a period of 60 days
reckoned from the filing of the
petition with the reviewing office. It
follows, therefore, that after the
expiration of said period, the trial
court is bound to arraign the accused
or to deny the motion to defer
arraignment.

No. The Court believes that the period
of almost one (1) year and seven (7)
months from the time petitioners filed
their petition for review with the DOJ
on February 27, 2004 to September
14, 2005 when the trial court finally
set their arraignment, was more than
ample time to give petitioners the
opportunity to obtain a resolution of
their petition. In fact, the public
respondent had been very liberal with
petitioners in applying Section 11 (c),
Rule 116 of the Rules of Court which
limits the suspension of arraignment
to a 60-day period from the filing of
such petition. Indeed, with more than
eleven (11) years having elapsed from
the filing of the petition for review and
petitioners have yet to be arraigned, it
is now high time for the continuation
of the trial on the merits in the

criminal case below, as the 60-day

period counted from the filing of the
petition for review with the DOJ had
long
lapsed.


Yes. Having submitted his Counter-
Affidavit and Rejoinder-Affidavit to
the OCP of Manila before the filing of
Information for estafa, Perez cannot
be heard to decry that his right to
preliminary investigation was not
completed. In petitioners' motion for
reconsideration Resolution of ACP
Gonzaga, Aguinaldo relied mostly on
the Counter-Affidavit and Rejoinder-
Affidavit of Perez to assail the
recommendation of the prosecutor to
indict her for estafa. Since the filing of
such motion for reconsideration was
held to be consistent with the
principle of due process and allowed
under Section 56 of the Manual for
Prosecutors, she cannot complain
denial of her right to preliminary
investigation.

In support of their argument,
petitioners
cite
Sales
v.
Sandiganbayan41 wherein it was held
that since filing of a motion for
reconsideration is an integral part of
the preliminary investigation proper,
an Information filed without first
affording the accused his right to a
motion for reconsideration, is
tantamount to a denial of the right
itself to a preliminary investigation.
However, in the case at bar, the
petitioners were afforded their right
to move for reconsideration of the
adverse resolution in a preliminary
investigation when they filed their
Motion for Reconsideration and
Motion for the Withdrawal of

Information Prematurely Filed with

The RTC Manila.

(023) GIL V. MANLAVI vs. JUDGE
EUSTAQUIO Z. GACOTT, JR.,
Regional Trial Court, Branch 47,
City of Puerto Princesa

FACTS:

Complainant is a senior police
officer who charged respondent with
partiality, miscarriage of justice and
knowingly rendering an unjust
decision in connection with the
dismissal of Criminal Cases Nos. 9210
(Illegal Possession of Explosives
Intended for Illegal Fishing) and 9211
(Illegal Possession of Illegally Caught
Fish).

The accused moved to quash
Criminal Case No. 9210 on the ground
that the evidence of the prosecution
was the product of a warrantless and
illegal search and seizure. Respondent
granted the motion citing the
admission of the prosecution that the
search and seizure was not covered by
a search warrant, and that the search
warrant presented in court was issued
after the fact. Complainant contended
that the confiscation of the fish in the
absence of a search warrant was
allowed under Circular No. 130 (s.
1967) of the Office of the President.

The accused moved to quash
Criminal Case No. 9211 on the ground
that the information failed to charge
the offense of illegal possession of fish
caught by explosives for its failure to
allege the element "for profit." The
City Prosecutor admitted the omission
in the information of the phrase but
claimed that said omission was a mere
technicality. Respondent granted the
Motion because it failed to allege two

essential elements: (1) that the

accused had knowledge that the fish
were illegally caught with the use of
explosives; and (2) that they intended
to dispose of or sell the fish for profit.

ISSUE:

Whether or not a quashal of the
complaint or information cannot be
done without the prior written
approval of the provincial prosecutor.

HELD:

NO. Complainant's argument is
misplaced.


Complainant invokes Section
4, Rule 112 of the New Rules on
Criminal Procedure, which provides:
xxx xxx xxx
No
complaint
or
information may be filed
or dismissed by an
investigating
fiscal
without the prior written
approval
of
the
provincial or city fiscal
or chief state prosecutor.
xxx xxx xxx

Said provision applies to the
conduct
of
the
preliminary
investigation, which is within the
control of the public prosecutor. It has
no application in a case where the
information is already filed before the
proper court. In fact, the epigraph of
Rule 112 is "Duty of investigating
fiscal."

In the case at bench, the
accused moved for the quashal of the
criminal cases after their arraignment.
As a general rule, an accused can move
for the quashal of the information on
any ground before arraignment
(Revised Rules of Court, Rule 117, Sec.
1). However, the rule admits of some

exceptions such as where there is no

offense charged, for what controls is
not the designation of the offense
charged in the information but the
allegations of the constitutive
elements of the offense. Any ambiguity
in the information shall be resolved in
favor of the accused.

WHEREFORE, the complaint is
DISMISSED.

(024) Filemon Verzano,Jr.,
petitioner vs Francis Paro, et.al.,
respondents

Facts:

On March 2002, Verzano former
district manager of Wyeth Philippines,
Inc. for the islands of Panay and
Negros was dismissed from service
upon administrative complaint filed
against him.

The complaint was founded on
petitioner's alleged violation of
company policy on prohibited sale of
drug samples given for free to doctors
and for the unauthorized act of
transferring of the stocks within the
same area falsely creating an
impression that there was a sale. After
conducting its own investigation and
giving petitioner an opportunity to
explain his side, wyeth resolved to
dismiss petitioner tendering him a
Notice of Termination.

Aggrieved, Verzano filed a complaint
for illegal dismissal with Regional
Labor Arbitration Board, NLRC,
Bacolod City against Wyeth. Attached
were the affidavits of respondents
Paro and Florencio alleging that the
respondents' testimony are false and
incriminatory machination. The

affidavits of the respondents

contained falsehood particularly on
the material date of the alleged sale of
products which are to be given free to
doctors.

Subpoenas were issued by the City
Prosecutor against respondents for
the submission of their respective
counter-affidavits; however, the
return of the subpoenas showed that
respondents could not be located at
their given addresses.In a resolution,
the city prosecutors resolved to
dismiss Verzano's complaint finding
no probable cause and insufficiency of
evidence.

Verzano filed a motion for
reconsideration, which was denied by
the city prosecutor in a resolution.
Verzano appealed the resolution oof
the city prosecutor to the office of
regional state prosecutor via petition
for review, but regional state
prosecutor finding merit in Verzano's
petition reversed and directed the
prosecutor's office to file information
for perjury against Paro, Florencio.

Aggrieved, the respondents filed a
motion for reconsideration, which was
denied by the Regional State
Prosecutor.

On September 2004 respondents filed
a petition for certiorari before the CA
assailing the resolutions of the
regional state prosecutor which
reversed the earlier resolution of the
city prosecutor and prayed for a TRO
from CA.

On October 2004, MTC issued
warrants
of
arrest
against
respondents, Florencio posted bail

and Paro followed suit on Ocotber 8,

2004.

On October 14, 2004 a TRO was issued
by CA enjoining the public respondent
chief prosecutor from acting on the
assailed order issued by the regional
state prosecutor for a period of 60
days from receipt. In light of the TRO,
respondents filed with MTCC a
manifestation and urgent motion to
suspend proceedings which was
granted by the MTCC.

On July 28, 2005 CA ruled in favor of
the respondents, granting the petition
of the respondents. That the regional
state prosecutor committed grave
abuse of discretion when he directed
the filing of the information for
perjury on the reason of no counter-
affidavits were submitted by
respondents. Verzano petitioned for a
motion for reconsideration but was
denied by CA.

Issues:

WON the petition filed by respondents
with CA had been rendered moot and
academic by the filing of the cases in
court.

WON the regional state prosecutor did
not commit grave abuse of discretion
in reversing the resolution of the city
prosecutor.

WON the petition for certiorari filed
by herein private respondents with
the CA is not the proper remedy.

Ruling:

Petition has no merit.

(1)

The rule therefore in this

jurisdiction is that once a
complaint or information is
filed in Court any disposition
of the case as its dismissal or
the conviction or acquittal of
the accused rests in the
sound discretion of the
Court.

Although the fiscal retains the
direction and control of the
prosecution of criminal cases even
while the case is already in Court
he cannot impose his opinion on
the trial court. The Court is the
best and sole judge on what to do
with the case before it. The
determination of the case is within
its exclusive jurisdiction and
competence. A motion to dismiss
the case filed by the fiscal should
be addressed to the Court who has
the option to grant or deny the
same. It does not matter if this is
done before or after the
arraignment of the accused or that
the motion was filed after a
reinvestigation
or
upon
instructions of the Secretary of
Justice who reviewed the records
of the investigation.

(2)

The justice secretary's power

of review may still be availed
of despite the filing of
information in court.

The case record will show that
your Office, in the determination of
probable cause vis--vis the
attending set of facts and
circumstances, failed to consider
the application of the procedure
laid down under Section 3
paragraph (d) of Rule 112 of the

Revised Rules of Procedure which

provides:

If the respondent cannot be
subpoenaed, or if subpoenaed, does
not submit counter-affidavits within
the ten (10)-day period, the
investigating officer shall resolve the
complaint based on the evidence
presented by the complainant. In the
instant case, the Investigating
Prosecutor found ground to continue
with the inquiry, which is why he
issued subpoenas to the respondents
to submit their counter affidavit
within the 10-day period, since he
could have dismissed it initially if
indeed there was really no evidence to
serve as a ground for continuing with
the inquiry.

For failure of the respondents to file
their respective counter-affidavits,
they are deemed to have forfeited
their
right
to
preliminary
investigation as due process only
requires that the respondent be given
the opportunity to submit counter-
affidavit, if he is so minded.

The conclusion reached by the
Regional
State
Prosecutor
is
manifestly wrong as the CA was
correct when it observed that the
issuance of a subpoena would become
unceremoniously clothed with the
untoward implication that probable
cause is necessarily extant.(3) CA
found that the Regional State
Prosecutor acted with grave abuse of
discretion when he ordered the City
Prosecutor to file the Information for
perjury against respondents. It was
because of the CA Decision that the
City Prosecutor eventually filed two

Motions for Leave to Withdraw

Information.

The court may deny or grant a motion
to withdraw information, not out of
subservience to the (Special)
Prosecutor, but in faithful exercise of
judicial discretion and prerogative.
The dismissal of the two information
against respondents were subject to
the MTCCs jurisdiction and discretion
in view of the circumstances of the
case at bar. Such dismissal ultimately
renders the case moot and academic.

(025) ALCARAZ vs. GONZALEZ
Facts:
At around 10:05 a.m. of August 11,
2000, 61-year-old Ramon C. Gonzalez
was driving his Nissan Cefiro car with
plate no. UPW-298 along the right
outermost lane of the South-Luzon
Expressway. He was on his way to
Makati City and had just passed the
Sucat toll gate.
Atty. Arnel C. Alcaraz, a Customs
Collector of the Bureau of Customs,
Batangas Port, was driving his Nissan
Infiniti car with plate no. CNH-338. He
was in the middle lane of the South-
Luzon Expressway, between the Sucat
and Bicutan Interchange, on his way to
Manila from Batangas City. He was
armed with a .38 caliber pistol and
had with him Mission Order No. 699-
2000, to expire on August 21, 2000.
Since Alcaraz intended to use the
Skyway, he signaled, and proceeded to
the right-most lane which was
reserved for vehicles taking the
Skyway.

Gonzalez, who was on the right-most

lane, was forced to swerve his car to
the right to avoid colliding with
Alcaraz's vehicle and nearly hit the
concrete island. Nonplussed, Gonzalez
chased after Alcaraz, opened his
windows and shouted at Alcaraz,
demanding to know why the latter
suddenly cut into his lane. Alcaraz
retorted that he had signaled that he
was swerving to the right. Gonzalez
reproved Alcaraz and drove on.
Alcaraz drove his car to Gonzalez's
right. Upon nearing an island, Alcaraz
raised his pistol towards Gonzalez and
fired twice: the first bullet hit the right
front window of the vehicle and exited
at the left rear door; the second bullet
hit the left rear window of Gonzalez's
car. Alcaraz hurriedly drove away
from the scene, but was intercepted by
the PNCC guards at the Skyway toll
gate. The guards confiscated from
Alcaraz the .38 pistol with 7 live
bullets and 3 empty shells.
Gonzalez reported the matter to the
Paraaque City Police Station where
he gave a statement to the police
investigator, and filed a criminal
complaint for attempted homicide
against Alcaraz.
On August 11, 2000, Alfredo Tan
Buraga, Officer-in-Charge of the
Paraaque Police Station, filed a
criminal complaint for attempted
homicide against Alcaraz in the Office
of the City Prosecutor of Paraaque
City.
After the Office of the City Prosecutor
conducted an inquest, an Information
for attempted homicide against

Alcaraz was filed with the MeTC of

Paraaque City.
On motion of Alcaraz, the MeTC
ordered the City Prosecutor to
conduct a preliminary investigation.
In his counter-affidavit, Alcaraz
admitted having fired his gun towards
the car of Gonzalez. However, he
alleged that Gonzalez opened his car
window, uttered invectives and
waived a dirty finger at him. Gonzalez
then proceeded to throw coins at him,
hitting him on the chest, and again
uttered invectives. He saw Gonzalez
reach for a short firearm and aim it at
him. This prompted him to take his
firearm which was on the passenger
seat, and fire it downwards twice onto
the right passenger door of Gonzalez's
vehicle. Alcaraz claimed that he did
not aim his gun at Gonzalez; he had no
intention of hitting Gonzalez, and only
wanted to scare him. At the police
station, Gonzalez identified himself as
the brother of Congressman Jose Mari
Gonzalez.
In his reply-affidavit, Gonzalez
insisted that Alcaraz attempted to kill
him. He denied having thrown coins at
Alcaraz and that he had a gun at the
time. Gonzalez pointed out that
Alcaraz's allegation that he was
defending himself when he fired his
gun was in effect an admission of
intent to kill.
The Investigating Prosecutor resolved
to maintain his finding of probable
cause of attempted homicide against
Alcaraz and to retain the Information.
Alcaraz filed a motion for
reconsideration, and when it was
denied, filed a petition for review with

the
City
Prosecutor's
Department of Justice.

Office,

On November 26, 2001, then

Secretary of Justice Hernando Perez
issued a Resolution granting the
petition and ordering the City
Prosecutor
to
withdraw
the
Information.
According to the Justice Secretary,
Gonzalez failed to prove beyond
reasonable that Alcaraz had intended
to kill him.Gonzalez filed a motion for
reconsideration,
which
the
Undersecretary of Justice denied on
January 29, 2003.
Gonzalez then filed a petition for
review under Rule 43 of the 1997
Rules of Civil Procedure before the CA,
seeking the reversal of the Justice
Secretary's Resolution. He claimed
that the Secretary acted beyond his
authority in finding no probable cause
to charge Alcaraz with attempted
homicide and for ordering the City
Prosecutor
to
withdraw
the
Information. He insisted that by
invoking self-defense, Alcaraz thereby
admitted his intention to kill him
(Gonzalez). He claimed that Alcaraz's
claim of self-defense should be
ventilated during trial on the merits.
In his comment on the petition,
Alcaraz averred that the CA had no
appellate jurisdiction over the
petition, and that Gonzalez had no
legal standing to file the petition. He
insisted that the remedy from an
adverse resolution of the Justice
Secretary is to file a petition
for certiorari under Rule 65 of the
Rules of Court, as amended, grounded
on grave abuse of discretion

amounting to excess of jurisdiction,

not one under Rule 43 of said Rule. He
averred that the Justice Secretary is
not a quasi-judicial officer under Rule
43 whose resolutions may thus be
reviewed by the CA. AAlcaraz likewise
pointed out that the CA was without
power to substitute its own judgment
for that of the Justice Secretary
regarding the existence or non-
existence of probable cause to charge
him with attempted homicide.
On March 22, 2004, the CA rendered
judgment granting the petition and
reversing the assailed resolutions of
the Secretary of Justice.
The CA ruled that the petition for
review under Rule 43 of the Rules of
Court, as amended, was meritorious.
The appellate court declared that,
based on the evidence on record, there
was probable cause to file an
Information for attempted homicide
against Alcaraz. However, the CA
failed to resolve the issue of whether
it had appellate jurisdiction over the
petition under Rule 43 of the Rules of
Court, as amended.
Alcaraz filed a motion for the
reconsideration. On July 19, 2004, the
CA resolved to deny Alcaraz's motion,
holding that his grounds and
objections
had
already
been
considered and passed upon by it in
its decision.
Alcaraz, now petitioner, filed the
instant
petition
for
review
on certiorari.
Issue: Whether or not the petition for
review under Rule 43 of the Rules of

Court was the proper remedy of

respondent.
Held: NO.
The petition is meritorious.
The court agree with petitioner's
contention that respondent resorted
to an improper remedy when he filed
a petition for review under Rule 43 of
the Rules of Court, instead of filing a
petition for certiorari under Rule 65.
It bears stressing that in the
determination of probable cause
during the preliminary investigation,
the executive branch of government
has full discretionary authority. Thus,
the decision whether or not to dismiss
the criminal complaint against the
private respondent is necessarily
dependent on the sound discretion of
the Investigating Prosecutor and
ultimately, that of the Secretary of
Justice. Courts are not empowered to
substitute their own judgment for that
of the executive branch.
The resolution of the Investigating
Prosecutor is subject to appeal to the
Justice Secretary who, under the
Revised
Administrative
Code,
exercises the power of control and
supervision over said Investigating
Prosecutor; and who may affirm,
nullify, reverse, or modify the ruling of
such prosecutor. Thus, while the CA
may review the resolution of the
Justice Secretary, it may do so only in
a petition for certiorari under Rule 65
of the Rules of Court, solely on the
ground that the Secretary of Justice
committed grave abuse of his
discretion amounting to excess or lack
of jurisdiction.

It bears stressing that the Resolution

of the Justice Secretary affirming,
modifying or reversing the resolution
of the Investigating Prosecutor is final.
Under the 1993 Revised Rules on
Appeals (now the 2000 National
Prosecution Service Rules on
Appeals), resolutions in preliminary
investigations or reinvestigations
from the Justice Secretary's resolution,
except the aggrieved party, has no
more remedy of appeal to file a
motion for reconsideration of the said
resolution of such motion if it is
denied by the said Secretary. The
remedy of the aggrieved party is to file
a petition for certiorari under Rule 65
of the Rules of Court since there is no
more appeal or other remedy
available in the ordinary course of
law.
In the present case, respondent filed a
petition for review under Rule 43 of
the Rules of Court, assailing the
resolutions of the Justice Secretary.
Instead of dismissing the petition,
however, the CA gave due course to it
and thereafter granted the petition, on
its finding that the Justice Secretary
erred in reversing the resolution of
the Investigating Prosecutor which
found probable cause against
petitioner for attempted homicide.
Patently, the ruling of the CA is
incorrect.
IN VIEW OF ALL THE FOREGOING,
the petition is GRANTED. The assailed
Decision and Resolution of the Court
of Appeals in CA-G.R. SP No. 75589
are NULLIFIED.

(026) LLAVE vs. PEOPLE

FACTS:

In 2002, petitioner Niel Llave (then
only 12 years old) was charged with
rape in the RTC of Pasay City. That on
or about September 24, 2002 accused
Niel Llave, a minor, over 9 years of age
and under 15 but acting with
discernment by means of force, threat
and intimidation, did then and there
willfully, unlawfully, feloniously have
carnal knowledge of the complainant,
Debbielyn Quitales, a minor, 7 years of
age, against her will and consent. The
court convicted Neil of rape, which the
CA affirmed.

ISSUE:

WON the petitioner was deprived of
his right to preliminary investigation.

HELD:

NO, the record shows that petitioner
was lawfully arrested without a
warrant. Section 7, Rule 112 of the
Revised
Rules
of
Criminal
Procedures provides: "When accused
lawfully arrested without warrant.
When a person is lawfully arrested
without a warrant involving an
offense which requires a preliminary
investigation, the complaint or
information may be filed by a
prosecutor without need of such
investigation provided an inquest has
been conducted in accordance with
existing rules. In the absence or
unavailability
of
an
inquest
prosecutor, the complaint may be filed
by the offended party or a peace
officer directly with the proper court
on the basis of the affidavit of the

offended party or arresting officer or

person.
Before the complaint or information
is filed, the person arrested may ask
for a preliminary investigation in
accordance with this Rule, but he must
sign a waiver of the provisions of
Article 125 of the Revised Penal Code,
as amended, in the presence of his
counsel. Notwithstanding the waiver,
he may apply for bail and the
investigation must be terminated
within fifteen (15) days from its
inception.
After the filing of the complaint or
information in court without a
preliminary investigation, the accused
may, within five (5) days from the
time he learns of its filing, ask for a
preliminary investigation with the
same right to adduce evidence in his
defense as provided for in this Rule.
As gleaned from the Certification of
the City Prosecutor which was
incorporated in the Information,
petitioner did not execute any waiver
of the provisions of Article 125 of the
Revised Penal Code (Delay in the
delivery of detained persons to the
proper judicial authorities) before the
Information was filed. He was
arraigned with the assistance of
counsel on October 10, 2002, and
thereafter filed a petition for bail.
Petitioner's failure to file a motion for
a preliminary investigation within five
days from finding out that an
Information had been filed against
him effectively operates as a waiver of
his right to such preliminary
investigation.

NOTE: On the case for the accused,
petitioner said that when he was
outside to buy rice in the carinderia he
saw the complainant on his way back,

and also met his father, who asked

him what he had done to their
neighbor that the latter was angry and
wanted to kill him. So, his mother
prodded him to go to his aunt's house
and while in their, Domingo and Brgy
Tanod. Dominguez arrived and
brought him to the brgy hall. He didn't
know any reason why Debbielyn and
her parents would charge him with
rape.
(027) DE CASTRO vs. FERNANDEZ
FACTS:
On June 11, 2002, Tanods invited De
Castro to the barangay hall due to a
complaint for sexual assault filed by
AAA, on behalf of her daughter BBB.
He accepted the invitation without any
resistance, the next day, he was turned
over to Las Pinas Police Station,
thereafter the police indorsed the
complaint to the city prosecutor for
inquest proceedings. State Prosecutor
Napoleon
Monsod
issued
a
commitment order for his detention
and filed an information for Rape.

De Castro filed a Motion for
Reinvestigation praying that the trial
court issue an order directing the
Office of Prosecutor to conduct
preliminary
investigation
in
accordance with Rule 112 and that the
charge against him be amended to
Acts
of
Lasciviousness
since
fingering is not covered under Art.
266-A (2) of RA 8353, which the trial
court denied, hence this petition.

ISSUE:
WON accused is entitled of
preliminary investigation

HELD:

SC: DENIED. Under Rule 65, a special
civil action for certiorari lies where a
court has acted without or in excess of
jurisdiction or with grave abuse of
discretion and there is no appeal, nor
any plain, speedy and adequate
remedy in the ordinary course of law.
De Castro failed to allege any
circumstance which would show that
in issuing the assailed orders, the trial
court acted without or in excess of
jurisdiction or with grave abuse of
discretion. Following hierarchy of
courts, it should be filed with the CA,
Under rule 45, if the petition is to be
treated as petition for review, it would
fail because only judgment or final
orders that completely dispose of the
case can be the subject of a petition for
review. Here, the assailed orders are
only interlocutory order. De Castro
should have proceeded with the trial
of the case and if the trial court
renders an unfavorable verdict, he
should assail the orders as art of an
appeal that may eventually be taken
from the final judgment to be
rendered in this case.