G.R. No. 83754 February 18, 1991 TEODORO B. CRUZ, JR., petitioner, vs.

COURT OF APPEALS, Fifteenth Division, respondents. Cruz, Enverga & Del Mundo for petitioner. CRUZ, J.:p The petition must fail. Petitioner Teodoro D. Cruz, Jr. raises procedural issues in this petition to review the decision of the respondent Court of Appeals in C.A.-G.R. SP No. 11771 dated April 29, 1988, and its resolution of June 6, 1988, denying his motion for reconsideration. The petitioner was charged before the Regional Trial Court of Makati, along with several others, in four separate informations for estafa thru falsification of public documents. It was alleged that the petitioner, together with Melania Guerrero, who produced a special power of attorney claimed establish have been executed by the late Clemente Guerrero, had conspired with their co-accused in selling some properties of the decedent to the widow's sister, Luz Andico, through fictitious deeds of sale notarized by the petitioner sometime in November and December of 1980. Upon arraignment on June 1, 1984, the petitioner and his co-accused entered a plea of not guilty. Subsequently, the petitioner filed a motion to dismiss on the ground that the four informations "(did) not charge an offense." At the hearing on this motion, the petitioner submitted testimonial and documentary evidence which was not refuted by the prosecution. For its part, the prosecution submitted no evidence at an but later moved to deny the motion. The motion to dismiss-to was eventually denied by the trial court, 1 as so was the subsequent motion for reconsideration. 2The petitioner questioned the denial of the motions before this Court, which referred the case to the Court of Appeals. On April 29, 1988, the respondent courts 3 dismissed the petition, holding inter alia as follows: Petitioner unabashedly admits that the motion to dismiss in the instant criminal cases was filed after the arraignment so that the cases could not be refiled again considering the principle of double jeopardy. But this precisely begs the issue. The respondent Court, then presided over by Judge Madayag, cited as ground of the denial of the motion to dismiss to avoid technicalities that may arise later. This is interrelated to the first ground in the denial interest of substantial justice that the prosecution could adduce evidence during the trial . Thus, to hold otherwise is to sanction a shrewd maneuver by petitioner wherein he files a motion to quasi/dismiss after arraignment, presents his evidence supporting his ground therefor, and without the State being able to present its evidence in chief. Under the circumstances, what is needed is a full-blown hearing. xxx xxx xxx Moreover, assuming that the procedure pursued by the petitioner in outright presenting his evidence in support of his motion to dismiss, although the prosecution has not as yet presented its evidence in chief is sanctioned by the Rules, still the respondent Court, under the circumstances, did not abuse its discretion in denying the motion to dismiss and subsequently, the motion for reconsideration. Respondent Court must have been not convinced of the evidence presented, hence, its judicial prerogative to deny the dismissal of the charges. What is essential and important is for the petitioner to show by his own evidence that the documents, subject of the charges, were prepared and notarized by him clearly prior to the death of Clemente Guerrero on June 24, 1980 and not simply prior to the months of November and December, 1980 when the offense was committed, as alleged in the Information because each Information may be amended as regards the date of the commission of the offense without impairing the rights of the petitioner (People v. Gerardo Rivera, et al., 33 SCRA 746). The amendment will only be a matter of form and will not "affect the nature and essence of the crime as only charged." The petitioner is now before us on certiorari and faults the above-quoted decision on the following grounds: (1) The court proceedings on petitioner's motion to dismiss are clearly sanctioned by law and jurisprudence. (2) The prosecution is in estoppel to question said proceedings. (3) The informations do not charge an offense.

(4) There exists a variance between the allegations in the information and the evidence presented in the motion to dismiss. (5) The documents were notarized on their stated dates. (6) Substantial justice demands the dismissal of the informations filed against herein petitioner.

It is axiomatic that a complaint or information must state every single fact necessary to constitute the offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense may be properly sustained. The fundamental test in considering a motion to quash on this ground is whether the facts alleged, if hypothetically admitted, will establish the essential 4 elements of the offense as defined in the law. Contrary to the petitioner's contention, a reading of the informations will disclose that the essential elements of the offense charged are sufficiently alleged. It is not proper therefore to resolve the charges at the very outset, in a preliminary hearing only and without the benefit of a full-blown trial. The issues require a fuller examination. Given the circumstances of this case, we feel it would be unfair to shut off the prosecution at this stage of the proceedings and to dismiss the informations of the basis only of the petitioner's evidence, such as it is. It is clear that the trial judge did not commit grave abuse of discretion when he denied the motion to dismiss on the grounds that "(a) interest of substantial justice that the prosecution could adduce evidence during the trial; and (b) to avoid technicalities that may arise later." 5 On the contrary, his action was authorized under U.S. v. Barredo, 6 where this Court said: Upon a motion of the provincial fiscal to dismiss a complaint upon which an accused person has been remanded for trial by a justice of the peace, it rests in the sound discretion of the judge whether to accede to such motion or not. Ordinarily, of course, he will dismiss the action in accordance with the suggestion of an experienced fiscal who has personally investigated the facts. But if he is not satisfied with the reason assigned by the fiscal, or if it appears to him from the record of the proceedings in the court of the justice of the peace, or as a result of information furnished by the private prosecutor, or otherwise, that the case should not be dismissed, he may deny the motion. Indeed, as pointed out by the Solicitor General, this denial was proper because the petitioner failed to controvert in his motion to dismiss the following substantial circumstances alleged in the affidavit complaint: (1) That the vendee, Luz Andico (sister of the accused Melania Guerrero), has no visible means to purchase said properties; (2) That the capital gains taxes for the alleged sales were paid only in December 1980, when it should have been paid within 30 days from the date of the sale (National Internal Revenue Code); (3) That the Deeds of Sale were presented for registration to the registries concerned only in November and December, 1980; (4) That the antedating of the documents was made possible by the fact that notary public Teodoro B. Cruz, Jr. (herein petitioner) as late as March, 1981 had not submitted his notarial report together with the copies of the documents he notarized for 1980. The petitioner's contention that the questioned transactions were already in existence before the months of November and December 1980, when they were supposedly falsified, is a matter of defense best examined during the trial rather than in the preliminary hearing on his motion to dismiss. The prosecution should be given ample opportunity to prove the allegations in the informations at the appropriate time, and that is the trial itself. The proper time to offer it, following the normal procedure prescribed in Rule 119, Section 3 of the Rules of Court, is after the prosecution shall have presented its pay evidence during the trial. This is in accord ,with People v. Cadabis, 7 where this Court held: Save where the Rules expressly permit the investigation of facts alleged in a motion to quash, the general principle is that in the hearing of such motion only such facts as are alleged in the information, and those admitted by the fiscal, should be taken into account in the resolution thereof. Matters of defense can not be produced during the hearing of such motions, except where the rules expressly permit, such as extinction of criminal liability, prescription and former jeopardy. (Emphasis supplied). But we do not agree with the ruling of the respondent court that the motion to quash should have been filed before the petitioner and his co-accused were arraigned, conformably to Section 1 of Rule 117 of the Rules of Court, which provides:

Sec. 1. Time to move to quash. At any time before entering his plea, the accused may move to quash the complaint or information. It is true that a person who does not move to quash a complaint or information until after he has pleaded is deemed to have waived all objections then available which are grounds of a motion to quash. 8 However, this is subject to exception. By express provision of Sec. 8 of the same rule, failure to assert certain grounds in a motion to quash filed prior to the plea does not operate as a waiver of the right to invoke them later. Even after arraignment, a motion to dismiss the information may be filed if it is based on the ground that: (a) the information charges no offense; (b) the trial court has no jurisdiction; (c) the penalty or the offense has been extinguished; and (d) that double jeopardy has attached. The petitioner contends that the prosecution is now estopped from questioning the motion to dismiss, having participated without objection in the hearing thereof and not having controverted the evidence adduced by the movant at that time. This is untenable. Estoppel does not he against the government because of the supposedly mistaken acts or omissions of its agents. As we declared in People 9 v. Castaeda, "there is the long familiar rule that erroneous application and enforcement of the law by public officers do not block subsequent correct application of the statute and that the government is never estopped by mistake or error on the part of its agents." It remains to observe that an order denying a motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. The petitioner should have proceeded with the trial of the case in the court below, without prejudice to his right, if final judgment is rendered against him, to raise the same question before the proper appellate court. The procedure was well defined in Acharon v. Purisima,
10

THE SANDIGANBAYAN, THE OMBUDSMAN and ROGER C. BERBANO, Special Prosecutor III, respondents. Jose O. Villanueva and Roberto B. Romanillos for petitioners in G.R. No. 85439. Alampay & Manhit Law Offices for petitioners in G.R. No. 91927. DAVIDE, JR., J.: These cases have been consolidated because they are closely linked with each other as to factual antecedents and issues. The first case, G.R. No. 85439 (hereinafter referred to as the Kilusang Bayan case), questions the validity of the order of 28 October 1988 of then Secretary of Agriculture Hon. Carlos G. Dominguez which ordered: (1) the takeover by the Department of Agriculture of the management of the petitioner Kilusang Bayan sa Paglilingkod Ng Mga Magtitinda ng Bagong Pamilihang Bayan ng Muntilupa, Inc. (KBMBPM) pursuant to the Department's regulatory and supervisory powers under Section 8 of P.D. No. 175, as amended, and Section 4 of Executive Order No. 13, (2) the creation of a Management Committee which shall assume the management of KBMBPM upon receipt of the order, (3) the disbandment of the Board of Directors, and (4) the turn over of all assets, properties and records of the KBMBPM the Management Committee. The second case. G.R. No. 91927 (hereinafter referred to as the Bunye case), seeks the nullification of the Resolution of 4 January 1990 of the Sandiganbayan admitting the Amended Information against petitioners in Criminal Case No. 13966 and denying their motion to order or direct preliminary investigation, and its Resolution of 1 February 1990 denying the motion to reconsider the former. The procedural and factual antecedents are not disputed. On 2 September 1985, the Municipal Government of Muntinlupa (hereinafter, Municipality), Metro Manila, thru its then Mayor Santiago Carlos, Jr., entered into a contract with the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA SA BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC. (KBMBPM) represented by its General Manager, Amado Perez, for the latter's management and operation of the new Muntinlupa public market. The contract provides for a twenty-five (25) year term commencing on 2 September 1985, renewable for a like period, unless sooner terminated and/or rescinded by mutual agreement of the parties, at a monthly consideration of Thirty-Five Thousand Pesos (P35,000) to be paid by the KBMBPM within the first five (5) days of each month which shall, however, be increased by ten percent (10%) each year during the first five (5) years only. 1 The KBMBPM is a service cooperative organized by and composed of vendors occupying the New Muntinlupa Public Market in Alabang, Muntinlupa, Metro Manila pursuant to Presidential Decree No. 175 and Letter of Implementation No. 23; its articles of incorporation and by-laws were registered with the then Office of the Bureau of Cooperatives Development (thereafter the Bureau of Agricultural Cooperatives Development or BACOD and now the Cooperative Development Authority). 2 Following his assumption into office as the new mayor succeeding Santiago Carlos, Jr., petitioner Ignacio Bunye, claiming to be particularly scandalized by the "virtual 50-year term of the agreement, contrary to the provision of Section 143, paragraph 3 of Batas Pambansa Blg. 337," and the "patently inequitable rental," directed a review of the aforesaid contract.3 He sought opinions from both the Commission on Audit and the Metro Manila Commission (MMC) on the validity of the instrument. In separate letters, these agencies urged that appropriate legal steps be taken towards its rescission. The letter of Hon. Elfren Cruz of the MMC even granted the Municipality authority "to take the necessary legal steps for the cancellation/recission of the above cited contract and make representations with KBMBPM for the immediate transfer/takeover of the possession, management and operation of the New Muntinlupa Market to the Municipal Government of Muntinlupa." 4 Consequently, upon representations made by Bunye with the Municipal Council, the latter approved on 1 August 1988 Resolution No. 45 abrogating the contract. To implement this resolution, Bunye, together with his co-petitioners and elements of the Capital Command of the Philippine Constabulary, proceeded, on 19 August 1986, to the public market and announced to the general public and the stallholders thereat that the Municipality was taking over the management and operation of the facility, and that the stallholders should henceforth pay their market fees to the Municipality, thru the Market Commission, and no longer to the KBMBPM. 5 On 22 August 1988, the KBMBPM filed with Branch 13 of the Regional Trial Court of Makati a complaint for breach of contract, specific performance and damages with prayer for a writ of preliminary injunction against the Municipality and its officers, which was docketed as Civil Case No. 88-1702. 6 The complaint was premised on the alleged illegal take-over of the public market effected "in excess of his (Bunye's) alleged authority" and thus "constitutes breach of contract and duty as a public official." The writ applied for having been denied, 7 the KBMBPM officers resisted the attempts of Bunye and company to complete the take-over; they continued holding office in the KBS building, under their respective official capacities. The matter having been elevated to this Court by way of certiorari, 8 We remanded the same to the Court of Appeals which docketed it as C.A.-G.R. No. L-16930. 9 On 26 August 1988, Amado Perez filed with the Office of the Ombudsman a letter-complaint charging Bunye and his co-petitioners with oppression, harassment, abuse of authority and violation of the Anti-Graft and Corrupt Practices Act 10 for taking over the management and operation of the public market from KBMBPM. 11

thus:

. . . Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him was denied by the Municipal Court of General Santos his remedy was not to file a petition for certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his motion and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. This is the procedure that he should have followed as authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First Instance which in our opinion is unwarranted it being contrary to the usual course of law. Where it is clear that the information does not really charge an offense, the case against the accused must be dropped immediately instead of subjecting him to the anxiety and inconvenience of a useless trial. The accused is entitled to such consideration. And indeed, even the prosecution will benefit from such a dismissal because it can then file a corrected information provided the accused had not yet pleaded and jeopardy has not yet attached. There is no point in proceeding under a defective information that can never be the basis of a valid conviction. But such is not the situation in the case at bar. As already observed, the challenged informations are not insufficient on their face and neither did the evidence presented at the preliminary hearing justify their dismissal even before the trial had commenced. If "substantial justice" is to be accorded by this Court, as the petitioner insists, then the step it must take is to sustain the denial of the motion to dismiss and allow the criminal cases to follow their normal course. That is what we rule now. WHEREFORE, the petition is DENIED. Criminal Cases Nos. 7332, 7333, 7334 and 7335 are remanded to the Regional Trial Court of Makati, Branch 145, for further proceedings. Costs against the petitioner. SO ORDERED. G.R. No. 85439 January 13, 1992 KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC. (KBMBPM), TERESITA A. FAJARDO, NADYESDA B. PONSONES, MA. FE V. BOMBASE, LOIDA D. LUCES, MARIO S. FRANCISCO, AMADO V. MANUEL and ROLANDO G. GARCIA, incumbent members of the Board, AMADO G. PEREZ and MA. FE V. BOMBASE, incumbent General Manager and Secretary-Treasurer, respectively, petitioners, vs. HON. CARLOS G. DOMINGUEZ, Secretary of Agriculture, Regional Director of Region IV of the Department of Agriculture ROGELIO P. MADRIAGA, RECTO CORONADO and Municipal Mayor IGNACIO R. BUNYE, both in his capacity as Municipal Mayor of Muntinlupa, Metro Manila and as Presiding Officer of Sangguniang Bayan ng Muntinglupa, and JOHN DOES, respondents. G.R. No. 91927 January 13, 1992 IGNACIO R. BUNYE, JAIME R. FRESNEDI, CARLOS G. TENSUAN, VICTOR E. AGUINALDO, ALEJANDRO I. MARTINEZ, EPIFANIO A. ESPELETA, REY E. BULAY, LUCIO B. CONSTANTINO, ROMAN E. NIEFES, NEMESIO O. MOZO, ROGER SMITH, RUFINO B. JOAQUIN, NOLASCO I. DIAZ, RUFINO IBE and NESTOR SANTOS, petitioners, vs.

In a subpoena dated 7 October 1988, prosecutor Mothalib C. Onos of the Office of the Special Prosecutor directed Bunye and his co-petitioners to submit within ten (10) days from receipt thereof counter-affidavits, affidavits of their witnesses 12 and other supporting documents. The subpoena and letter-complaint were received on 12 October 1988. On 20 October 1988, two (2) days before the expiration of the period granted to file said documents, Bunye, et al. filed by mail an urgent motion for extension of 13 "at least fifteen (15) days from October 22, 1988" within which to comply with the subpoena. Thereafter, the following transpired which subsequently gave rise to these petitions: G.R. No. 85439 In the early morning of 29 October 1988, a Saturday, respondent Madriaga and Coronado, allegedly accompanied by Mayor Bunye and the latters' heavily armed men, both in uniform and in civilian clothes, together with other civilians, namely: Romulo Bunye II, Alfredo Bunye, Tomas Osias, Reynaldo Camilon, Benjamin Taguibao, Benjamin Bulos and other unidentified persons, allegedly through force, violence and intimidation, forcibly broke open the doors of the offices of petitioners located at the second floor of the KBS Building, new Muntinlupa Public Market, purportedly to serve upon petitioners the Order of respondent Secretary of Agriculture dated 28 October 1988, and to implement the same, by taking over and assuming the management of KBMBPM, disbanding the then incumbent Board of Directors for that purpose and excluding and prohibiting the General Manager and the other officers from exercising their lawful functions as such. 14 The Order of the Secretary reads as follows: 15 ORDER WHEREAS, the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC., (KBMBPM), Alabang, Muntinlupa, Metro Manila is a Cooperative registered under the provisions of Presidential Decree No. 175, as amended; WHEREAS, the Department of Agriculture is empowered to regulate and supervise cooperatives registered under the provisions of Presidential Decree No. 175, as amended; WHEREAS, the general membership of the KBMBPM has petitioned the Department of Agriculture for assistance in the removal of the members of the Board of Directors who were not elected by the general membership of said cooperative; WHEREAS, the on-going financial and management audit of the Department of Agriculture auditors show (sic) that the management of the KBMBPM is not operating that cooperative in accordance with PD. 175, LOI No. 23, the Circulars issued by DA/BACOD and the provisions of the by-laws of KBMBPM; WHEREAS, the interest of the public so demanding it is evident and urgently necessary that the KBMBPM MUST BE PLACED UNDER MANAGEMENT TAKE-OVER of the Department of Agriculture in order to preserve the financial interest of the members of the cooperative and to enhance the cooperative development program of the government; WHEREAS, it is ordered that the Department of Agriculture in the exercise of its regulatory and supervisory powers under Section 8 of PD 175, as amended, and Section 4 of Executive Order No. 113, take over the management of KBMBPM under the following directives: 1. THAT a Management Committee is hereby created composed of the following: a) Reg. Dir. or OIC RD DA Region IV b) Atty. Rogelio P. Madriaga BACOD c) Mr. Recto Coronado KBMBPM d) Mrs. Nadjasda Ponsones KBMBPM e) One (1) from the Municipal Government of Muntinlupa to be designated by the Sangguniang Pambayan ng Muntinlupa; 2. THAT the Management Committee shall, upon receipt of this Order, assume the management of KBMBPM;

3. THAT the present Board of Directors is hereby disbanded and the officers and Manager of the KBMBPM are hereby directed to turnover all assets, properties and records of the KBMBPM to the Management Committee herein created; 4. THAT the Management Committee is hereby empowered to promulgate rules of procedure to govern its workings as a body; 5. THAT the Management Committee shall submit to the undersigned thru the Director of BACOD monthly reports on the operations of KBMBPM; 6. THAT the Management Committee shall call a General Assembly of all registered members of the KBMBPM within Ninety (90) days from date of this Order to decide such matters affecting the KBMBPM, including the election of a new set of Board of Director (sic). This Order takes effect immediately and shall continue to be in force until the members of the Board of Directors shall have been duly elected and qualified. Done this 28th day of October, 1988 at Quezon City. As claimed by petitioners, the Order served on them was not written on the stationary of the Department, does not bear its seal and is a mere xerox copy. The so-called petition upon which the Order is based appears to be an unverified petition dated 10 October 1988 signed, according to Mayor Bunye, 16 by 371 members of the KBMBPM. On 2 November 1988, petitioners filed the petition in this case alleging, inter alia, that: (a) Respondent Secretary acted without or in excess of jurisdiction in issuing the Order for he arrogated unto himself a judicial function by determining the alleged guilt of petitioners on the strength of a mere unverified petition; the disbandment of the Board of Directors was done without authority of law since under Letter of Implementation No. 23, removal of officers, directors or committee members could be done only by the majority of the members entitled to vote at an annual or special general assembly and only after an opportunity to be heard at said assembly. (b) Respondent Secretary acted in a capricious, whimsical, arbitrary and despotic manner, so patent and gross that it amounted to a grave abuse of discretion. (c) The Order is a clear violation of the By-Laws of KBMBPM and is likewise illegal and unlawful for it allows or tolerates the violation of the penal provisions under paragraph (c), Section 9 of P.D. No. 175. (d) The Order is a clear violation of the constitutional right of the individual petitioners to be heard. 17 They pray that upon the filing of the petition, respondents, their agents, representatives or persons acting on their behalf be ordered to refrain, cease and desist from enforcing and implementing the questioned Order or from excluding the individual petitioners from the exercise of their rights as such officers and, in the event that said acts sought to be restrained were already partially or wholly done, to immediately restore the management and operation of the public market to petitioners, order respondents to vacate the premises and, thereafter, preserve the status quo; and that, finally, the challenged Order be declared null and void. In the Resolution of 9 October 1988, 18 We required the respondents to Comment on the petition. Before any Comment could be filed, petitioners filed on 2 January 1989 an Urgent Ex-Parte Motion praying that respondent Atty. Rogelio Madriaga, who had assumed the position of Chairman of the Management Committee, be ordered to stop and/or cancel the scheduled elections of the officers of the KBMBPM on 6 January 1989 and, henceforth, desist from scheduling any election of officers or Members of the Board of Directors thereof until further orders on the Court. 19 The elections were, nevertheless, held and a new board of directors was elected. So, on 19 January 1989, petitioners filed a supplemental motion 20 praying that respondent Madriaga and the "newly elected Board of Directors be ordered to cease and desist from assuming, performing or exercising powers as such, and/or from removing or replacing the counsels of petitioners as counsels for KBMBPM and for Atty. Fernando Aquino, Jr., to cease and desist from unduly interfering with the affairs and business of the cooperative." Respondent Bunye, by himself, filed his Comment on 23 January 1989. 21 He denies the factual allegations in the petition and claims that petitioners failed to exhaust administrative remedies. A reply thereto was filed by petitioners on 7 February 1989. 22 Respondent Recto Coronado filed two (2) Comments. The first was filed on 6 February 1989 23 by his counsel, Atty. Fernando Aquino, Jr., and the second,

which is for both him and Atty. Madriaga, was filed by the latter on 10 February 24 1989. On 20 February 1989, petitioners filed a Reply to the first Comment of Coronado 25 and an Ex-Parte Motion for the immediate issuance of a cease and 26 desist order praying that the so-called new directors and officers of KBMBPM, namely: Tomas M. Osias, Ildefonso B. Reyes, Paulino Moldez, Fortunato M. Medina, Aurora P. del Rosario, Moises Abrenica, and Lamberto Casalla, be ordered to immediately cease and desist from filing notices of withdrawals or motions to dismiss cases filed by the Cooperative now pending before the courts, administrative offices and the Ombudsman and Tanodbayan, and that if such motions or notices were already filed, to immediately withdraw and desist from further pursuing the same until further orders of this Court. The latter was precipitated by the Resolution No. 19 of the "new" board of directors withdrawing all cases filed by its predecessors against Bunye, et al., and more particularly the following cases: (a) G.R. No. 85439 (the instant petition), (b) Civil Case No. 881702, (c) OSP Case No. 88-2110 before the Ombudsman, (d) IBP Case No. 8827 0119 before the Tanodbayan, and Civil Case No. 88-118 for Mandamus. On 1 March 1989, We required the Solicitor General to file his Comment to the petition and the urgent motion for the immediate issuance of a cease and desist order. 28 A motion to dismiss the instant petition was filed on 30 March 1989. 29 On 19 April 1989, We resolved to dismiss the case and consider it closed and terminated. 30 Thereupon, after some petitioners filed a motion for clarification and reconsideration, We set aside the dismissal order and required the new directors to comment on the Opposition to Motion to Dismiss filed by the former. 31 The new board, on 14 June 1989, prayed that its Manifestation of 6 June 1989 and Opposition dated 9 June 1989, earlier submitted it response to petitioners' motion for reconsideration of the order dismissing the instant petition, be treated as its Comment. 32 Both parties then continued their legal fencing, serving several pleadings on each other. In Our Resolution of 9 August 1989, 33 We gave the petition due course and required the parties to submit their respective Memoranda. On 14 August 1989, petitioners filed an urgent ex-parte motion for the immediate issuance of a cease and desist order 34 in view of the new board's plan to enter into a new management contract; the motion was noted by this Court on 23 August 1989. A second ex-parte motion, noted on 18 October 1989, was filed on 19 September 1989 asking this court to consider the "Invitation to pre-qualify and 35 bid" for a new contract published by respondent Bunye. In a belated Comment 36 for the respondent Secretary of Agriculture filed on 22 September 1989, the Office of the Solicitor General asserts that individual petitioners, who were not allegedly elected by the members or duly designated by the BACOD Director, have no right or authority to file this case; the assailed Order of the Secretary was issued pursuant to P.D. No. 175, more particularly Section 8 thereof which authorizes him "(d) to suspend the operation or cancel the registration of any cooperative after hearing and when in its judgment and based on findings, such cooperative is operating in violation of this Decree, rules and regulations, existing laws as well as the by-laws of the cooperative itself;" the Order is reasonably necessary to correct serious flaws in the cooperative and provide interim measures until election of regular members to the board and officers thereof; the elections conducted on 6 January 1989 are valid; and that the motion to dismiss filed by the new board of directors binds the cooperative. It prays for the dismissal of the petition. Respondent Secretary of Agriculture manifested on 22 September 1989 that he is adopting the Comment submitted by the Office of the Solicitor General as his memorandum; 37 petitioners and respondents Coronado and Madriaga filed their separate Memoranda on 6 November 1989; 38 while the new board of directors submitted its Memorandum on 11 December 1989. 39 The new KBMBPM board submitted additional pleadings on 16 February 1990 which it deemed relevant to the issues involved herein. Reacting, petitioners filed a motion to strike out improper and inadmissible pleadings and annexes and sought to have the pleaders cited for contempt. Although We required respondents to comment, the latter did not comply. Nevertheless, a manifestation was filed by the same board on 25 February 1991 40 informing this Court of the holding, on 9 January 1991, of its annual general assembly and election of its board of directors for 1991. It then reiterates the prayer that the instant petition be considered withdrawn and dismissed. Petitioners filed a counter manifestation alleging that the instant petition was already given due course on 9 August 1989. 41 In its traverse to the counter manifestation, the new board insists that it "did not derive authority from the October 28, 1988 Order, the acts of the Management Committee, nor (sic) from the elections held in (sic) January 6, 1989," but rather from the members of the cooperative who elected them into office during the elections. Petitioners filed a rejoinder asserting that the election of new directors is not a supervening event independent of the main issue in the present petition and that to subscribe to the argument that the issues in the instant petition became moot with their assumption into office is to reward a wrong done. G. R. NO. 91927 Petitioners claim that without ruling on their 20 October 1988 motion for an extension of at last 15 days from 22 October 1988 within which to file their counter-affidavits, which was received by the Office of the Special Prosecutor on 3 November 1988, Special Prosecutor Onos promulgated on 11 November 1988 a Resolution finding the evidence on hand sufficient to establish a prima

facie case against respondents (herein petitioners) and recommending the filing of the corresponding information against them before the 42 Sandiganbayan. Petitioners also claim that they submitted their counter43 affidavits on 9 November 1988. In their motion dated 2 December 1988, petitioners move for a reconsideration of the above Resolution, 44 which was denied by Onos 45 in his 18 January 1989 Order. The information against the petitioners was attached to this order. Upon submission of the records for his approval, the Ombudsman issued a first indorsement on 4 April 1989 referring to "Judge Gualberto J. de la Llana, Acting Director , IEO/RSSO, this Office, the within records of OSP Case No. 88-02110 . 46 . . for further preliminary investigation . . ." Thereafter, on 28 April 1989, Bunye and company received a subpoena from de 47 la Llana requiring them to appear before the latter on 25 April 1989, submit a report and file comment. After being granted an extension, Bunye and company 48 submitted their comment on 18 May 1989. On 22 August 1989, de la Llana recommended the filing of an information for 49 violation of section 3 (e) of the Anti-Graft and Corrupt Practices Act. The case was referred to special prosecuting officer Jose Parentela, Jr. who, in his 50 Memorandum to the Ombudsman through the Acting Special Prosecutor, likewise urged that an information be filed against herein petitioners. On 3 October 1989, the Ombudsman signed his conformity to the Memorandum and approved the 18 January information prepared by Onos, which was then filed with the Sandiganbayan. Consequently, Bunye, et al. were served arrest warrants issued by the Sandiganbayan. Detained at the NBI on 9 October 1989, they claim to have discovered only then the existence of documents recommending and approving the filing of the complaint and a memorandum by special prosecutor Bernardita G. Erum proposing the dismissal of the same. 51 Arraignment was set for 18 October 1989. 52 However, on 14 October 1989, petitioners filed with the Sandiganbayan an "Omnibus Motion to Remand to the Office of the Ombudsman; to Defer Arraignment and to Suspend Proceedings." 53 Subsequently, through new counsel, petitioners filed on 17 October 1989 a Consolidated Manifestation and Supplemental Motion 54 praying, inter alia, for the quashal of the information on the ground that they were deprived of their right to a preliminary investigation and that the information did not charge an offense. The Sandiganbayan issued an order on 18 October 1989 deferring arraignment and directing the parties to submit their respective memoranda, 55 which petitioners complied with on 2 November 1989. 56 On 16 November 1989, special Prosecutor Berbano filed a motion to admit amended information. 57 On 17 November 1989, the Sandiganbayan handed down a Resolution 58 denying for lack of merit the Omnibus Motion to Remand the Case To The Office of the Ombudsman, to Defer Arraignment and to Suspend Proceedings. Petitioners then filed a motion to order a preliminary investigation 59 on the basis of the introduction by the amended information of new, material and substantive allegations, which the special prosecutor opposed, 60 thereby precipitating a rejoinder filed by petitioners. 61 On 4 January 1990, the Sandiganbayan handed down a Resolution 62 admitting the Amended Information and denying the motion to direct preliminary investigation. Their motion to reconsider this Resolution having been denied in the Resolution of 1 February 1990, 63 petitioners filed the instant petition on 12 February 1990. Petitioners claim that respondent Sandiganbayan acted without or in excess of jurisdiction or with manifest grave abuse of discretion amounting to lack of jurisdiction in denying petitioners their right to preliminary investigation and in admitting the Amended Information. They then pray that: (a) the 4 January and 1 February 1990 Resolutions of the Sandiganbayan, admitting the amended information and denying the motion for reconsideration, respectively, be annulled; (b) a writ be issued enjoining the Sandiganbayan from proceeding further in Criminal Case No. 13966; and (c) respondents be enjoined from pursuing further actions in the graft case. We required the respondents to Comment on the petition. On 21 February 1990, petitioners' counsel filed a motion to drop Epifanio Espeleta and Rey E. Dulay as petitioners, 64 and in the Comment they filed on 30 March 1990, in compliance with Our Resolution of 1 March 1990, they state that they do not interpose any objection to the motion. On 20 March 1990, the Office of the Solicitor General moved that it be excused from filing comment for the respondents as it cannot subscribe to the position taken by the latter with respect to the questions of law involved. 65 We granted this motion in the resolution of 8 May 1990. Respondent Berbano filed his comment on 10 September 1991 and petitioners replied on 20 December 1990; Berbano subsequently filed a Rejoinder thereto on 11 January 1991. 66 The Sandiganbayan then filed a manifestation proposing that it be excused from filing comment as its position on the matters in issue is adequately stated in the resolutions sought to be

annulled. On 7 March 1991, We resolved to note the manifestation and order the instant petition consolidated with G.R. No. 85439. The present dispute revolves around the validity of the antecedent proceedings which led to the filing of the original information on 18 January 1989 and the amended information afterwards. THE ISSUES AND THEIR RESOLUTION 1. G. R. No. 85439. As adverted to in the introductory portion of this Decision, the principal issue in G.R. No. 85439 is the validity of the 28 October 1988 Order of respondent Secretary of Agriculture. The exordium of said Order unerringly indicates that its basis is the alleged petition of the general membership of the KBMBPM requesting the Department for assistance "in the removal of the members of the Board of Directors who were not elected by the general membership" of the cooperative and that the "ongoing financial and management audit of the Department of Agriculture auditors show (sic) that the management of the KBMBPM is not operating that cooperative in accordance with P.D. 175, LOI 23, the Circulars issued by DA/BACOD and the provisions and by-laws of KBMBPM." It is also professed therein that the Order was issued by the Department "in the exercise of its regulatory and supervisory powers under Section 8 of P.D. 175, as amended, and Section 4 of Executive Order No. 113." Respondents challenge the personality of the petitioners to bring this action, set up the defense of non-exhaustion of administrative remedies, and assert that the Order was lawfully and validly issued under the above decree and Executive Order. We find merit in the petition and the defenses interposed do not persuade Us. Petitioners have the personality to file the instant petition and ask, in effect, for their reinstatement as Section 3, Rule 65 of the Rules of Court, defining an action for mandamus, permits a person who has been excluded from the use and enjoyment of a right or office to which he is entitled, to file suit. 68 Petitioners, as ousted directors of the KBMBPM, are questioning precisely the act of respondent Secretary in disbanding the board of directors; they then pray that this Court restore them to their prior stations. As to failure to exhaust administrative remedies, the rule is well-settled that this requirement does not apply where the respondent is a department secretary whose acts, as an alter ego of the President, bear the implied approval of the latter, unless actually disapproved by him. 69 This doctrine of qualified political agency ensures speedy access to the courts when most needed. There was no need then to appeal the decision to the office of the President; recourse to the courts could be had immediately. Moreover, the doctrine of exhaustion of administrative remedies also yields to other exceptions, such as when the question involved is purely legal, as in the instant case, 70 or where the questioned act is patently illegal, arbitrary or oppressive. 71 Such is the claim of petitioners which, as hereinafter shown, is correct. And now on the validity of the assailed Order. Regulation 34 of Letter of Implementation No. 23 (implementing P.D. No. 175) provides the procedure for the removal of directors or officers of cooperatives, thus: An elected officer, director or committee member may be removed by a vote of majority of the members entitled to vote at an annual or special general assembly. The person involved shall have an opportunity to be heard. A substantially identical provision, found in Section 17, Article III of the KBMBPM's by-laws, reads: Sec. 17. Removal of Directors and Committee Members. Any elected director or committee member may be removed from office for cause by a majority vote of the members in good standing present at the annual or special general assembly called for the purpose after having been given the opportunity to be heard at the assembly. Under the same article are found the requirements for the holding of both the annual general assembly and a special general assembly.

67

Supervision and control include only the authority to: (a) act directly whenever a specific function is entrusted by law or regulation to a subordinate; (b) direct the performance of duty; restrain the commission of acts; (c) review, approve, reverse or modify acts and decisions of subordinate officials or units; (d) determine priorities in the execution of plans and programs; and (e) prescribe standards, guidelines, plans and programs. Specifically, administrative supervision is limited to the authority of the department or its equivalent to: (1) generally oversee the operations of such agencies and insure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; (2) require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; (3) take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of mal-administration; (4) review and pass upon budget proposals of such agencies but may not 74 increase or add to them. The power to summarily disband the board of directors may not be inferred from any of the foregoing as both P.D. No. 175 and the by-laws of the KBMBPM explicitly mandate the manner by which directors and officers are to be removed. The Secretary should have known better than to disregard these procedures and rely on a mere petition by the general membership of the KBMBPM and an ongoing audit by Department of Agriculture auditors in exercising a power which he does not have, expressly or impliedly. We cannot concede to the proposition of the Office of the Solicitor General that the Secretary's power under paragraph (d), Section 8 of P.D. No. 175 above quoted to suspend the operation or cancel the registration of any cooperative includes the "milder authority of suspending officers and calling for the election of new officers." Firstly, neither suspension nor cancellation includes the take-over and ouster of incumbent directors and officers, otherwise the law itself would have expressly so stated. Secondly, even granting that the law intended such as postulated, there is the requirement of a hearing. None was conducted. Likewise, even if We grant, for the sake of argument, that said power includes the power to disband the board of directors and remove the officers of the KBMBPM, and that a hearing was not expressly required in the law, still the Order can be validly issued only after giving due process to the affected parties, herein petitioners. Due process is guaranteed by the Constitution 75 and extends to administrative proceedings. In the landmark case of Ang Tibay vs. Court of Industrial Relations, 76 this Court, through Justice Laurel, laid down the cardinal primary requirements of due process in administrative proceedings, foremost of which is the right to a hearing, which includes the right to present one's case and submit evidence in support thereof. The need for notice and the opportunity to be heard is the heart of procedural due process, be it in either judicial or administrative 77 proceedings. Nevertheless, a plea of a denial of procedural due process does not lie where a defect consisting in an absence of notice of hearing was thereafter cured by the aggrieved party himself as when he had the opportunity to be heard on a subsequent motion for reconsideration. This is consistent with the principle that what the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of an opportunity to be heard. 78 In the instant case, there was no notice of a hearing on the alleged petition of the general membership of the KBMBPM; there was, as well, not even a semblance of a hearing. The Order was based solely on an alleged petition by the general membership of the KBMBPM. There was then a clear denial of due process. It is most unfortunate that it was done after democracy was restored through the peaceful people revolt at EDSA and the overwhelming ratification of a new Constitution thereafter, which preserves for the generations to come the gains of that historic struggle which earned for this Republic universal admiration. If there were genuine grievances against petitioners, the affected members should have timely raise these issues in the annual general assembly or in a special general assembly. Or, if such a remedy would be futile for some reason or another, judicial recourse was available. Be that as it may, petitioners cannot, however, be restored to their positions. Their terms expired in 1989, thereby rendering their prayer for reinstatement moot and academic. Pursuant to Section 13 of the by-laws, during the election at the first annual general assembly after registration, one-half plus one (4) of the directors obtaining the highest number of votes shall serve for two years, and the remaining directors (3) for one year; thereafter, all shall be elected for a term of two years. Hence, in 1988, when the board was disbanded, there was a number of directors whose terms would have expired the next year (1989) and a number whose terms would have expired two years after (1990). Reversion to the status quo preceding 29 October 1988 would not be feasible in view of this turn of events. Besides, elections were held in 1990 and 1991. 79 The affairs of the cooperative are presently being managed by a new board of directors duly elected in accordance with the cooperative's by-laws. 2. G. R. No. 91927.

Indubitably then, there is an established procedure for the removal of directors and officers of cooperatives. It is likewise manifest that the right to due process is respected by the express provision on the opportunity to be heard. But even without said provision, petitioners cannot be deprived of that right. The procedure was not followed in this case. Respondent Secretary of Agriculture arrogated unto himself the power of the members of the KBMBPM who are authorized to vote to remove the petitioning directors and officers. He cannot take refuge under Section 8 of P.D. No. 175 which grants him authority to supervise and regulate all cooperatives. This section does not give him that right. An administrative officer has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof. 72 These powers should not be extended by implication beyond what may to necessary for their just and reasonable execution. 73

The right of an accused to a preliminary investigation is not among the rights guaranteed him in the Bill of Rights. As stated in Marcos, et al. vs. Cruz, 80 "the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is statutory and it exists and the right thereto can be invoked when so established and granted by law. It is so specifically granted by procedural law. 81 If not waived, absence thereof may amount to a denial of due process. 82 However, lack of preliminary investigation is not a ground to quash or dismiss a complaint or information. Much less does it affect the court's jurisdiction. In People vs. Casiano, 83 this Court ruled: Independently of the foregoing, the absence of such investigation [preliminary] did not impair the validity of the information or otherwise render it defective. Much less did it affect the jurisdiction of the court of first instance over the present case. Hence, had the defendant-appellee been entitled to another preliminary investigation, and had

his plea of not guilty upon arraignment not implied a waiver of said right, the court of first instance should have, either conducted such preliminary investigation, or ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case as it did in the order appealed from. This doctrine was thereafter reiterated or affirmed in several case. 84 In the instant case, even if it is to be conceded for argument's sake that there was in fact no preliminary investigation, the Sandiganbayan, per Doromal vs. Sandiganbayan, 85 "should merely suspend or hold in abeyance proceedings upon the questioned Amended Information and remand the case to the Office of the Ombudsman for him to conduct a preliminary investigation." It is Our view, however, that petitioners were not denied the right to preliminary investigation. They, nevertheless, insist that the preliminary investigation conducted by the Office of the Special Prosecutor existed more in form than in substance. This is anchored on the failure by prosecutor Onos to consider the counter-affidavits filed by petitioners. The same sin of omission is ascribed to Acting Director de la Llana who purportedly failed to consider the comments submitted by the petitioners pursuant to a subpoena dated 13 April 1989. The failure of special prosecutor Berbano to conduct a preliminary investigation before amending the information is also challenged. It is finally urged that the Sandiganbayan completely disregarded the "glaring anomaly that on its face the Information filed by the Office of the Special Prosecutor" was prepared and subscribed on 18 January 1989, while the records indicate that the preliminary investigation was concluded on 3 October 1989. In his Comment, respondent Berbano dispassionately traces the genesis of the criminal information filed before the Sandiganbayan. His assessment that a preliminary investigation sufficient in substance and manner was conducted prior to the filing of the information reflects the view of the Sandiganbayan, maintained in both the 17 November 1989 and 4 January 1990 resolutions, that there was compliance with the requirements of due process. Petitioners were provided a reasonable period within which to submit their counter-affidavits; they did not avail of the original period; they moved for an extension of at least fifteen (15) days from 22 October 1988. Despite the urgency of its nature, the motion was sent by mail. The extension prayed for was good up to 6 November 1988. But, as admitted by them, they filed the Counter-Affidavits only on 9 November 1988. Yet, they blamed prosecutor Onos for promulgating the 11 November 1989 Resolution and for, allegedly, not acting on the motion. Petitioners then should not lay the blame on Onos; they should blame themselves for presuming that the motion would be granted. This notwithstanding, petitioners were able to file a Motion for Reconsideration on 13 December 1988 requesting that the reviewing prosecutor consider the belatedly filed documents; 86 thus, there is the recommendation of prosecutor Bernardita Erum calling for the dismissal of the charges on 2 March 1989, which, however, was not sustained upon subsequent review. The Sandiganbayan, in its 17 November 1989 Resolution, succinctly summed up the matter when it asserted that "even granting, for the sake of argument, that prosecutor Onos . . . failed to consider accused-movants' counter-affidavits, such defect was cured when a "Motion for Reconsideration" was filed, and which . . . de la Llana took into account upon review." It may not then be successfully asserted that the counter-affidavits were not considered by the Ombudsman in approving the information. Perusal of the factual antecedents reveals that a second investigation was conducted upon the "1st Indorsement" of the Ombudsman of 4 April 1989. As a result, subpoenas were issued and comments were asked to be submitted, which petitioners did, but only after a further extension of fifteen (15) days from the expiration of the original deadline. From this submission the matter underwent further review. Moreover, in the 18 January 1989 Order of prosecutor Onos, there was an ample discussion of the defenses raised by the petitioners in their counter-affidavits, thus negating the charge that the issues raised by them were not considered at all. 87 It is indisputable that the respondents were not remiss in their duty to afford the petitioners the opportunity to contest the charges thrown their way. Due process does not require that the accused actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that he be given the opportunity to submit such if he is so minded. 88

review by it. On the contrary, under P.D. No. 911, in relation to Rule 12, Administrative Order No. VII, the Tanodbayan may, upon review, reverse the findings of the investigator and thereafter "where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn statements or evidence submitted, without the necessity of conducting another preliminary investigation." Respondent Sandiganbayan did not then commit any grave abuse of discretion in respect to its Resolutions of 4 January 1990 and 1 February 1990. The petition then must fail. CONCLUSION WHEREFORE, judgment is hereby rendered: 1. GRANTING the petition in G.R. No. 85439; declaring null and void the challenged Order of 28 October 1988 of the respondent Secretary of Agriculture; but denying, for having become moot and academic, the prayer of petitioners that they be restored to their positions in the KBMBPM. 2. DISMISSING, for lack of merit, the petition in G.R. No. 91927. No pronouncement as to costs. IT IS SO ORDERED. Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, GrioAquino, Medialdea, Regalado and Romero, JJ., concur. Gutierrez, Jr. and Nocon, JJ., took no part. ESMAEL ORQUINAZA, G.R. No. 165596 Petitioner, Present:

- versus - Puno, J., Chairman, Austria-Martinez, Callejo, Sr., PEOPLE OF THE PHILIPPINES, Tinga, and RTC JUDGE OF BRANCH 35, *Chico-Nazario, JJ. CALAMBA CITY, MTC JUDGE OF CALAMBA CITY Promulgated: and EDELYN ARIDA, Respondents. November 17, 2005 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION In any event, petitioners did in fact, although belatedly, submit their counteraffidavits and as a result thereof, the prosecutors concerned considered them in subsequent reviews of the information, particularly in the re-investigation ordered by the Ombudsman. Puno, J.: And now, as to the protestation of lack of preliminary investigation prior to the filing of the Amended Information. The prosecution may amend the information without leave of court before arraignment, 89 and such does not prejudice the accused. 90 Reliance on the pronouncements in Doromal vs. Sandiganbayan 91 is misplaced as what obtained therein was the preparation of an entirely new information as contrasted with mere amendments introduced in the amended information, which also charges petitioners with violating Section 3 (e) of the AntiGraft Law. In Gaspar vs. Sandiganbayan, 92 We held that there is no rule or law requiring the Tanodbayan to conduct another preliminary investigation of a case under

Petitioner Esmael Orquinaza filed the instant petition for review assailing the Decision dated July 21, 2004 of the Regional Trial Court (RTC) of Calamba, Laguna, Branch 35 in Civil Case No. 3485-2003-C and its Order dated October 4, 2004.

The facts are as follows: On February 5, 2003, respondent Edelyn Arida, together with her witness, Julio Espinili, executed a sworn statement before the Calamba City Police Station regarding the alleged act of petitioner of kissing her and touching her breasts while she was taking a nap inside the Development Room of the Calamba Model Makers factory. [1] Arida was an employee of Calamba Model Makers while petitioner was its General Manager. In a letter dated February 5, 2003, SPO4 Filipina Manaig referred the case of sexual harassment to the City Prosecutor of Calamba for evaluation and proper disposition. [2] On February 13, 2003, Assistant City Prosecutor Rodel Paderayon issued a subpoena ordering respondent Arida and petitioner to appear at the Office of the Provincial/City Prosecutor for preliminary investigation. [3] Petitioner filed a motion to dismiss before the Office of the City Prosecutor, arguing that the affidavits of Arida and Espinili do not contain allegations to constitute the crime of sexual harassment. [4] On March 25, 2003, Assistant City Prosecutor Paderayon issued a resolution finding that there was no transgression of the anti-sexual harassment law, but petitioner's act of grabbing complainant's breasts and kissing her is punishable under another law for acts of lasciviousness. [5] Thus, he filed with the Municipal Trial Court in Cities (MTCC) an information charging petitioner with acts of lasciviousness. The information states: That on or about 12:45 oclock [sic] in the afternoon of January 16, 2003 in Brgy. Halang, City of Calamba and within the jurisdiction of this Honorable Court, the abovenamed accused, with lewd design, did then and there, wil[l]fully, unlawfully and feloniously grab the breasts and kiss EDELYN ARIDA y PONCE, while the latter was asleep inside the development room of Calamba Model Makers, Inc., without her consent, to her damage and prejudice.

2. The court a quo erred in finding that the Omnibus Motion to Recall Warrant of Arrest, Motion to Quash Information, and to Dismiss the case was not timely interposed. [16]

The petition is unmeritorious. The Court's ruling in People v. Casiano [17] applies to the case at bar. In that case, a preliminary investigation was conducted for the charge of estafa against the accused. However, upon conclusion of the preliminary investigation, the provincial fiscal filed an information for illegal possession and use of a false treasury or bank notes against her. Counsel for the accused filed a motion to dismiss on the ground that there had been no preliminary investigation of the charge of illegal possession and use of a false bank notes, and that absence of such preliminary investigation affected the jurisdiction of the court. The trial court granted said motion. This Court, reversing the decision of the trial court, held: x x x The issue before us is whether defendant is entitled to a preliminary investigation of the crime of illegal possession and use of a false bank note as charged in the information herein. The answer to this question depends upon whether or not such crime was included actually in the allegations of the amended complaint filed with the justice of the peace court, regardless of the term used in said pleading to designate the offense charged therein.

In this connection, the offended party, Ricardo Macapagal, averred in the amended complaint that the '

CONTRARY TO LAW. [6]

The case was docketed as Crim. Case No. 40217-03. On April 10, 2003, Judge Wilhelmina B. Jorge-Wagan issued a warrant of arrest against petitioner.[7] Petitioner filed with the court an omnibus motion praying that (1) the warrant of arrest be recalled, (2) the information be quashed, (3) the arraignment be invalidated and set aside, and (4) the case be dismissed. He argued primarily that the information for acts of lasciviousness was void as the preliminary investigation conducted by the prosecutor was for sexual harassment and not for acts of lasciviousness. He claimed to have been deprived of his right to due process. [8] The motion was denied in an order dated June 4, 2003. [9] The court held that the authority to ascertain what charge or offense should be filed based on the evidence belongs to the public prosecutors and not to the courts. The court said: It need not be overemphasized that public prosecutors have the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option (or discretion) and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one. Conversely, this holds true if the prosecutor found, after conducting the preliminary investigation, that a lesser offense should be filed instead. As to limit this authority would eventually undermine the authority of the prosecutor and impose an intolerable burden on the trial court. x x x [10]

accused under false manifestation and fraudulent representations which she made to Ricardo Macapagal, that a check on its face valued at $300.00 and numbered 728681, was good and genuine as it was drawn by the American Bankers Association against the Guaranty Trust Company of New York in favor of Domingo Flores as Payee, sold to Ricardo Macapagal said check for P580.00 Philippine Currency, which manifestations and representations the accused well knew were false and fraudulent and were only made to induce the aforementioned Ricardo Macapagal to buy said check as he in fact bought said check, paying to mentioned accused the stated amount of P580.00, which amount the accused converted unlawfully to her own use and benefit to the damage and prejudice of Ricardo Macapagal in said sum for the reason that the check upon presentation for collection was dishonored on the ground that it was fraudulent.

Thus, complainant alleged in said amended complaint ' as he did in the original complaint ' that defendant appellee had knowingly had in her possession, with intent to use, and actually used, a false or falsified bank note or other obligation payable to bearer, which is the crime defined and punished in Article 168, in relation to Article 166, of the Revised Penal Code, and the substance of the charge contained in the information above quoted.

Petitioner filed a motion for reconsideration [11] which was likewise denied, [12] prompting him to file a petition for certiorari with the RTC of Calamba City. Petitioner invoked the same arguments raised before the MTCC. [13] The RTC, in its Decision dated July 21, 2004 [14] and its Order dated October 4, 2004, [15]affirmed the order of the MTCC. Hence, this petition where petitioner cites the following assignment of errors: 1. The court a quo erred in not finding that information for 'acts of lasciviousness' is null and void for lack of preliminary investigation on the offense charged in the information.

In other words, regardless of whether or not the crime of 'estafa includes or is included in that of illegal possession or use of a false bank note or other obligation payable to bearer, the Court of First Instance of Pangasinan erred in holding that the allegations of the information filed in this case were not included in those of the aforementioned amended complaint and that defendant-appellee was entitled to another preliminary investigation of the charge contained in the information. It erred, also, in dismissing the case for, even if defendant had a right to such other preliminary investigation, the same was deemed waived upon her failure to invoke it prior to or, at least, at the time of the entry of her plea in the court of first instance. Independently of the foregoing, the absence of such investigation did not impair the validity of the information or otherwise render it

defective. Much less did it affect the jurisdiction of the court of first instance over the present case. Hence, had defendant-appellee been entitled to another preliminary investigation, and had his plea of not guilty upon arraignment not implied a waiver of said right, the court of first instance should have, either conducted such preliminary investigation, or ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case, as it did in the order appealed from.[18] (citations omitted, emphases supplied)

within the competence of the prosecutor to assess the evidence submitted and determine therefrom the appropriate offense to be charged. That is precisely the purpose of the preliminary investigation. It is a means to allow the parties to present their affidavits and counter-affidavits before the prosecutor to enable the latter to ascertain whether there is sufficient ground to indict the accused and to help him prepare the information to be filed in court. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. [20]This function is lodged with the public prosecutors. [21] The Court said in the similar case ofPilapil v. Sandiganbayan: [22] Petitioner attaches significance to the fact that the preliminary investigation conducted by the Ombudsman against him was under the title of 'malversation. According to him, this is not sufficient to justify the filing of the charge of violation of Anti-Graft and Corrupt Practices Law.

In the case at bar, the complainant gave the following statement before the Calamba City Police Station: T: Bakit ka naririto sa himpilan ng pulisya ng Calamba? S: Para po ireklamo itong si ESMAEL ORQUINAZA sa ginawang panghahalik at panghihipo sa aking suso. Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. The preliminary designation of the offense in the directive to file a counter-affidavit and affidavits of one's witnesses is not conclusive. Such designation is only a conclusion of law of Deputy Ombudsman Domingo. The Ombudsman is not bound by the said qualification of the crime. Rather, he is guided by the evidence presented in the course of a preliminary investigation and on the basis of which, he may formulate and designate the offense and direct the filing of the corresponding information. In fact, even the designation of the offense by the prosecutor in the information itself has been held inconclusive, to wit:

xxx

T: Isalaysay mo nga kung paano ito naganap? S: Nasa trabaho ko po noon ako sa pabrika at kasalukuyang namamahinga ako at naidlip na nakasubsob sa lamesa sa loob ng DEVELOPMENT ROOM namin ng bigla na lang ako magulat dahil bigla na lang akong dinakot sa aking magkabilang suso mula sa likod nitong si ESMAEL ORQUINAZA tuloy halik sa aking bibig kaya sa gulat ko ay napatayo ako at natigilan na tanging ang nasabi ko ay 'SIR, BAKIT HO? na wala itong sinabi kundi tumawa lang sa akin kung kaya dali-dali akong lumabas at agad ay sinabi ko sa aking kasamahan na si BERT CAPILI at TESSIE CABUHAT na aking kapatid at kasamahan din doon at sinabihan naman ako ng mga ito na 'MANAHIMIK KA NA LANG AT TALAGANG GANYAN IYAN, MANYAK IYAN kaya di na ako kumibo .

T: Ano pa ang sumunod na pangyayari? S: Noon pong kinasabadohan ay nakasalubong ko ito at dahil kabiruan ko noon ang aking mga kasamahan kung kaya nagtatawanan kami at sinabihan ako nito ng 'MUKHANG MASAYA KA DAHIL NAKIPAGHALIKAN KA na sinagot ko naman ng 'MUKHA NYO at tatawa-tawa pa rin na parang nakakaloko habang palayo ako, kaya noong kinagabihan ay sinabi ko na ang nangyari sa asawa ko kung kaya nag-away kami na hindi naman ako nito naunawaan kung kaya pinalayas pa ako sa bahay kaya doon na ako umuwi sa amin sa Calauan, Laguna at pagpasok ko ng Huwebes ay kinumpronta ako nitong si ESMAEL ORQUINAZA at pinasunod ako sa kanya sa DEVELOPMENT ROOM at tinanong ako na, 'ANO BA ANG PROBLEMA, BAKIT ABSENT ANG IYONG ASAWA tuloy yapos sa akin kung kaya itinulak ko siya at sinabi ko na 'IYAN NA HO ANG DAHILAN KAYA KAMI NAGAWAY MAG-ASAWA DAHIL SINABI KO ANG GINAWA NINYONG PANGHAHALIK AT PANGHIHIPO SA AKIN na sinabi niya na 'WALA YON, I LIKE YOUR FACE, I LIKE YOU, NATUWA LANG AKO SA IYO na naputol ang usapan namin dahil biglang may dumating. [19]

x x x the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. x x x it is not the technical name given by the Fiscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the Information. [23] (emphasis supplied)

Also in that case, the Court found inapplicable the ruling in Luciano v. Mariano, [24] the same case cited by herein petitioner to justify the need for another preliminary investigation, thus: Petitioner cites the case of Luciano vs. Mariano, in support of its view that a new preliminary investigation is needed. In said case, however, the original charge for falsification was dismissed for being without any factual or legal basis and the category of the offense was raised as the alleged violation of the Anti-Graft Law was a graver charge. In the case at bar, there is no dismissal to speak of because under the rules of procedure of the office of the Ombudsman, a complaint may be dismissed only upon the written authority or approval of the Ombudsman. Besides, even the petitioner admits that the violation of the Anti-Graft law did not raise the category of the offense of malversation. [25] The same observation applies in the case at bar. After the Calamba City Police referred the case to the Office of the Prosecutor, Assistant City Prosecutor Rodel Paderayon conducted a preliminary investigation where he required petitioner and respondent to submit their respective affidavits and supporting evidence. Based on the submissions of the parties, he concluded that the more proper charge should be acts of lasciviousness, and accordingly filed the appropriate information. Unlike inLuciano v. Mariano, [26] the Assistant City Prosecutor in this case found sufficient ground to charge petitioner in court. The complaint against petitioner was not dismissed. As earlier discussed, the preliminary investigation conducted against petitioner sufficiently complies with his right under Rule 112 of the Revised Rules of Criminal Procedure. Finally, it is worthy to state that even if it were necessary to conduct another preliminary investigation for the charge of acts of lasciviousness, the lack of such preliminary investigation would still not be a ground to quash the information against the accused. The Court has often held that the lack of preliminary investigation is not a ground to quash or dismiss a complaint or information. Much less does it affect the court's jurisdiction. [27] The absence of a preliminary investigation does not affect the court's jurisdiction over the case nor impair the validity of the information or otherwise render it defective. The remedy of the accused in such case is to call the attention of the court to the lack of a

This statement was submitted by the Calamba City Police to the Office of the Prosecutor for the conduct of the preliminary investigation. Clearly, Arida's statement contains all the allegations to support the charge of acts of lasciviousness under Article 336 of the Revised Penal Code, i.e., (1) the offender commits any act of lasciviousness or lewdness, (2) under any of the following circumstances: (a) using force or intimidation, (b) the offended party is deprived of reason or otherwise unconscious, or (c) offended party is under 12 years of age. Petitioner had the opportunity to refute all the allegations made by Arida when the Assistant City Prosecutor required him to submit his counter-affidavit. The conduct of another preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because the complainant would only be presenting the same facts and evidence which have already been studied by the prosecutor. The Court frowns upon such superfluity which only serves to delay the prosecution and disposition of the criminal complaint. The designation by the police officer of the offense as sexual harassment when she referred the case to the Office of the Prosecutor is not conclusive as it is

preliminary investigation and demand, as a matter of right, that one be conducted. The court, instead of dismissing the information, should merely suspend the trial and order the fiscal to conduct a preliminary investigation. [28] We find, therefore, that the RTC did not err in affirming the order of the MTCC which denied the motion of petitioner to quash the information and to recall the warrant of arrest against him. We also hold that the resolution of the first issue raised by petitioner renders irrelevant the discussion of the second issue, for even if we find the motion to quash to be timely filed, it would still be denied for lack of merit. IN VIEW WHEREOF, the petition is DENIED. Costs against petitioner. SO ORDERED. [G.R. Nos. 107964-66. February 1, 1999] THE PEOPLE of the PHILIPPINES represented by the PANEL OF PROSECUTORS, DEPARTMENT OF JUSTICE, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Branch 52, Regional Trial Court of Manila, and IMELDA R. MARCOS, respondents. DECISION MARTINEZ, J.: On January 9, 1992, three criminal informations for violation of Section 4 of Central Bank Circular No. 960, as amended,[1] in relation to Section 34 of Republic Act No. 265[2] were filed against private respondent Imelda R. Marcos before Branch 158 of the Regional Trial Court (RTC) of Pasig (herein Branch 158-Pasig). Said Informations docketed as Criminal Case Nos. 90384-92, 90385-92 and 90386-92 were amended prior to arraignment.[3] After arraignment, where private respondent pleaded not guilty, the People thru herein petitioner, Panel of Prosecutors from the Department of Justice (DOJ) and the Solicitor General filed separate motions for consolidation of the three (3) Informations pending before Branch 158-Pasig with the 21 other [4] cases pending before RTC Branch 26-Manila (herein Branch 26-Manila). The Solicitor General alleged in its motion that the indictable acts under the three informations form part of and is related to the transaction complained of in criminal cases 91-101732, 91-101734 and 91-101735 pending before Branch 26Manila[5] and that these two groups of cases (the Pasig and Manila cases) relate to a series of transactions devised by then President Ferdinand Marcos and private respondent to hide their ill-gotten wealth.[6] The RTC of Pasig granted the motion for consolidation provided there is no objection from the presiding judge of Branch 26-Manila.[7] Before the Manila RTC, the three (3) informations were re-raffled and re-assigned instead to Branch 52-Manila presided by public respondent Judge Nitafan wherein the three informations (Criminal Cases Nos. 90384-92, 90385-92 and 90386-92) were re-numbered as Criminal Case Nos. 92-107942; 92-107943 and 92-107944. Then, without private respondent yet taking any action or filing any motion to quash the informations, respondent judge issued an order dated July 20, 1992 requiring petitioners to show cause why criminal case number 92-107942 should not be dismissed on the ground that it violates private respondents right against ex post facto law.[8] In that order, respondent judge said that a check with official publications reveals that CB Circular 960 is dated 21 October 1983 (x x x) and that said regulatory issuance was imperfectly published* in the January 30, 1984 issue of the Official Gazette.[9] Respondent judge concluded that since the date of violation alleged in the information was prior to the date and complete publication of the Circular charged to have been violated, the information in this case appears peremptorily dismissible, for to apply the Circular to acts performed prior to its date and publication would make it an ex post facto law, which is a violation of the Constitution.[10] On the same day, respondent judge issued another order requiring the prosecution to show cause why the two other criminal informations (92-107943 and 92-107944) should not be dismissed on the ground that private respondents right to double jeopardy was violated.[11] It is respondent judges posture that based on the Solicitor-Generals allegations in its Motion for Consolidation filed in Branch 58-Pasig that the three cases form part of a series of transactions which are subject of the cases pending before Branch 26-Manila, all these cases constitute one continuous crime. Respondent judge further stated that to separately prosecute private respondent for a series of transaction would endow it with the functional ability of a worm multiplication or amoeba reproduction.[12] Thus, accused would be unduly vexed with multiple jeopardy. In the two orders, respondent judge likewise said that the dismissal of the three seemingly unmeritorious and duplicitous cases would help unclogged his docket in favor of more serious suits.[13] The prosecution complied with the twin show cause orders accompanied by a motion to inhibit respondent judge. On August 6, 1992, respondent judge issued an order denying the motion for consolidation (embodied in the prosecutions compliance with the show cause orders) of the three informations with those pending before Branch 26-Manila on the ground that consolidation of cases under Rule 31 of civil procedure has no counterpart in criminal procedure, and blamed the panel of prosecutors as apparently not conversant with the procedure in the assignment of cases. As additional justification, respondent judge stated that since he is more studious and discreet, if not more systematic and methodical, than the prosecution in the handling of cases, it would be unfair to just pull out the case when he had already studied it.[14] The next day, August 7, 1992, respondent judge issued an 8-page order dismissing criminal case no. 92-107942 on the ground that the subject CB Circular is an ex post facto law.[15] In a separate 17-page order dated August 10,

1992, respondent judge also dismissed the two remaining criminal cases (92107943 & 92-107944) ruling that the prosecution of private respondent was part of a sustained political vendetta by some people in the government aside from what he considered as a violation of private respondents right against double [16] jeopardy. From his disquisition regarding continuing, continuous and continued offenses and his discussion of mala prohibita, respondent judge further ratiocinated his dismissal order in that the pendency of the other cases before Branch 26-Manila had placed private respondent in double jeopardy because of the three cases before his sala. The prosecution filed two separate motions for reconsideration which respondent judge denied in a single order dated September 7, 1992 containing 19 pages wherein he made a preliminary observation that: (T)he very civil manner in which the motions were framed, which is consistent with the high ideals and standards of pleadings envisioned in the rules, and for which the panel should be commended. This only shows that the Members of the panel had not yielded to the derisive, panicky and intimidating reaction manifested by their Department Head when, after learning the promulgation of the orders dismissing some of Imelda Romualdez-Marcos cases, Secretary Drilon went to the media and repeatedly aired diatribes and even veiled threats against the trial judges concerned. By the constitutional mandate that A member of the judiciary must be a person of proven competence, integrity, probity, and independence (Sec 7[3], Art. VIII, judges are precluded from being dragged into running debates with partieslitigants or their counsel and representatives in media, yet by reason of the same provision judges are mandated to decide cases in accordance with their own independent appreciation of the facts and interpretation of the law. Any judge who yields to extraneous influences, such as denigrating criticisms or threats, and allows his independence to be undermined thereby, leading to violation of his oath of office, has no right to continue in his office any minute longer. The published reaction of the Hon. Secretary is to be deplored, but it is hoped that he had merely lapsed into impudence instead of having intended to set a pattern of mocking and denigrating the courts. He must have forgotten that as Secretary of Justice, his actuations reflect the rule of law orientation of the administration of the President whom he represents as the latters alter ego.[17] (emphasis supplied). The dispositive portion reconsideration provides: of the order denying the motions for

FOR ALL THE FOREGOING CONSIDERATIONS, the Court finds no valid reason to reconsider the dismissals heretofore decreed, and the motions for reconsideration are consequently denied for manifest lack of merit.[18] Obviously dissatisfied, petitioners elevated the case via petition for certiorari, where the primary issue raised is whether a judge can motu proprio initiate the dismissal and subsequently dismissed a criminal information or complaint without any motion to that effect being filed by the accused based on the alleged violation of the latters right against ex post facto law and double jeopardy. Section 1, Rule 117 of the Rules on Criminal Procedure provides: Time to move to quash. At any time before entering his plea, the accused may move to quash the complaint or information. (emphasis supplied). It is clear from the above rule that the accused may file a motion to quash an information at any time before entering a plea or before arraignment. Thereafter, no motion to quash can be entertained by the court except under the circumstances mentioned in Section 8 of Rule 117 which adopts the omnibus motion rule. In the case at at bench, private respondent pleaded to the charges without filing any motion to quash. As such, she is deemed to have waived and abandoned her right to avail of any legal ground which she may have properly and timely invoke to challenge the complaint or information pursuant to Section 8 of Rule 117 which provides: Failure to move to quash or to allege any ground therefore. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in his motion, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of section 3 of this Rule. (emphasis supplied) It is also clear from Section 1 that the right to file a motion to quash belongs only to the accused. There is nothing in the rules which authorizes the court or judge to motu proprio initiate a motion to quash if no such motion was filed by the accused. A motion contemplates an initial action originating from the accused. It is the latter who is in the best position to know on what ground/s he will based his objection to the information. Otherwise, if the judge initiates the motion to quash, then he is not only pre-judging the case of the prosecution but also takes side with the accused. This would violate the right to a hearing before an independent and impartial tribunal. Such independence and impartiality cannot be expected from a magistrate, such as herein respondent judge, who in his show cause orders, orders dismissing the charges and order denying the motions for reconsideration stated and even expounded in a lengthy disquisition with citation of authorities, the grounds and justifications to support his action. Certainly, in compliance with the orders, the prosecution has no choice but to present arguments contradicting that of respondent judge. Obviously, however, it cannot be expected from respondent judge to overturn the reasons he relied upon in his different orders without contradicting himself. To allow a judge to initiate such motion even under the guise of a show cause order would result in a situation where a magistrate who is supposed to be neutral, in effect, acts as counsel for

the accused and judge as well. A combination of these two personalities in one person is violative of due process which is a fundamental right not only of the accused but also of the prosecution. That the initial act to quash an information lodged with the accused is further supported by Sections 2, 3 and 8 of Rule 117 which states that: Section 2. The motion to quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the factual and legal grounds therefor and the Court shall consider no grounds other than those stated therein, except lack of jurisdiction over the offense charged. Section 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: a) b) That the facts charged do not constitute an offense; That the court trying the case has no jurisdiction over the offense charged or the person of the accused; That the officer who filed the information had no authority to do so; That it does not conform substantially to the prescribed form; That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses; That the criminal action or liability has been extinguished; That it contains averments which, if true, would constitute a legal excuse or justification; and That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged.

When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessary included in the offense charged in the former complaint or information. x x x xxx x x x.
[22]

Under said Section, the first jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.[23] Other than the Solicitor-Generals allegation of pending suits in Branch 26Manila, respondent judge has no other basis on whether private respondent had already been arraigned, much less entered a plea in those cases pending before the said Branch. Even assuming that there was already arraignment and plea with respect to those cases in Branch 26-Manila which respondent judge used as basis to quash the three informations pending in his sala, still the first jeopardy has not yet attached. Precisely, those Branch 26-Manila cases are still pending and there was as yet no judgment on the merits at the time respondent judge quashed the three informations in his sala. Private respondent was not convicted, acquitted nor the cases against her in Branch 26-Manila dismissed or otherwise terminated which definitely shows the absence of the fifth requisite for the first jeopardy to attached. Accordingly, it was wrong to say that the further prosecution of private respondent under the three informations pending Branch 56-Manila would violate the formers right against double jeopardy. WHEREFORE, Premises considered, the petition is GRANTED and the two orders dated January 20, 1990, as well as the orders dated August 7, 1992, August 10, 1992 and September 7, 1992 all issued by respondent judge are hereby REVERSED AND SET ASIDE. Let this case be REMANDED to the trial court for further proceedings. SO ORDERED.

c) d) e)

f) g)

h)

Section 8. The failure of the accused to assert any ground of a motion to quash before he pleads (Emphasis supplied). Section 2 requires that the motion must be signed by accused or his counsel; Section 3 states that the accused may file a motion, and; Section 8 refers to the consequence if the accused do not file such motion. Neither the court nor the judge was mentioned. Section 2 further, ordains that the court is proscribed from considering any ground other than those stated in the motion which should be specify(ied) distinctly therein. Thus, the filing of a motion to quash is a right that belongs to the accused who may waived it by inaction and not an authority for the court to assume. It is therefore clear that the only grounds which the court may consider in resolving a motion to quash an information or complaint are (1) those grounds stated in the motion and (2) the ground of lack of jurisdiction over the offense charged, whether or not mentioned in the motion. Other than that, grounds which have not been sharply pleaded in the motion cannot be taken cognizance of by the court, even if at the time of filing thereof, it may be properly invoked by the defendant. Such proscription on considerations of other grounds than those specially pleaded in the motion to quash is premised on the rationale that the right to these defenses are waivable on the part of the accused, and that by claiming to wave said right, he is deemed to have desired these matters to be litigated upon in a full-blown trial. Pursuant to the Rules, the sole exception is lack of jurisdiction over the offense charged which goes into the competence of the court to hear and pass judgment on the cause. With these, the rule clearly implies the requirement of filing a motion by the accused even if the ground asserted is premised on lack of jurisdiction over the offense charged. Besides, lack of jurisdiction should be evident from the face of the information or complaint to warrant a dismissal thereof. Happily, no jurisdictional challenge is involved in this case. Assuming arguendo that a judge has the power to motu proprio dismiss a criminal charge, yet contrary to the findings of respondent judge, the grounds of ex post facto law and double jeopardy herein invoked by him are not applicable. On ex post facto law, suffice it to say that every law carries with it the presumption of constitutionality until otherwise declared by this court.[19] To rule that the CB Circular is an ex post facto law is to say that it is unconstitutional. However, neither private respondent nor the Solicitor-General challenges it. This Court, much more the lower courts, will not pass upon the constitutionality of a statute or rule nor declare it void unless directly assailed in an appropriate action. With respect to the ground of double jeopardy invoked by respondent judge, the same is improper and has neither legal nor factual basis in this case. Double jeopardy connotes the concurrence of three requisites, which are: (a) the first jeopardy must have attached prior to the second, (b) the first jeopardy must have been validly terminated, and (c) the second jeopardy must be for the same offense as that in the first[20] or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.[21] In this case, it is manifestly clear that no first jeopardy has yet attached nor any such jeopardy terminated. Section 7, Rule 117 provides:

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and GonzagaReyes, JJ., concur. [G.R. No. 144159. September 29, 2004] PEOPLE OF THE PHILIPPINES, petitioner, vs. SANDIGANBAYAN MANUEL S. ALBA, respondents. DECISION CALLEJO, SR., J.: This is a petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the Resolution of the Sandiganbayan (SB) dated June 23, 2000, quashing the Information in Criminal Case No. 25653 and acquitting the respondent of the crime charged therein. The Antecedents On February 17, 1999, an Affidavit-Complaint was filed by Luis G. Pabalan in the Office of the Ombudsman against the respondent, then City Administrator Manuel S. Alba of Quezon City, and the Chairman of Iglesia Evangelica Metodista En Las Islas Filipinas (IEMELIF), Jeremias T. Cruz. The case was docketed as OMB-0-99-0346 and was assigned to the Evaluation and Preliminary Investigation Bureau (EPIB) which, in turn, assigned Graft Investigator Romeo M. Pamute to conduct an evaluation and a preliminary investigation. Based on the records, the Graft Investigator found that the case stemmed from the following facts: Respondent MANUEL S. ALBA is a high ranking government official being the City Administrator of Quezon City with a salary grade of 27 while respondent JEREMIAS T. CRUZ is a private person. The latter is the Chairman of the Evangelist Methodist Church in the Philippines Novaliches Congregation, Novaliches, Quezon City. In his sworn complaint, complainant, LUIS PABALAN, stated that he is the owner of a lot located at Susano Road, Novaliches, Quezon City, where the Congregation of Evangelist Church of the Philippines (IEMELIF) headed by respondent Architect JEREMIAS T. CRUZ encroached when improvements on their structure were made sometime in February 1997. The construction was done without the necessary building permit. The Quezon City building official was, accordingly, informed and consequently after hearing, the Assistant Building Official ordered the demolition of the structure. The Order becomes final and executory upon failure of the religious congregation (IEMELIF) to appeal on time to the DPWH. On November 4, 1998, however, IEMELIF, through respondent JEREMIAS T. CRUZ, wrote respondent City Administrator, Mr. MANUEL ALBA requesting the latter that said order be not enforced pending appeal to the DPWH stating, and

among others, that the Order of the Assistant Building Official is illegal and the implementation of the same will cause irreparable damage and injury to the church (IEMELIF). The letter of IEMELIF was received on November 5, 1998 by the Office of the respondent MANUEL ALBA but a Memorandum ordering the recall of the demolition order was dated November 4, 1998 or a day before the receipt of said letter. The complainant objected and in a letter requested respondent ALBA to revoke the Order recalling the demolition, but respondent City Administrator refused and failed to respond and, as a result, the Building Official was not able to effect the demolition. Complainant presented his title to the lot, the Resolution of the Building Official ordering the demolition of the structure; the Order granting the Motion for Execution; the letter of Appeal by respondent JEREMIAS T. CRUZ to the Mayor of Quezon City thru respondent MANUEL ALBA stamped received by the City Administrators Office on November 5, 1998; the Memorandum of respondent MANUEL S. ALBA to Engr. Romualdo Santos showing that the date is November 4, 1998; and the letter of objection and request that the recall order on the demolition be corrected was, likewise, presented by the complainant.[1] In his Counter-Affidavit, the respondent alleged, inter alia, that he acted on the appeal of respondent Cruz and recalled the demolition order which was issued by the building official. He did so on the basis of the authority delegated to him under the January 12, 1994 Memorandum issued by the Mayor, as well as the guidelines implementing the said memorandum, where it was stated that no demolition shall be allowed pending an appeal to higher authorities. The Graft Investigator found probable cause against the respondent for violation of Section 3(e) of Republic Act No. 3019 and recommended the filing of the Information against him. The Ombudsman approved the recommendation. On September 9, 1999, an Information was filed with the SB, charging the respondent with violation of Section 3(e) of Rep. Act No. 3019. The accusatory portion of the Information reads: That on or about November 5, 1998 or sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, a public officer, being the City Administrator of Quezon City while in the performance of his official function and acting with evident bad faith and manifest partiality, did then and there, willfully, unlawfully and criminally, issue a Memorandum recalling the Order of Demolition issued by the Acting Building Official knowing fully well that he has no authority to do so, thus, giving unwarranted preference to Jeremias T. Cruz in the discharged (sic) of his official functions. CONTRARY TO LAW.[2] Appended to the Information were the following: (a) the memorandum of the Legal Counsel, Office of the Ombudsman duly approved by the Ombudsman, which recommended the approval of the resolution of the EPIB, Office of the Ombudsman, finding probable cause against the respondent, as well as the prosecution of the crime charged; (b) the affidavit-complaint; (c) the counteraffidavit of the respondent; and (d) the Resolution of the EPIB. As ordered by the SB, the special prosecutor submitted Annexes A to F of the affidavit-complaint and Annexes 1 to 4 of the respondents counter -affidavit on September 24, 1999. On October 4, 1999, the respondent filed with the SB a Motion for Leave to Order Reinvestigation and/or Quash Information on the following grounds: I THE FINDING OF PROBABLE CAUSE IN THE RESOLUTION OF THE OFFICE OF THE OMBUDSMAN, WHICH WAS THE BASIS OF THE INFORMATION FILED AGAINST THE ACCUSED, WAS NOT SUPPORTED BY THE FACTS AND EVIDENCE OF THIS CASE. II THE FACTS RECITED IN THE INFORMATION ARE NOT SUFFICIENT IN SUBSTANCE TO INDICT THE ACCUSED CRIMINALLY, BECAUSE THEY WERE BASED ON ERRONEOUS PREMISES CONTAINED IN THE RESOLUTION OF THE OFFICE OF THE OMBUDSMAN.[3] During the hearing of the motion, the respondent, through counsel, agreed to convert his motion into a motion for reconsideration of the resolution of the Ombudsman finding probable cause against him. Since no objection was made by the special prosecutor to the motion for a reinvestigation, the SB issued an Order on October 8, 1998, granting the motion and ordering the special prosecutor to take appropriate action on the respondents motion for reconsideration. It, likewise, directed the Special Prosecutor to inform the SB of its findings and recommendation, as well as the order of the Ombudsman, within sixty (60) days from the said date.[4] On December 8, 1999, the respondent filed a Memorandum in support of his motion for reconsideration. On January 25, 2000, the Special Prosecutor filed a Manifestation and Motion,[5] informing the SB that, after a review of the case, the Office of the Ombudsman was affirming its finding of probable cause against the respondent and prayed for his arraignment. Appended to the motion was the memorandum duly approved by the Ombudsman, recommending that the resolution of the EPIB be affirmed.[6] Accordingly, the SB set the arraignment of the respondent at

8:30 a.m. of February 18, 2000. On February 2, 2000, the respondent filed a Motion to Resolve the Opposition to the Manifestation and Motion of the Special Prosecutor dated January 21, 2000, with a motion to reset his arraignment. He later filed a motion for postponement/deferment of his arraignment and the pretrial to enable him to file the appropriate motion with the SB. The arraignment of the respondent was reset to 8:30 a.m. of March 27, 2000. In its Comment on the Opposition of the respondent to the Manifestation and Motion[7] dated January 28, 2000, the prosecution averred that the said opposition and motion had been mooted by the re-setting of the respondents [8] arraignment on March 27, 2000. On even date, the SB issued an Order holding in abeyance the arraignment of the respondent until after it shall have resolved the motion for leave to order reinvestigation and/or quash information filed by him. Nevertheless, on April 10, 2000, the respondent, assisted by counsel, was arraigned and pleaded not guilty. On the same day, the SB issued an [9] Order granting his motion for leave to travel abroad without prejudice to the resolution of his motion to quash information. On April 14, 2000, the Special [10] Prosecutor filed her Comment/Opposition to the respondents motion to quash. On June 23, 2000, the SB issued a Resolution granting the motion to quash the information of the accused and acquitting the respondent of the [11] charge. The SB held that based on the records, there was no probable cause to charge the respondent of the crime. It based its findings on the Memorandum of then Mayor Ismael A. Mathay to the respondent dated January 12, 1994, and a portion of the Resolution of Graft Investigator Romeo Pamute dated July 23, 1999 which was duly approved by the Ombudsman. The SB lifted the Hold Departure Order it earlier issued on June 26, 2000.[12] The Present Petition On August 15, 2000, the People of the Philippines, through the Special Prosecutors Office (SPO), filed a petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the June 23, 2000 Resolution of the Sandiganbayan (SB). It anchors its petition on the following arguments: 1. THE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ACQUITTED MANUEL ALBA OF THE CRIME CHARGED IN CRIMINAL CASE NO. 25653 DESPITE THE FACT THAT HE HAS NOT YET BEEN ARRAIGNED OR THE PROSECUTION ALLOWED TO PROVE ITS CASE. 2. THE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT GRANTED MANUEL ALBAS MOTION TO QUASH ON THE BASIS OF A MEMORANDUM ISSUED BY THE QUEZON CITY MAYOR, WHICH MEMORANDUM HAS ALREADY BEEN SUPERSEDED. 3. THE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DENIED THE PETITIONER ITS RIGHT TO DUE PROCESS.[13] On the first issue, the petitioner avers that the SB acted with grave abuse of discretion amounting to lack or excess of jurisdiction in quashing the information. We agree with the petitioner. The records show that the SB quashed the information with the ruling that the respondent acted on the basis of the January 12, 1994 Memorandum to him of then Mayor Ismael Mathay, quoted infra: MEMORANDUM TO : DR. MANUEL ALBA City Administrator In view of the multifarious duties attendant to my dual position as Chairman, Metro Manila Authority and Mayor of Quezon City, the authority to issue orders for the demolition of illegal structures is hereby delegated to you. You may sign as follows: BY AUTHORITY OF THE CITY MAYOR MANUEL S. ALBA City Administrator It is understood that the aforementioned authority shall be exercised pursuant to the attached copy of guidelines issued by the undersigned. Periodic reports of demolition undertaken under this authority should be submitted to this Office. This Memorandum takes effect immediately. (Sgd.) ISMAEL A. MATHAY, JR. City Mayor[14] The SB concluded that, having acted on the basis of the memorandum of the Mayor, the respondent could not be considered as having usurped the

authority of the building official or of the Secretary of Public Works and Highways, or that he acted with manifest partiality, evident bad faith or gross inexcusable negligence. The SB also relied on the resolution of the Graft Investigator, Romeo Pamute, dated July 23, 1999, duly approved by the Ombudsman, which reads: It is our view that the relief granted by respondent City Administrator in his Memorandum is only temporary in nature and will last only for a meantime that the legality or otherwise of the contested demolition order is being determined by the DPWH. We agree that greater injury could have been caused had the questioned demolition order was carried out but later on if it will be found that the property claimed by the complainant as his belongs not to him but to the religious congregation represented by the private respondent. We see nothing wrong if the complainant could wait a little while in the interest of justice and fair play. It has to be realized that the ownership issue should share equal attention as that of the demolition issue raised by the complainant. It is a reality in our system of government that resolving an issue via a judicial or administrative remedy, is a long and tedious process if we have to be meticulous in the just dispensation of justice. The government has not yet invented a system, a sure-fire formula wherein justice could be dispensed with in just a click of a finger. To hurry demolishing a structure where an appeal has been made and taken cognizance of by higher appellate agency of the government is recklessness and may result to grave injustice. We agree with the rationale in the assailed Memorandum issued by the respondent City Administrator to the Acting Building Official. [15] The SB ruled that, based on the facts and the evidence on record, there was no probable cause for the issuance of a warrant of arrest against the respondent; hence, the information should be quashed and the respondent be acquitted of the crime charged. However, as pointed out by the petitioner, the January 12, 1994 Memorandum of the Mayor had already been amended by a subsequent issuance, Memorandum No. 4, which states, inter alia, that the authority to act on violations of the Building Code no longer rested on the respondent as City Administrator, but on the City Engineer or his assistant, viz: a. For violation of Building Code b. Illegal Structures under RA 7279 (Squatting) City Engineer/Asst. City Bldg. Official City Administrator[16]

Due to the exigencies of the service, the Secretary may designate incumbent Public Works District Engineers, City Engineers and Municipal Engineers to act as Building Officials of their respective areas of jurisdiction. [Section 201] Due to the exigencies of the service, the incumbent city and municipal engineers have been designated to act as building officials in their respective areas of jurisdiction. (Section 205) x x x When acting as building officials the city and municipal engineers, who are local officials, should be deemed national officials subject to the supervision of the Minister of Public Works (Opinion No. 144, Series of 1979). (Underscoring supplied) It does not appear from the Local Government Code that vesting of power in the local chief executive to appoint engineer who, in the case of cities and municipalities, shall likewise act as local building official, also carries with it the power to exercise appellate jurisdiction over the decisions in matters involving non-issuance, suspension, revocation of building permits. Absent any clear and explicit provision in the said code to this effect, we cannot conclude that the appellate jurisdiction vested in the Secretary of Public Works and Highways under Section 307 of the National Building Code has been [18] transferred to the city or municipal mayor. What is worrisome is that, to justify its illegal quashal of the information, the SB quoted only a portion of the resolution of Special Prosecutor Pamute, and omitted, either deliberately or inadvertently, the ratio decidendi thereof: We agree with the rationale in the assailed Memorandum issued by the respondent City Administrator to the Acting Building Official. It is alright if only the same is issued by the officials authorized to do so by the DPWH officials where appeal of that nature is vested by law. But it appears that respondent Manuel S. Alba is bereft of power to exercise appellate jurisdiction over the action of local building official relative to building permits. We find merit in complainants submission in his reply that nowhere in the National Building Code or in the DILG law could we find a provision which empower the local chief executive to exercise appellate jurisdiction over the decisions of the local building officials relative to the non-issuance, suspension or revocation of building permits. x x x Absent any clear provision of law we cannot conclude that the appellate jurisdiction vested in the Secretary of Public Works and Highways under Section 307 of the National Building Code has been transferred to the city or municipal mayor. Moreover, the action made by respondent City Administrator is flawed by the fact that the date of the assailed Memorandum is earlier than the date of receipt of the letter that has to be acted upon. We viewed this as irregular. (Underscoring supplied)[19] We note that during the hearing of October 8, 1999, the respondent agreed that his motion for leave to order reinvestigation and/or quash the information be converted to a motion for reconsideration of the Resolution of the Office of the Ombudsman, finding probable cause for violation of Section 3(e) of Rep. Act No. 3019. This can be gleaned from the following Order of the SB: When the Motion for Leave to Order Reinvestigation and/or Quash Information dated October 4, 1999 filed by the accused, through counsel, was called for hearing, Pros. Jacqueline Ongpauco-Cortel manifested in open court that the prosecution has no objection if the said motion is converted by movant-accused into a Motion for Reconsideration under Section 27 of Republic Act No. 6770 (Ombudsman Act) inasmuch as the five-day period provided therein was not observed. The accused, assisted by counsel, Atty. Danny B. Gille, agreed to convert the said motion into a Motion for Reconsideration under Section 27 of Republic Act No. 6770.[20] With the conversion of the Omnibus Motion of the respondent into a motion for reconsideration, he, in effect, withdrew his motion to quash the information. Accordingly, the required reinvestigation was conducted to ascertain, once again, if there was probable cause for the filing of the information. There was, thus, no motion to quash the information pending resolution by the SB. Moreover, on January 12, 2000, the SPO filed a Manifestation and Motion[21] with the SB stating, among others, that the Ombudsman had affirmed his finding of a probable cause against the respondent and prayed for the arraignment of the accused. The respondent was accordingly arraigned, on April 10, 2000, and pleaded not guilty. He even posted a bail bond for his provisional liberty, which was duly approved by the SB. The court, thus, had already acquired jurisdiction over the person of the respondent without the need for the issuance of a warrant of arrest for his apprehension and incarceration. The SB should have set the pre-trial of the case instead of quashing the Information and even acquitting the respondent. The arraignment of the respondent and his posting a bail bond for his provisional liberty proscribed the SB from dismissing the case for lack of probable cause. Under Section 3, Rule 117, of the Rules of Criminal Procedure, a motion to quash an information may be filed only for the following grounds: SEC. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and

We also agree with the petitioners contention that the January 12, 1994 Memorandum of Mayor Mathay is even contrary to Section 307 of Presidential Decree No. 1096, otherwise known as the National Building Code of the Philippines, which reads: Section 307. Appeal. Within fifteen (15) days from the date of receipt of advice of the non-issuance, suspension or revocation of permits, the applicant-permittee may file an appeal with the Secretary who shall render his decision within fifteen days from date of receipt of notice of appeal. The decision of the Secretary shall be final subject only to review by the Office of the President.[17] To rectify his erroneous January 12, 1994 Memorandum, Mayor Mathay had to issue Memorandum No. 4 to the respondent. Moreover, in Opinion No. 36, Series of 1996, the Secretary of Justice succinctly ruled that only the city engineer, as the building official, has the exclusive authority to act on matters relating to the issuance of demolition permits or the revocation or suspension thereof. The law is clear that the Secretary of the Department of Public Works and Highways has jurisdiction over appeals from the decisions of building officials involving the non-issuance, suspension or revocation of building permits. His decision is final subject only to review by the Office of the President. In line with existing jurisprudence, jurisdiction must exist as a matter of law. (Bacalso vs. Ramolete, 21 SCRA 519; Garcia vs. De Jesus, 206 SCRA 779) Section 307 of P.D. No. 1096 is the law that confers jurisdiction upon the DPWH Secretary to adjudicate appeals from the orders or decisions of the building officials. Section 477 of the Local Government Code of 1991 is cited to support the view that the appellate jurisdiction over decisions of building officials has been devolved to the city/municipal mayor. But Section 477 which reads: Section 477- Qualifications, Powers and Duties xxx xxx xxx

The appointment of an engineer shall be mandatory for the provincial, city and municipal governments. The city and municipal engineer shall also act as the local building official should be read in conjunction with Section 205 of the National Building Code which provides: Section 205. Building Officials. xxx xxx xxx

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without [22] his express consent. To quash means to annul, vacate or overthrow.[23] The absence of probable cause for the issuance of a warrant of arrest is not a ground for the quashal of the Information but is a ground for the dismissal of the case. It bears stressing that, even before the effectivity of the Revised Rules of Criminal Procedure, the Regional Trial Court issues a warrant for the arrest of the accused only upon a finding of probable cause based on the resolution of the Investigating Prosecutor, the affidavits and other evidences appended to the Information, whatever evidence the Prosecutor may adduce upon order of the court. If the court finds that there is no probable cause for the issuance of a warrant of arrest, it may dismiss the case. The dismissal of the case is without prejudice to the refiling thereof unless barred by prescription. Indeed, the procedure is now encoded in Section 6, Rule 112, of the Revised Rules of Criminal Procedure. The trial court is mandated to immediately dismiss the case upon finding that no probable cause exists to issue a warrant of arrest, and after having evaluated the resolution of the prosecutor and the supporting evidence: SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to Section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information. The absence or presence of probable cause is to be determined from the material averments of the information and the appendages thereof, as enumerated in Rule 112, Section 8 of the Revised Rules of Criminal Procedure, viz: SEC. 8. Records.(a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution of the case. By quashing the Information on the premise of lack of probable cause instead of merely dismissing the case, the SB acted in violation of case law and, thus, acted with grave abuse of its discretion amounting to excess or lack of jurisdiction. On the second issue, we find and so rule that in acquitting the respondent of the crime charged before trial, and without the latter having prayed for such relief, the SB acted without jurisdiction, thereby depriving the petitioner of its right to due process. The records show that the only prayer of the respondent in his Omnibus Motion was as follows:

Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication, the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of the trial courts order of dismissal. The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to due process by aborting its right to complete the presentation of its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused to a second jeopardy. In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in the Bocar case, holding that the trial court exceeded its jurisdiction and acted with grave abuse of discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby violating its fundamental right to due process. With such violation, its orders are, therefore null and void and cannot constitute a proper [28] basis for a claim of double jeopardy. The respondent cannot even invoke double jeopardy, conformably to our [29] ruling in People of the Philippines vs. Court of Appeals, where we had the occasion to state: The appellate court acted with grave abuse of its discretion when it ventured beyond the sphere of its authority and arrogated unto itself, in the certiorari proceedings, the authority to review perceived errors of the trial court in the exercise of its judgment and discretion, which are correctible only by appeal by writ of error. Consequently, the decision of the CA acquitting respondent Almuete of the crime charged is a nullity. If a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make a particular judgment is akin to lack of subject- matter jurisdiction. In this case, the CA is authorized to entertain and resolve only errors of jurisdiction and not errors of judgment. A void judgment has no legal and binding effect, force or efficacy for any purpose. In contemplation of law, it is non-existent. It cannot impair or create rights; nor can any right be based on it. Thus, respondent Almuete cannot base his claim of double jeopardy on the appellate courts jurisdiction.[30] IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Resolutions of the Sandiganbayan are NULLIFIED. The records are remanded to the Sandiganbayan for further proceedings. No costs. SO ORDERED. [G.R. No. 134744. January 16, 2001] GIAN PAULO VILLAFLOR, petitioner, VIVAR y GOZON, respondent. DECISION PANGANIBAN, J.: The absence of a preliminary investigation does not impair the validity of an information or render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information. Instead of dismissing the information, the court should hold the proceedings in abeyance and order the public prosecutor to conduct a preliminary investigation. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the Orders issued by the Regional Trial Court (RTC) of Muntinlupa City (Branch 276) in Civil Case No. 97-134.[1] Dated January 20, 1998,[2] the first Order granted the Motion to Quash the Informations and ordered the dismissal of the two criminal cases. The second Order dated July 6, 1998, denied the Motion for Reconsideration. The Facts Culled from the records and the pleadings of the parties are the following undisputed facts. An Information[3] for slight physical injuries, docketed as Criminal Case No. 23365, was filed against Respondent Dindo Vivar on February 7, 1997. The case stemmed from the alleged mauling of Petitioner Gian Paulo Villaflor by respondent around 1:00 a.m. on January 27, 1997 outside the Fat Tuesday Bar at the Ayala Alabang Town Center, Muntinlupa City. After the severe beating he took from respondent, petitioner decided to leave the premises together with a friend who was in the restroom when the mauling incident took place. On his way out, petitioner again met respondent who told him, Sa susunod gagamitin ko na itong baril ko[4] (Next time, I will use my gun on you). When the injuries sustained by petitioner turned out to be more serious than they had appeared at first, an Information[5] for serious physical injuries, vs. DINDO

WHEREFORE, it is most respectfully prayed of this Honorable Court that the Motion for Reinvestigation and/or Motion to Quash be granted and in the interim, an order for suspension of proceedings be issued during the pendency thereof. Other reliefs and equitable under the premises are likewise prayed for.
[24]

And yet, the SB acquitted the respondent. It is basic that the dismissal of a case is different from the acquittal of the accused therein. Except in a dismissal of the case based on a Demurrer to Evidence filed by the accused, or for violation of the right of the accused to a speedy trial, the dismissal of a criminal case will not result in the acquittal of the said accused. As fully explained by the Court in People vs. Salico:[25] This argument or reasoning is predicated on a confusion of the legal concepts of dismissal and acquittal. Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendants guilt is beyond a reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissal terminates the proceeding, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. The only case in which the word dismissal is commonly but not correctly used, instead of the proper term acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond a reasonable doubt that the defendant is guilty; for in such case the dismissal is in reality an acquittal because the case is decided on the merits. If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted before the court of competent jurisdiction; and it is elemental that in such case, the defendant may again be prosecuted for the same offense before a court of competent jurisdiction.[26] By its precipitate and patently illegal acts, the SB deprived the petitioner of its right to due process, an aberration that should not be countenanced. The assailed Resolutions of the SB are, thus, null and void. We reiterate our pronouncement in Paulin vs. Gimenez:[27]

docketed as Criminal Case No. 23787, was filed against respondent. earlier charge of slight physical injuries was withdrawn.
[7]

[6]

The

Should respondents entry of plea in the [grave] threats case and posting of cash bond in the serious physical injuries case be considered a waiver of his right, if any, to preliminary investigation? The Courts Ruling The Petition is meritorious. First Issue: Lack of Preliminary Investigation Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for [17] trial. A component part of due process in criminal justice, preliminary investigation is a statutory and substantive right accorded to the accused before trial. To deny their claim to a preliminary investigation would be to deprive them of the full measure of their right to due process.[18] However, the absence of a preliminary investigation does not impair the [19] validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the [20] information. The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a [21] preliminary investigation. Hence, the RTC in this case erred when it dismissed the two criminal cases for serious physical injuries (Criminal Case No. 23787) and grave threats (Criminal Case No. 23728) on the ground that the public prosecutor had failed to conduct a preliminary investigation. Furthermore, we do not agree that a preliminary investigation was not conducted. In fact, a preliminary investigation for slight physical injuries was made by the assistant city prosecutor of Muntinlupa City. The said Information was, however, amended when petitioners injuries turned out to be more serious and did not heal within the period specified in the Revised Penal Code. We believe that a new preliminary investigation cannot be demanded by respondent. This is because the change made by the public prosecutor was only a formal amendment.[22] The filing of the Amended Information, without a new preliminary investigation, did not violate the right of respondent to be protected from a hasty, malicious and oppressive prosecution; an open and public accusation of a crime; or from the trouble, the expenses and the anxiety of a public trial. The Amended Information could not have come as a surprise to him for the simple and obvious reason that it charged essentially the same offense as that under the original Information. Moreover, if the original charge was related to the amended one, such that an inquiry would elicit substantially the same facts, then a new preliminary investigation was not necessary.[23] Second Issue: Motion to Quash As previously stated, the absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information.[24] Section 3, Rule 117 of the Revised Rules of Criminal Procedure, provides the grounds on which an accused can move to quash the complaint or information. These are: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged (c) the court trying the case has no jurisdiction over the person of the accused; (d) the officer who filed the information had no authority to do so; (e) the information does not conform substantially to the prescribed form; (f) more than one offense is charged, except in those cases in which existing laws prescribe a single punishment for various offenses; (g) the criminal action or liability has been extinguished; (h) the information contains averments which, if true, would constitute a legal excuse or justification; and (i) the accused has been previously convicted or is in jeopardy of being convicted or acquitted of the offense charged.[25] Nowhere in the above-mentioned section is there any mention of a lack of a preliminary investigation as a ground for a motion to quash. Moreover, such motion is a prohibited pleading under Section 19 of the Revised Rules on Summary Procedure. In the present case, the RTC therefore erred in granting herein respondents Motion to Quash Furthermore, we stress that the failure of the accused to assert any ground for a motion to quash before arraignment, either because he had not filed the motion or had failed to allege the grounds therefor, shall be deemed a waiver of such grounds.[26] In this case, he waived his right to file such motion when he pleaded not guilty to the charge of grave threats. In view of the foregoing, we find no more need to resolve the other points raised by petitioner. WHEREFORE, the Petition is GRANTED, and the assailed Orders of the Regional Trail Court of Muntinlupa City are REVERSED. No costs. SO ORDERED.

At the same time, another Information for grave threats, docketed as Criminal Case No. 23728,[8] was filed against respondent on March 17, 1997. On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal [9] Case No. 23787 (for serious physical injuries). Instead of filing a counteraffidavit as required by the trial court, he filed on April 21, 1997, a Motion to Quash the Information in Criminal Case No. 23728 (for grave threats). He contended that the threat, having been made in connection with the charge of serious physical injuries, should have been absorbed by the latter. Thus, he concluded, Criminal Case No. 23728 should be dismissed, as the trial court did [10] not acquire jurisdiction over it. In an Order dated April 28, 1997 in Criminal Case No. 23728, the Metropolitan Trial Court (MTC) denied the Motion to Quash, as follows: For consideration is a motion to quash filed by accused counsel. Considering that jurisdiction is conferred by law and the case filed is grave threats which is within the jurisdiction of this Court and considering further that a motion to quash is a prohibited [pleading] under the rule on summary procedure, the motion to quash filed by accused counsel is DENIED. WHEREFORE, the motion to quash filed by accused counsel is hereby DENIED and let the arraignment of the accused be set on June 25, 1997 at 2:00 oclock in the afternoon.[11] The Motion for Reconsideration filed by respondent was denied by the [12] MTC on June 17, 1997. Thus, he was duly arraigned in Criminal Case No. 23728 (for grave threats), and he pleaded not guilty. On July 18, 1997, respondent filed a Petition for Certiorari with the RTC of Muntinlupa City. This was docketed as Civil Case No. 97-134. On January 20, 1998, after the parties submitted their respective Memoranda, the RTC issued the assailed Order which reads as follows: The Judicial Officer appears to have acted with grave abuse of discretion amounting to lack of jurisdiction in declaring and denying the MOTION TO QUASH as a prohibitive motion. The same should have been treated and [should have] proceeded under the regular rules of procedure. The MOTION TO QUASH THE INFORMATIONS filed without preliminary investigation is therefore granted and these cases should have been dismissed. Let this Petition be returned to the Metropolitan Trial Court, Branch 80Muntinlupa City for appropriate action.[13] The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for Reconsideration, as follows: Submitted for resolution is the unopposed Motion for Reconsideration filed by Private Respondent. This Court agrees with the contention of private respondent that the Motion to Quash filed by petitioner in the inferior court is a prohibited pleading under Rules on Summary Procedure so that its denial is tenable. However, it would appear that the criminal charges were filed without the preliminary investigation having been conducted by the Prosecutors Office. Although preliminary investigation in cases triable by inferior courts is not a matter of right, the provision of Sec. 51 par 3(a) of Republic Act 7926 entitled An Act Converting the Municipality of Muntinlupa Into a Highly Urbanized City To Be Known as the City of Muntinlupa provides that the city prosecutor shall conduct preliminary investigations of ALL crimes, even violations of city ordinances. This Act amended the Rules on Criminal Procedure. Since this procedure was not taken against accused, the Order dated January 20, 1998 stands. The Motion for Reconsideration is therefore denied.[14] Hence, this Petition.[15] The Issues Petitioner submits the following issues for our consideration:[16] I Can the court motu propio order the dismissal of the two (2) criminal cases for serious physical injuries and grave threats on the ground that the public prosecutor failed to conduct a preliminary investigation? II Should the failure of the public prosecutor to conduct a preliminary investigation be considered a ground to quash the criminal informations for serious physical injuries and grave threats filed against the accusedrespondent? III