Rule 112 Section 3 – Procedure
warrantless arrest may be effected, thus:
LADLAD v. SENIOR STATE PROSECUTOR VELASCO
FACTS:
This case is a consolidation of 2 petitions. Some petitioners are
members of the House of Representatives representing various party-
list groups while some are private individuals. All face charges for
Rebellion in two criminal cases pending with the RTC Makati during
the time of Pres. Gloria Macapagal-Arroyo.
The Beltran Petition (members of the House of Representatives)
Beltran was arrested without a warrant and the arresting officers did
not inform Beltran of the crime for which he was arrested. He was
subjected to an inquest at the Quezon City Hall of Justice for Inciting
to Sedition based on a speech Beltran allegedly gave during a rally on
the occasion of the 20th anniversary of the EDSA Revolution. The
inquest prosecutor indicted Beltran and filed the corresponding
Information with the MeTC of Quezon City.
He was subjected to a second inquest this time for Rebellion
conducted by a panel of State prosecutors from the DOJ. The panel
issued a Resolution finding probable cause and then filed an
Information with the RTC Makati. Beltran moved for a judicial
determination of probable cause against him. Judge Alameda, to whom
the case was re-raffled, issued an Order denying Beltran’s motion.
Hence, the petition to set aside the Orders and to enjoin Beltran’s
prosecution. In his Comment to the petition, the Solicitor General
claims that Beltran’s inquest for Rebellion was valid and that the RTC
Makati correctly found probable cause to try Beltran for such felony.
The Maza and Ladlad Petitions (private individuals)
The DOJ sent subpoenas to petitioners requiring them to appear at the
DOJ Office to get copies of the complaint and its attachment. During
the preliminary investigation, the counsel for the Criminal
Investigation and Detection Group (CIDG) presented a masked man,
later identified as Fuentes. Fuentes subscribed to his affidavit before
respondent prosecutor Velasco who then gave copies of the affidavit
to media members present during the proceedings. Petitioners were
furnished the complete copies of documents supporting the CIDGs
letters only after 4 days from the preliminary investigation. Petitioners
moved for the inhibition of the members of the prosecution panel for
lack of impartiality and independence. The DOJ panel of prosecutors
denied petitioners motion as well as his motion for reconsideration.
Petitioners now seek the nullification of these DOJ Orders.
The panel of prosecutors issued a Resolution finding probable cause
and filed an Information with RTC Makati charging petitioners
and their co-accused as principals, masterminds, or heads of a
Rebellion. In his separate Comment to the Maza petition, the Solicitor
General submits that the preliminary investigation of petitioners was
not tainted with irregularities. The Solicitor General also claims that
the filing of Criminal Case has mooted the Maza petition (nullification
of these DOJ Orders).
ISSUES:
1. Beltran Petition:
(a) Whether or not the inquest proceeding against Beltran for Rebellion
was valid. -NO
(b) Whether or not there is probable cause to indict Beltran for
Rebellion. -NO
2. Maza and Ladlad Petition:
Whether or not respondent prosecutors should be enjoined from
continuing with the prosecution of Criminal Case against Maza and
Ladlad. - YES
RULING:
On the Beltran Petition
A. The Inquest Proceeding against Beltran for Rebellion is invalid.
Inquest proceedings are proper only when the accused has been
lawfully arrested without warrant. Section 5, Rule 113 of the Revised
Rules of Criminal Procedure provides the instances when such
Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
xxxx
In cases falling under paragraphs (a) and (b) above, the
person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.
The joint affidavit of Beltran’s arresting officers states that the officers
arrested Beltran, without a warrant, for Inciting to Sedition, and not for
Rebellion. Thus, the inquest prosecutor could only have conducted as
he did conduct an inquest for Inciting to Sedition and no other.
Consequently, when another group of prosecutors subjected Beltran to
a second inquest proceeding for Rebellion, they overstepped their
authority rendering the second inquest void.
None of Beltran’s arresting officers have personal knowledge of facts
and circumstances that Beltran had just committed Rebellion,
sufficient to form probable cause to believe that he had committed
Rebellion. What these arresting officers alleged in their affidavit is that
they saw and heard Beltran make an allegedly seditious speech. For
the failure of Beltran’s panel of inquest prosecutors to comply with
Section 7, Rule 112 in relation to Section 5, Rule 113, Beltran’s inquest
is void.
B. There is No Probable Cause to Indict Beltran for Rebellion.
Probable cause is 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.
To accord respect to the discretion granted to the prosecutor and for
reasons of practicality, as a rule, the Supreme Court does not interfere
with the prosecutor’s determination of probable cause; except where
the prosecutor abused his discretion by ignoring a clear insufficiency
of evidence to support a finding of probable cause, thus denying the
accused his right to substantive and procedural due process.
This exception holds true here. The evidence before the panel of
prosecutors who conducted the inquest of Beltran for Rebellion
consisted of the affidavits and other documents which are insufficient
to show probable cause to indict him for Rebellion. Except for two
affidavits, none of the affidavits mentions Beltran. None of the
affidavits stated that Beltran committed specific acts of promoting,
maintaining, or heading a rebellion.
The Solicitor General points to Fuentes affidavit, as basis for the
finding of probable cause against Beltran. This claim is, however,
untenable. Fuentes affidavit was not part of the attachments supporting
the CIDG’s letters. Thus, the panel of inquest prosecutors did not have
Fuentes affidavit in their possession when they conducted the
Rebellion inquest against Beltran on that day. The CIDG first
presented it only during the preliminary investigation of the other
petitioners during which Fuentes subscribed to his statement before
respondent prosecutor Velasco. Assuming them to be true, what the
allegations in Fuentes affidavit make out is a case for Conspiracy to
Commit Rebellion not Rebellion. Thus, the RTC Makati erred when it
found probable cause to try Beltran for Rebellion based on the
evidence before it.
On the Ladlad and Maza Petitions
The Preliminary Investigation was Tainted With Irregularities.
Respondent prosecutors should be enjoined from continuing with the
prosecution of Criminal Case against Maza and Ladlad.
As in the determination of probable cause, the Supreme Court is
unwilling to enjoin the prosecution of offenses, a practice rooted on
public interest as the speedy closure of criminal investigations fosters
public safety. However, such relief in equity may be granted if the
same is necessary (a) to prevent the use of the strong arm of the law in
an oppressive and vindictive manner or (b) to afford adequate
protection to constitutional rights.
The instant case falls under these exceptions. Instead of following this
procedure scrupulously, the respondent prosecutors disregarded it.
Respondent prosecutors failed to comply with Section 3(a) of Rule 112
which provides that the complaint (which, with its attachment, must be
of such number as there are respondents) be accompanied by the
affidavits of the complainant and his witnesses, subscribed and sworn
to before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a notary
public. Respondent prosecutors treated the unsubscribed letters of the
CIDG, PNP as complaints and accepted the affidavits attached to the
letters even though some of them were notarized by a notary public
without any showing that a prosecutor or qualified government official
was unavailable as required by Section 3(a) of Rule 112.
Further, Section 3(b) of Rule 112 mandates that the prosecutor, after
receiving the complaint, must determine if there are grounds to
continue with the investigation. If there is none, he shall dismiss the
case, otherwise he shall issue a subpoena to the respondents. Here, by
peremptorily issuing the subpoenas to petitioners, tolerating the
complainants antics during the investigation, and distributing copies of
a witness affidavit to members of the media knowing that petitioners
have not had the opportunity to examine the charges against them,
respondent prosecutors not only trivialized the investigation but also
lent credence to petitioners claim that the entire proceeding was a
sham. Moreover, contrary to the submission of the Solicitor General,
respondent prosecutors filing of the Information against petitioners
with the RTC Makati does not moot the petitions. The SC’s power to
enjoin prosecutions cannot be frustrated by the simple filing of the
Information with the trial court.
OCAMPO vs. ABANDO
FACTS:
A mass grave was discovered at Inopacan, Leyte which contained
skeletal remains of individuals believed to be victims of "Operation
Venereal Disease" (Operation VD) launched by members of the
Communist Party of the Philippines/New People’s Army/National
Democratic Front of the Philippines (CPP/NPA/NDFP) to purge their
ranks of suspected military informers. Affidavits of Zacarias Piedad
and others were filed narrating that they were former members of the
CPP/NPA/NDFP. Allegedly, petitioners Ocampo, Echanis, Baylosis
and Ladlad were then members of the Central Committee of the
Communist Party.
Prosecutor Vivero issued a subpoena requiring petitioners to submit
their counter-affidavits and those of their witnesses.
- Ocampo submitted his counter-affidavit.
- Echanis and Baylosis did not file counter-affidavits because
they were allegedly not served the copy of the complaint and
the attached documents or evidence.
- Counsel of petitioner Ladlad made a formal entry of
appearance during the preliminary investigation. However,
petitioner Ladlad did not file a counter-affidavit because he
was allegedly not served a subpoena.
An Information for 15 counts of multiple murder was filed before
the Regional Trial Court (RTC) Hilongos, Leyte presided by Judge
Abando. Judge Abando ordered the issuance of warrants of arrest
against them with no recommended bail.
Here, petitioners allege that were denied due process during
preliminary investigation and in the issuance of the warrants of arrest.
- Echanis and Baylosis allege that they did not receive a copy
of the complaint and the attached documents or evidence.
- Ladlad claims that he was not served a subpoena due to the
false address indicated in the affidavit or even through his
counsels’ addresses.
- Ocampo argues that he was denied the opportunity to reply
to the Supplemental Affidavit by not being furnished a copy
and that Judge Abando did not comply with the requirements
of the Constitution in finding the existence of probable cause
for the issuance of warrants of arrest against petitioners did
not point out facts and evidence in the record that were used
as bases for his finding of probable cause to issue a warrant
of arrest..
ISSUE:
1. Whether or not petitioners were accorded due process during
preliminary investigation and in the issuance of the warrants of arrest.
- YES
RULING:
Petitioners were accorded due process during preliminary
investigation and in the issuance of the warrants of arrest.
A. Preliminary Investigation
In the context of a preliminary investigation, the essence of due process
is reasonable opportunity to be heard and submit evidence in support
of one's defense." What is proscribed is lack of opportunity to be heard.
Thus, one who has been afforded a chance to present one’s own side
of the story cannot claim denial of due process.
Moreover, it should be noted that Section 3(d), Rule 112 of the Rules
of Court, allows Prosecutor to resolve the complaint based on the
evidence before him if a respondent could not be subpoenaed. As long
as efforts to reach a respondent were made, and he was given an
opportunity to present countervailing evidence, the preliminary
investigation remains valid.
In this case, efforts were undertaken to serve subpoenas on the named
respondents at their last known addresses. This is sufficient for due
process. It was only because a majority of them could no longer be
found at their last known addresses that they were not served copies of
the complaint and the attached documents or evidence. (for Echanis
and Baylosis’s arguments)
As to Ladlad’s claim, his counsel filed a formal entry of appearance,
hence, Prosecutor Vivero had a reason to believe that petitioner Ladlad
had received the subpoena and accordingly instructed his counsel to
prepare his defense. Also, he had every opportunity to secure copies of
the complaint after his counsel’s formal entry of appearance and to
participate fully in the preliminary investigation. Having opted to
remain passive during the preliminary investigation, Ladlad and his
counsel cannot now claim a denial of due process, since their failure to
file a counter-affidavit was of their own doing.
Neither is there any merit in petitioner Ocampo’s allegation of
collusion to surreptitiously insert the Supplemental Affidavit of
Zacarias Piedad in the records. It was clear that it was executed after
petitioner Ocampo had submitted his counter-affidavit. Should the
case go to trial, such will provide Ocampo with the opportunity to
question the execution of Zacarias Piedad’s Supplemental Affidavit.
Also, for him to claim that he was denied due process by not being
furnished a copy of the Supplemental Affidavit of Zacarias Piedad
would imply that the entire case of the prosecution rested on the
Supplemental Affidavit. The OSG has asserted that the indictment of
petitioner Ocampo was based on the collective affidavits of several
other witnesses.
B. Issuance of the Warrants of Arrest
Probable cause for the issuance of a warrant of arrest has been defined
as "such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed
by the person sought to be arrested."
Although the Constitution provides that probable cause shall be
determined by the judge after an examination under oath or an
affirmation of the complainant and the witnesses, we have ruled that a
hearing is not necessary for such determination thereof. It is enough
that the judge personally evaluates the prosecutor’s report and
supporting documents showing the existence of probable cause for the
indictment and, on the basis thereof, issue a warrant of arrest; or if, on
the basis of his evaluation, he finds no probable cause, to disregard the
prosecutor's resolution and require the submission of additional
affidavits of witnesses to aid him in determining its existence.
The determination of probable cause for the issuance of warrants of
arrest against petitioners is addressed to the sound discretion of Judge
Abando as the trial judge.
As the court stated in Court stated in Sarigumba v. Sandiganbayan,
. . . . The trial court's exercise of its judicial discretion should
not, as a general rule, be interfered with in the absence of
grave abuse of discretion. Indeed, certiorari will not lie to
cure errors in the trial court's appreciation of the evidence of
the parties, the conclusion of facts it reached based on the
said findings, as well as the conclusions of law. . . . .
Whether or not there is probable cause for the issuance of
warrants for the arrest of the accused is a question of fact
based on the allegations in the Informations, the Resolution
of the Investigating Prosecutor, including other documents
and/or evidence appended to the Information.
As stated above, the trial judge's appreciation of the evidence and
conclusion of facts based thereon are not interfered with in the absence
of grave abuse of discretion. Here, the judge sufficiently complied with
the requirement of personal determination after he reviewed the
Information and the documents attached, and on the basis thereof
formed a belief that the accused is probably guilty of the crime with
which he is being charged.
ESTRADA vs. OFFICE OF THE OMBUDSMAN
FACTS:
The Ombudsman served upon Sen. Estrada a copy of the complaint
which prayed that criminal proceedings for Plunder be conducted
against Sen. Estrada. The Ombudsman also served upon Sen. Estrada
a copy of the complaint which prayed that criminal proceedings for
Plunder and for violation of Section 3(e) of RA No. 3019, be
conducted against Sen. Estrada.
18 of Sen. Estrada’s co-respondents in the two complaints filed their
counter-affidavits. Sen. Estrada then filed his Request to be Furnished
with Copies of Counter-Affidavits of the Other Respondents,
Affidavits of New Witnesses and Other Filings (Request) pursuant to
the right of a respondent ‘to examine the evidence submitted by the
complainant which he may not have been furnished’ and to ‘have
access to the evidence on record’.
The Ombudsman issued an order finding that Sen. Estrada is not
entitled to be furnished all the filings of the respondents and that the
respondents are only required to furnish their counter-affidavits and
controverting evidence to the complainant, and not to the other
respondents.
ISSUE:
Whether the denial of Estrada’s Request to be furnished copies of
counter-affidavits of his co-respondents violated Sen. Estrada’s
constitutional right to due process. - NO
RULING:
The Ombudsman’s denial of Sen. Estrada’s Request did not violate
Sen. Estrada’s constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish
a respondent with copies of the counter-affidavits of his co-
respondents.
It should be underscored that the conduct of a preliminary investigation
is only for the determination of probable cause, and "probable cause
merely implies probability of guilt and should be determined in a
summary manner. A preliminary investigation is not a part of the trial
and it is only in a trial where an accused can demand the full exercise
of his rights, such as the right to confront and cross-examine his
accusers to establish his innocence."
Thus, the rights of a respondent in a preliminary investigation are
limited to those granted by procedural law. A preliminary investigation
is not the occasion for the full and exhaustive display of the parties’
evidence; it is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof.
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, which require
the investigating officer to furnish the respondent with copies of the
affidavits of the complainant and affidavits of his supporting
witnesses.
However, 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.
Likewise devoid of cogency is petitioner’s argument that the
testimonies of Galarion and Hanopol are inadmissible as to him since
he was not granted the opportunity of cross-examination.
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the witnesses which the
complainant may present.
Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where
the fiscal sets a hearing to propound clarificatory questions to the
parties or their witnesses, to be afforded an opportunity to be present
but without the right to examine or cross examine.
Moreover, the Supreme 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, a person under preliminary investigation, as Sen. Estrada is
in the present case when he filed his Request, is not yet an accused
person, and hence cannot demand the full exercise of the rights of an
accused person.
ATTY. PADERANGA vs. HON. DRILON
FACTS:
An information for multiple murder was filed in the RTC, Gingoog
City, against Felipe Galarion and others for the deaths of Bucag, his
wife and their son. Only Galarion was tried and found guilty. The rest
of the accused remained at large. Galarion, however, escaped from
detention and has not been apprehended since then. In an amended
information, Felizardo Roxas was included as a co-accused. Roxas
retained Paderanga as his counsel.
As counsel, Paderanga filed an Omnibus Motion to dismiss, to Quash
the Warrant of Arrest and to Nullify the Arraignment. The trial court
denied this omnibus motion but directed the City Prosecutor "to
conduct another preliminary investigation or reinvestigation to grant
the accused all the opportunity to adduce whatever evidence he has in
support of his defense." During the preliminary investigation,
through a signed affidavit, Roxas implicated Paderanga in the
commission of the crime charged. State Prosecutor Gingoyon
directed the amendment of the previously amended information to
include Paderanga as one of the accused.
Petitioner filed a Petition for Review with the Department of Justice.
Thereafter, he submitted a Supplemental Petition with Memorandum,
and then a Supplemental Memorandum with Additional
Exculpatory/Exonerating Evidence Annexed, attaching an affidavit of
Roxas purporting to be a retraction of his previous affidavit where he
implicated Paderanga.
The Department of Justice dismissed the said petition for review and
his motion for reconsideration. Petitioner then filed the petition for
mandamus and prohibition.
Petitioner raises two basic issues, namely:
(1) that he was deprived of a full preliminary investigation by reason
of the fact that at the time the resolution was issued, there were still
several incidents pending resolution (such as the validity of the
testimonies and affidavits of Roxas and Hanopol as bases for
preliminary investigation, the polygraph test of Roxas, and the
clarificatory questions which were supposed to be propounded by
petitioner's counsel to Roxas and Hanopol). Petitioner likewise claims
that he was deprived of the opportunity to file his counter-affidavit to
the subpoena.
(2) that there is no prima facie evidence, or probable cause to hold him
to a public trial, on the basis of the following grounds: decision of the
Regional Trial Court against Galarion suffers from constitutional and
procedural infirmities considering that petitioner was not a party
thereto nor was he given opportunity to comment on or rebut the
prosecution evidence; reliance on Hanopol's testimony is likewise
"contemptible," it being merely hearsay and that petitioner was never
given the opportunity to cross-examine Hanopol at the time he testified
in court; and the affidavit of Roxas which is the only evidence against
petitioner, has been rendered nugatory by his affidavit of retraction.
ISSUES:
1. Whether or not the preliminary investigation as to him was
complete. - YES
2. Whether or not there exists prima facie evidence or probable cause
to justify his inclusion in the second amended information. - YES
RULING:
1. The preliminary investigation as to him was complete.
Firstly, petitioner had already filed his counter-affidavit, pursuant to
the subpoena issued to him wherein he controverted the charge against
him and dismissed it as a malicious design of his political opponents
and enemies to link him to the crime. This is sufficient compliance
with the procedural requirement of the Rules of Court, specifically
Section 3(b) of Rule 112. Besides, he failed to show that the subpoena
issued involved a separate complaint charging an offense different and
distinct from that charged in the complaint attached to the first
subpoena issued to him earlier.
Secondly, the credibility of the witnesses and their testimonies are
matters of defense best addressed to the trial court for its appreciation
and evaluation.
Thirdly, the right of petitioner to ask clarificatory questions is not
absolute. The fiscal has the discretion to determine whether or not he
will propound these questions to the parties or witnesses concerned.
As clearly provided for under Section 3(e), Rule 112 of the Rules of
Court.:
(e) If the investigating officer believes that there are matters
to be clarified, he may set a hearing to propound clarificatory
questions to the parties or their witnesses, during which the
parties shall be afforded an opportunity to be present but
without the right to examine or cross-examine. If the parties
so desire, they may submit questions to the investigating
officer which the latter may propound to the parties or
witnesses concerned.
Lastly, it has been held that "the proper forum before which absence
of preliminary investigation should be ventilated is the Court of First
Instance, not this Court. Reason is not wanting for this view. Absence
of a preliminary investigation does not go to the jurisdiction of the
court but merely to the regularity of the proceedings. It could even be
waived. Indeed, it is frequently waived. These are matters to be
inquired into by the trial court, not an appellate court."
2. Yes, there exists prima facie evidence or probable cause to justify
his inclusion in the second amended information.
A preliminary investigation is defined as an inquiry or proceeding for
the purpose of determining whether there is sufficient ground to
engender a well-founded belief that a crime cognizable by the Regional
Trial Court has been committed and that the respondent is probably
guilty thereof, and should be held for trial.
In the case at bar, there exists prima facie evidence of petitioner's
involvement in the commission of the crime, it being sufficiently
supported by the evidence presented and the facts obtained.
There is also no merit to the petitioner's argument that the testimonies
of Galarion and Hanopol are inadmissible as to him since he was not
granted the opportunity of cross-examination.
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the witnesses which the
complainant may present.
Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where
the fiscal sets a hearing to propound clarificatory questions to the
parties or their witnesses, to be afforded an opportunity to be present
but without the right to examine or cross-examine.
Thus, even if petitioner was not given the opportunity to cross-examine
Galarion and Hanopol at the time they were presented to testify, he
cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him.
The admissibility or inadmissibility of said testimonies should be
ventilated before the trial court during the trial proper and not in the
preliminary investigation. If the prosecution does present such
testimonies, Paderanga can always object and the trial court can rule
on their admissibility; or Paderanga can, during the trial, petition said
court to compel the presentation of Galarion and Hanopol for purposes
of cross-examination.
ALVIZO vs. THE SANDIGANBAYAN
FACTS:
Congressman Estrella of the 2nd District of Surigao del Sur called
the attention of then Secretary of Justice Ordoñez to the apparent
inability of the Provincial Fiscal of Surigao del Sur to prosecute
petitioner Alvizo, who was then a member of the Surigao del Sur
Sangguniang Panlalawigan.
It appears that petitioner had been dismissed as Clerk of Court of the
Court of First Instance of Surigao del Sur when he was found to have
incurred a deficiency in his accounts pursuant to a decision of the
Supreme Court. Petitioner's dismissal was without prejudice to his
criminal prosecution.
Then Chief State Prosecutor de Leon, on behalf of Justice Secretary
Ordoñez, referred the matter to the Provincial Fiscal for appropriate
action. Consequently, a preliminary investigation was conducted by
Second Assistant Provincial Prosecutor Suarez. An information was
filed with Sandiganbayan which charges Alvizo with malversation
of public funds.
Alvizo filed a motion to quash the information allegedly for failure
to include a certification by the investigating fiscal that he conducted
a personal examination of the complainant and his witnesses during
the preliminary investigation.
Then, Alvizo filed a supplemental motion to quash contending that
the filing of the information in this case is violative of his
constitutional rights to due process and the speedy disposition of
the case against him. It was only twelve years after the initial
preliminary investigation was conducted, that an information was filed
against him with the Sandiganbayan.
Sandiganbayan denied the motion and supplemental motion to quash.
Petitioner's motion for reconsideration was likewise denied.
ISSUE:
Whether or not the information is valid even though it does not contain
a certification by the investigating prosecutor that the latter personally
examined the complainant and his witnesses. - YES

RULING:
The information is valid.
Certification by the investigating prosecutor that he personally
examined the complainant and his witnesses is not an essential part of
the information. Its absence is merely a formal defect.
Contrary to petitioner's submission, Sandiganbayan made a finding
that the investigating officer who conducted the preliminary
investigation personally examined the witness for the prosecution. The
records of the Office of the Ombudsman disclose that Nereo A. Sales,
COA Auditor, who examined the cash and accountabilities of the
accused, was personally examined by Second Assistant Provincial
Prosecutor Vicente L. Suarez, by taking down his statement which the
witness subscribed and swor(e) to before said assistant prosecutor and
who certified as follows: 'THIS IS TO CERTIFY that I have personally
examined the affiant and that I am satisfied that he voluntarily executed
and understood his affidavit.'
The fact that it was not stated in the Information itself is merely a
formal defect which does not prejudice the substantial rights of the
accused and, hence, does not warrant the quashal of the information.
The certification appearing in the information filed in Criminal Case
of the Sandiganbayan reads as follows: "THIS IS TO CERTIFY that a
preliminary investigation has been conducted in this case; that there is
reasonable ground to engender a well-founded belief that the crime
charged has been committed; and that the accused is probably guilty
thereof."
Definitely settled is the rule that notwithstanding the absence in the
information of a certification as to the holding of a preliminary
investigation, the information is nonetheless considered valid for the
reason that such certification is not an essential part of the information
itself and its absence cannot vitiate it as such.
Accordingly, as held in People vs. Marquez, "What is not allowed is
the filing of the information without a preliminary investigation having
been previously conducted, and the injunction that there should be a
certification is only a consequence of the requirement that a
preliminary investigation should first be conducted."
In the case at bar, there is a certification to the effect that a preliminary
investigation had been conducted. The alleged violation referred to by
petitioner merely consists of a failure to state that the investigating
prosecutor has personally examined the complainant and his witnesses.