Section 3.

PROCEDURE

[G.R. No. 153176. March 29, 2004]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ZEIDA AURORA B.

GARFIN, In her capacity as Presiding Judge of RTC, Branch 19,
of the City of Naga and SERAFIN SABALLEGUE, respondents.
DECISION
PUNO, J:

For determination in this petition is a question in procedural law - - whether an information filed by a state prosecutor without the prior written
authority or approval of the city or provincial prosecutor or chief state
prosecutor should be dismissed after the accused has entered his plea under
the information.
1. petition for certiorari and mandamus under Rule 65 of the Revised
Rules of Court, seeking to declare as null and void the Orders issued
by the Regional Trial Court.
2. SABALLEGUE was charged with violation of Section 22(a) in relation to
Sections 19(b) and 28(e) of Republic Act No. 8282, otherwise known as
the Social Security Act, in an information which reads:
3. He refuse and fail and continuously refuse and fail to remit the premiums due
for his employee to the SSS in the amount of (P6,533.00.
4. The information contains a certification signed by State Prosecutor
Romulo SJ. Tolentino which states: the filing of the information is with the
prior authority and approval of the Regional State Prosecutor.
[4]

5. The case was raffled to Branch 19 of the Regional Trial Court of Naga
City presided by Hon. Garfin.
6. Saballegue pleaded not guilty to the charge and the case was set for
pre-trial. Three days thereafter, the accused filed a motion to
dismiss on the ground that the information was filed without the prior
[5]

[6]

written authority or approval of the city prosecutor as required under

Section 4, Rule 112 of the Revised Rules of Court.
[7]

The People, through State Prosecutor Tolentino, filed an opposition,

against which the accused filed a rejoinder. The People filed a reply to the
rejoinder on December 21, 2001. A rejoinder to the reply was filed by the
accused on January 21, 2002.
[8]

[9]

[10]

[11]

After considering the arguments raised, the trial court granted the motion
to dismiss in its first questioned Order dated February 26, 2002, to wit:
After considering the respective arguments raised by the parties, the Court believes
and so resolves that the Information has not been filed in accordance with Section 4,
par. 3 of Rule 112 of the 2000 Rules on Criminal Procedure, thus:
Rule 112, Section 4 x x x x x x
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.
Expresio unius est exclusio alterius.
The Information will readily show that it has not complied with this rule as it has not
been approved by the City Prosecutor.
This Court holds that the defendants plea to the Information is not a waiver to file a
motion to dismiss or to quash on the ground of lack of jurisdiction. By express
provision of the rules and by a long line of decisions, questions of want of jurisdiction
may be raised at any stage of the proceedings (People vs. Eduarte, 182 SCRA 750).
The Supreme Court in Villa vs. Ibaez (88 Phil 402) dwelt on lack of authority of the
officer who filed the information and on jurisdiction at the same time, pertinent
portions run as follows:
The defendant had pleaded to the information before he filed a motion to quash, and it
is contended that by his plea he waived all objections to the information. The
contention is correct as far as formal objections to the pleadings are concerned. But by

clear implication, if not by express provision of section 10 of Rule 113 of the Rules of
Court, and by a long line of uniform decisions, questions of want of jurisdiction may
be raised at any stage of the proceedings. Now, the objection to the respondents
actuations goes to the very foundations of jurisdiction. It is a valid information signed
by a competent officer which, among other requisites, confers jurisdiction on the court
over the person of the accused and the subject matter of the accusation. In consonance
with this view, an infirmity of the nature noted in the information cannot be cured by
silence, acquiescence, or even by express consent.
Prosecutor Tolentino also contends that having been duly designated to assist the City
Prosecutor in the investigation and prosecution of all SSS cases by the Regional State
prosecutor as alter ego of the Secretary of Justice in Region V, then that authority may
be given to other than the City Prosecutor. The Court finds this contention to be
devoid of merit. The Regional State Prosecutor is not the alter ego of the Secretary of
Justice but a mere subordinate official and if ever the former files cases, it is by virtue
of a delegated authority by the Secretary of Justice. Potestas delegada non potesta
delegare (sic) what has been delegated cannot be redelegated.
In his opposition, the state prosecutor also attached a memorandum dated June 22,
2001 by Regional State Prosecutor Santiago M. Turingan addressed to Provincial
Prosecutor and City Prosecutors of Region V directing them to inhibit and to append
the following NOTATION after the certification in the Information for filing.
NOTATION: The herein City/Provincial Prosecutor is inhibiting from this case and
the Special Prosecution Team on SSS Cases in Region V is authorized to dispose of
the case without my approval in view of the request for inhibition of the SSS Regional
Manager as granted by the Regional State Prosecutor.
A perusal of the Information, however, would readily show that nowhere in the
Information has the City Prosecutor of Naga City appended the above-quoted
notation/inhibition. At most, the authority of the special prosecutor is only for the
conduct of preliminary investigations and the prosecution of cases after they are filed.
The Court, however, believes that the filing of this Information must be in conformity
with the Rules on Criminal Procedure, particularly Section 4 of Rule 112.
WHEREFORE, premises considered and for lack of jurisdiction, the Court hereby
resolves to DISMISS this case without pronouncement as to cost.

SO ORDERED.

[12]

A motion for reconsideration was filed by the People contending that as a

special prosecutor designated by the regional state prosecutor to handle SSS
cases within Region V, State Prosecutor Tolentino is authorized to file the
information involving violations of the SSS law without need of prior approval
from the city prosecutor. Letters of commendation from Chief State
Prosecutor Jovencito Zuo and Secretary Hernando Perez were offered as
proof to show that State Prosecutor Tolentinos authority to file the information
was recognized. In response, the defense pointed out in its opposition that the
motion for reconsideration lacked a notice of hearing, hence it is pro forma or
a mere scrap of paper.
[13]

[14]

[15]

[16]

On April 3, 2002, respondent judge issued the second questioned Order

which reads:
Acting upon the Motion for Reconsideration filed by State Prosecutor Romulo SJ.
Tolentino, Special Prosecutor on SSS cases in Region V, and it appearing that the
same has failed to comply with the requirement of notice prescribed in Sections 4 and
5, Rule 15 of the Rules of Court, the same is hereby DENIED for being a mere scrap
of paper.
SO ORDERED.

[17]

Hence, this petition by the People through Regional State Prosecutor

Santiago Turingan and State Prosecutor Romulo SJ. Tolentino. Petitioner
attributes grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of respondent judge, viz:
[18]

1. RESPONDENT JUDGE DISMISSED THE INFORMATION

REQUIRED SUPPORTING FACTUAL AND LEGAL BASES;

WITHOUT THE

2. RESPONDENT JUDGE DELIBERATELY AND CAPRICIOUSLY IGNORED THE

PRESUMPTION OF REGULARITY IN FAVOR OF THE PROSECUTION WITHOUT
THE REQUIRED SUFFICIENCY OF REBUTTAL EVIDENCE. THE WORD MAY IN
SEC. 4, RULE 112 OF THE RULES OF COURT IS NOT MANDATORY;

3. RESPONDENT JUDGE COMMITTED GRAVE ERROR IN DELIBERATELY

IGNORING THE JUDICIALLY KNOWN INHIBITION OF THE CITY PROSECUTOR
AND THE SETTLED JURISPRUDENCE ON THE MATTER;
4. RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION IN INTERFERING
WITH THE PURELY EXECUTIVE FUNCTION OF FILING AN INFORMATION BY
RULING ON THE AUTHORITY OF THE FILING OFFICER TO FILE THE
INFORMATION.

The Office of the Solicitor General (OSG) filed its comment in compliance
with this Courts Resolution dated September 23, 2002. It opines that the
dismissal of the information is mandated under Section 4, Rule 112 of the
Rules of Criminal Procedure.
[19]

[20]

Private respondent contends that: 1) the instant petition was filed out of
time; 2) the special State Prosecutor is only authorized to conduct preliminary
investigation and prosecution of SSS cases and not to sign the information;
and 3) the City Prosecutor did not expressly inhibit himself from handling SSS
cases nor signing the information.
[21]

We shall first resolve the procedural issues. Respondent contends that the
motion for reconsideration filed on April 1, 2002 is late because it was filed
eighteen days after March 14, 2002, the date when petitioner received the first
questioned order. Respondent has overlooked that the 15th day after March 14
is a Good Friday. Hence, petitioners last day to file the motion for
reconsideration was on the next working day after Good Friday, April 1.
[22]

Next, respondent argues that having been considered as a mere scrap of

paper, the motion for reconsideration of the petitioner did not toll the running
of the reglementary period. Respondent, however, erroneously assumes that
the present case is an appeal by certiorari under Rule 45. As stated at the
outset, this is an original petition for certiorari and mandamus under Rule 65.
Sec. 2, Rule 37 of the Rules of Court is clear. It provides that (a) pro forma
motion for new trial or reconsideration shall not toll the reglementary
period of appeal. (emphases supplied) Hence, the same provision has no
application in the case at bar.

The reckoning date is the receipt of the second questioned Order and not
the receipt of the first. Section 4, Rule 65, as amended by En Banc Resolution
A.M. No. 00-2-03-SC, September 1, 2000, provides, viz:
Sec. 4. When and where petition filed.-- The petition may be filed not later than sixty
(60) days from notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60)- day period shall be counted from notice of the denial of said motion.
xxxxxxxxx
As shown by the records, petitioner received the first questioned order
dated February 26, 2002 on March 14, 2002. A motion for reconsideration
was timely filed on April 1, 2002 which was dismissed for lack of notice of
hearing in an Order dated April 3, 2002. This second questioned order was
received by petitioner on April 11, 2002. A motion for extension of time to file
a petition for review on certiorari was filed on April 18, 2002. A motion for
leave to file and admit the instant petition for certiorari andmandamus was
filed on May 29, 2002. Having been filed within the reglementary period,
petitioners motion for leave to file the instant petition was granted in this
Courts Resolution dated July 15, 2002.
[23]

[24]

[25]

[26]

[27]

[28]

[29]

We now come to the other issue: whether the prior written authority and
approval of the city or provincial prosecutor or chief state prosecutor is
necessary in filing the information at bar.
Petitioner takes the unbending view that the approval of the city or
provincial prosecutor is no longer required. It is contended that the Regional
State Prosecutor has already directed the city or provincial prosecutor to
inhibit from handling SSS cases. Petitioner cites the letter of Regional State
Prosecutor Santiago M. Turingan to SSS Regional Director in Naga City dated
June 6, 1997 and copies of Regional Orders No. 97-024-A and 2001033 dated July 14, 1997 and September 28, 2001, respectively, showing the
designation of State Prosecutor Tolentino as special prosecutor for SSS cases
in Region V. Petitioner relies on Galvez, et al. v. Court of Appeals, et al.
and Sanchez v. Demetriou, et al. to prop up its contention that given the
[30]

[31]

[32]

[33]

[34]

[35]

designation of State Prosecutor Tolentino, the city prosecutor need not

participate in the filing and prosecution of the information in the case at bar.
We disagree. Under Presidential Decree No. 1275, the powers of a
Regional State Prosecutor are as follows:
Sec. 8. The Regional State Prosecution Office: Functions of Regional State
Prosecutor. - The Regional State Prosecutor shall, under the control of the Secretary
of Justice, have the following functions:
a) Implement policies, plans, programs, memoranda, orders, circulars and rules and
regulations of the Department of Justice relative to the investigation and prosecution
of criminal cases in his region.
b) Exercise immediate administrative supervision over all provincial and city
fiscals and other prosecuting officers of provinces and cities comprised within his
region.
c) Prosecute any case arising within the region.
d) With respect to his regional office and the offices of the provincial and city fiscals
within his region, he shall:
1) Appoint such member of subordinate officers and employees as may be necessary;
and approve transfers of subordinate personnel within the jurisdiction of the regional
office.
2) Investigate administrative complaints against fiscals and other prosecuting officers
within his region and submit his recommendation thereon to the Secretary of Justice
who shall, after review thereof, submit the appropriate recommendation to the Office
of the President: Provided, that where the Secretary of Justice finds insufficient
grounds for the filing of charges, he may render a decision of dismissal thereof.
3) Investigate administrative complaints against subordinate personnel of the region
and submit his recommendations thereon to the Secretary of Justice who shall have
the authority to render decision thereon. (emphases supplied)

The power of administrative supervision is limited to the authority of the

department or its equivalent to generally oversee the operations of such
agencies and to insure that they are managed effectively, efficiently and
economically but without interference with day-to-day activities; or 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; to take such action as may be
necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of maladministration; and to
review and pass upon budget proposals of such agencies but may not
increase or add to them. This is distinguished from the power of supervision
and control which includes the authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve,
reverse or modify acts and decisions of subordinate officials or units;
determine priorities in the execution of plans and programs; and prescribe
standards, guidelines, plans and programs.
[36]

[37]

The Regional State Prosecutor is clearly vested only with the power of
administrative supervision. As administrative supervisor, he has no power to
direct the city and provincial prosecutors to inhibit from handling certain cases.
At most, he can request for their inhibition. Hence, the said directive of the
regional state prosecutor to the city and provincial prosecutors is questionable
to say the least.
Petitioner cannot lean on the cases of Galvez and Sanchez. In those
cases, the special prosecutors were acting under the directive of the
Secretary of Justice. They were appointed in accordance with law. Nowhere in
P.D. No. 1275 is the regional state prosecutor granted the power to appoint a
special prosecutor armed with the authority to file an information without the
prior written authority or approval of the city or provincial prosecutor or chief
state prosecutor. P.D. No. 1275 provides the manner by which special
prosecutors are appointed, to wit:
Sec. 15. Special Counsels. - Whenever the exigencies of the service require the
creation of positions of additional counsel to assist provincial and city fiscals in
the discharge of their duties, positions of Special Counsels may be created by any

province or city, subject to the approval of the Secretary of Justice, and with
salaries chargeable against provincial or city funds. The Secretary of Justice shall
appoint said Special Counsels, upon recommendation of the provincial or city
fiscal and regional state prosecutors concerned, either on permanent or
temporary basis.
Special Counsel shall be appointed from members of the bar and shall be allowed not
more than the salary rate provided in this Decree for the lowest rank or grade of
assistant fiscal in the province or city where assigned. (emphases supplied)
Under Department Order No. 318, Defining the authority, duties and
responsibilities of regional state prosecutors, then Acting Secretary of Justice
Silvestre H. Bello III ordered the appointed regional state prosecutors (which
included Regional State Prosecutor Turingan for Region V) to, among others,
(i)nvestigate and/or prosecute, upon the directive of the Secretary of
Justice, specific criminal cases filed within the region. (emphasis supplied)
[38]

In the case at bar, there is no pretense that a directive was issued by the
Secretary of Justice to Regional State Prosecutor Turingan to investigate
and/or prosecute SSS cases filed within his territorial jurisdiction. A bare
reading of the alleged letter of commendation by then Secretary Hernando
Perez would show that it does not amount to a directive or even a recognition
of this authority. In fact, while the letter of Secretary Perez commends the
efforts of Regional State Prosecutor Turingan in successfully prosecuting SSS
cases, it also negates his authority to prosecute them. Secretary Perez called
the Regional State Prosecutors attention to DOJ Circular No. 27, series of
2001, which states that all important cases of the SSS should be referred to
the Office of the Government Corporate Counsel. Thus, Regional State
Prosecutor Turingan cannot be considered a special prosecutor within the
meaning of the law.
[39]

Petitioner argues that the word may is permissive. Hence, there are cases
when prior written approval is not required, and this is one such instance. This
is too simplistic an interpretation. Whether the word may is mandatory or
directory depends on the context of its use. We agree with the OSG that the
use of the permissive word may should be read together with the other
provisions in the same section of the Rule. The paragraph immediately

preceding the quoted provision shows that the word may is mandatory. It
states:
Sec. 4, Rule 112. x x x
Within five (5) days from his resolution, he (investigating prosecutor) shall forward
the record of the case to the provincial or city prosecutor or chief state prosecutor, or
to the Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform
the parties of such action. (emphasis supplied)
Having settled that the prior authority and approval of the city, provincial or
chief state prosecutor should have been obtained, we shall now resolve the
more important issue: whether the lack of prior written approval of the city,
provincial or chief state prosecutor in the filing of an information is a defect in
the information that is waived if not raised as an objection before arraignment.
We hold that it is not.
The provisions in the 2000 Revised Rules of Criminal Procedure that
demand illumination are Sections 3 and 9 of Rule 117 in relation to paragraph
3, Section 4 of Rule 112, to wit:
Rule 117, Section 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
(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 his express
consent.
xxx xxx xxx
Section 9. Failure to move to quash or to allege any ground therefor.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 said motion, shall be deemed a waiver of any objections except those based
on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this
Rule. (emphasis supplied)
Rule 112, Section 4, paragraph 3 provides, viz:
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy. (emphasis
supplied)
Private respondent and the OSG take the position that the lack of prior
authority or approval by the city or provincial prosecutor or chief state
prosecutor is an infirmity in the information that prevented the court from
acquiring jurisdiction over the case. Since lack of jurisdiction is a defect that
may be raised as an objection anytime even after arraignment, the respondent
judge did not err in granting the motion to dismiss based on this ground. As
basis, they cite the case of Villa v. Ibaez, et al. where we held, viz:
[40]

The defendant had pleaded to an information before he filed a motion to quash, and it
is contended that by his plea he waived all objections to the informations. The
contention is correct as far as formal objections to the pleadings are concerned. But by
clear implication, if not by express provision of section 10 of Rule 113 of the Rules of
Court (now Section 9 of Rule 117), and by a long line of uniform decisions, questions

of want of jurisdiction may be raised at any stage of the proceeding. Now, the
objection to the respondents actuations goes to the very foundation of the
jurisdiction. It is a valid information signed by a competent officer which, among
other requisites, confers jurisdiction on the court over the person of the accused
and the subject matter of the accusation. In consonance with this view, an
infirmity in the information cannot be cured by silence, acquiescence, or even by
express consent. (emphasis supplied)
[41]

The case of Villa is authority for the principle that lack of authority on the
part of the filing officer prevents the court from acquiring jurisdiction over the
case. Jurisdiction over the subject matter is conferred by law while jurisdiction
over the case is invested by the act of plaintiff and attaches upon the filing of
the complaint or information. Hence, while a court may have jurisdiction over
the subject matter, like a violation of the SSS Law, it does not acquire
jurisdiction over the case itself until its jurisdiction is invoked with the filing of
the information.
[42]

In the United States, an information has been held as a jurisdictional

requirement upon which a defendant stands trial. Thus, it has been ruled that
in the absence of probable cause, the court lacks jurisdiction to try the criminal
offense. In our jurisdiction, we have similarly held that:
[43]

While the choice of the court where to bring an action, where there are two or more
courts having concurrent jurisdiction thereon, is a matter of procedure and not
jurisdiction, as suggested by appellant, the moment such choice has been exercised,
the matter becomes jurisdictional. Such choice is deemed made when the proper
complaint or information is filed with the court having jurisdiction over the
crime, and said court acquires jurisdiction over the person of the defendant,
from which time the right and power of the court to try the accused
attaches. (citations omitted) It is not for the defendant to exercise that choice,
which is lodged upon those who may validly file or subscribe to the complaint or
information under sections 2 and 3 of Rule 106 of the Rules of Court. (emphasis
supplied)
[44]

A closer look at Villa would be useful in resolving the issue at hand. In that
case, Atty. Abelardo Subido, Chief of the Division of Investigation in the Office
of the Mayor of Manila, was appointed by the Secretary of Justice as special

counsel to assist the City Fiscal of Manila in the cases involving city
government officials or employees. Pursuant to his appointment, Atty. Subido
filed an information against Pedro Villa for falsification of a payroll. Atty.
Subidos authority to file the information was challenged on the ground that he
was disqualified for appointment under Section 1686 of the Revised
Administrative Code, as amended by Section 4 of Commonwealth Act No.
144, to wit:
SEC. 1686. Additional counsel to assist fiscal. The Secretary of Justice may appoint
any lawyer, being either a subordinate from his office or a competent person not in the
public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of
his duties, and with the same authority therein as might be exercised by the Attorney
General or Solicitor General.
[45]

We held, viz:
Appointments by the Secretary of Justice in virtue of the foregoing provisions of the
Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et
al., 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et al., (47 Official
Gazette, 5092). But in those cases, the appointees were officials or employees in one
or another of the bureaus or offices under the Department of Justice, and were rightly
considered subordinates in the office of the Secretary of Justice within the meaning of
section 1686, ante.
The case at bar does not come within the rationale of the above decisions. Attorney
Subido is a regular officer or employee in the Department of Interior, more
particularly in the City Mayors office. For this reason, he belongs to the class of
persons disqualified for appointment to the post of special counsel.
That to be eligible as special counsel to aid a fiscal the appointee must be either an
employee or officer in the Department of Justice is so manifest from a bare reading of
section 1686 of the Revised Administrative Code as to preclude construction. And the
limitation of the range of choice in the appointment or designation is not without
reason.
The obvious reason is to have appointed only lawyers over whom the Secretary of
Justice can exercise exclusive and absolute power of supervision. An appointee from a

branch of the government outside the Department of Justice would owe obedience to,
and be subject to orders by, mutually independent superiors having, possibly,
antagonistic interests. Referring particularly to the case at hand for illustration,
Attorney Subido could be recalled or his time and attention be required elsewhere by
the Secretary of Interior or the City Mayor while he was discharging his duties as
public prosecutor, and the Secretary of Justice would be helpless to stop such recall or
interference. An eventuality or state of affairs so undesirable, not to say detrimental to
the public service and specially the administration of justice, the Legislature wisely
intended to avoid.
The application of the 1951 Villa ruling is not confined to instances where
the person who filed the information is disqualified from being a special
prosecutor under Section 1686 of the Revised Administrative Code, as
amended, but has been extended to various cases where the information was
filed by an unauthorized officer as in the case at bar. InCruz, Jr. v.
Sandiganbayan, et al., the Court held that it is a fundamental principle that
when on its face the information is null and void for lack of authority to file the
same, it cannot be cured nor resurrected by amendment. In that case, the
Presidential Commission on Good Government (PCGG) conducted an
investigation and filed an information with the Sandiganbayan against
petitioner Roman Cruz, Jr. charging him with graft and corruption. The
petitioner sought to quash the information on the ground that the crime
charged did not constitute a Marcos crony related crime over which the PCGG
had authority to investigate and file an information. The Court found that the
crime alleged in the information was not among those which PCGG was
authorized to investigate under Executive Orders No. 1 and 14 of then
President Corazon Aquino and ruled that the information was null and void. Of
similar import is Romualdez v. Sandiganbayan, et al. where we ruled that
the information having been filed by an unauthorized party (the PCGG), the
information was fatally flawed. We noted that this defect is not a mere
remediable defect of form, but a defect that could not be cured.
[46]

[47]

In Cudia v. Court of Appeals, et al., we also reiterated the Villa

ruling. The accused in that case was apprehended in Mabalacat, Pampanga
for illegal possession of firearms and was brought to Angeles City where the
headquarters of the arresting officers was located. The City Prosecutor of
[48]

Angeles City filed an information in the Regional Trial Court of Angeles City.
We invalidated the information filed by the City Prosecutor because he had no
territorial jurisdiction, as the offense was committed in Mabalacat, Pampanga
and his territorial jurisdiction was only in Angeles City. We held that an
information, when required by law to be filed by a public prosecuting officer,
cannot be filed by another. Otherwise, the court does not acquire jurisdiction.
It is a valid information signed by a competent officer which, among other
requisites, confers jurisdiction on the court over the person of the accused and
the subject matter thereof. The accuseds plea to an information may be a
waiver of all formal objections to the said information but not when there is
want of jurisdiction. Questions relating to lack of jurisdiction may be raised at
any stage of the proceeding. An infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured by silence, acquiescence, or
even by express consent.
[49]

[50]

[51]

Despite modifications of the provisions on unauthorized filing of

information contained in the 1940 Rules of Criminal Procedure under
which Villa was decided, the 1951 Villa ruling continues to be the prevailing
case law on the matter.
[52]

The 1940 Rules of Court provided in Rule 113, Section 10 that, if the
defendant fails to move to quash the complaint or information before he
pleads thereto, he shall be taken to have waived all objections which are
grounds for a motion to quash except (1) when the complaint or information
does not charge an offense or (2) the court is without jurisdiction of the
same. (emphasis ours) Among the enumerated grounds for a motion to quash
under Section 2 of the same Rule was (t)hat the fiscal has no authority to file
the information. With only the above two exceptions provided by the 1940
Rules, the Court nevertheless made the Villa ruling that if the filing officer
lacks authority to file the information, jurisdiction is not conferred on the court
and this infirmity cannot be cured by silence or waiver, acquiescence, or even
by express consent.
The 1940 Rules of Court was amended in 1964. With only minimal
changes introduced, the 1964 Rules of Court contained provisions on
unauthorized filing of information similar to the above provisions of the 1940
Rules.
[53]

Then came the 1985 Rules of Criminal Procedure. Lack of authority of the
officer who filed the information was also a ground for a motion to quash
under these rules. The 1985 Rules also provided for waiver of the grounds for
a motion to quash under Rule 117, Section 8, but enumerated the following
exceptions to the waiver: (a) the facts charged do not constitute an offense;
(b) the court trying the case has no jurisdiction over the offense charged or the
person of the accused; (c) the criminal action or liability has been
extinguished; and (d) the accused has been previously convicted or in
jeopardy of being convicted, or acquitted of the offense charged. Apparently,
the want of jurisdiction under the 1985 Rules refers to jurisdiction over the
offense and the person, and not over the case as in Villa where the court did
not acquire jurisdiction over the case for lack of authority of the officer who
filed the information. Still, despite the enumeration, the Court continued to
apply the Villa ruling as shown in the afore-cited Cruz and Cudia cases.
The 1985 Rules was amended in 2000. The 2000 Revised Rules of
Criminal Procedure also provide for lack of authority of the filing officer as
among the grounds for a motion to quash and the waiver of these grounds.
Similar to the 1985 Rules, the Revised Rules enumerate the exceptions from
the waiver, namely: (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 criminal action or liability has been extinguished; and (d) that the
accused has been previously convicted or acquitted of the offense charged, or
the case against him was dismissed or otherwise terminated without his
express consent. Under the regime of the 2000 Revised Rules, we reiterated
the Villa ruling in the above-cited Romualdez case. With the enumeration of
the four exceptions, which was almost a replica of the enumeration in the
1985 Rules, the 2000 Rules did not intend to abandon Villa. The Villa
ruling subsisted alongside the enumerated exceptions under the 1985 Rules,
and it remains to do so under the enumerated exceptions under the 2000
Rules. Neither the Rationale of the 2000 Revised Rules of Criminal Procedure
nor the Minutes of the Meeting of the Committee on the Revision of the Rules
of Court evinces any intent to abandon the doctrine enunciated in Villa.
In sum, we hold that, in the absence of a directive from the Secretary of
Justice designating State Prosecutor Tolentino as Special Prosecutor for SSS

cases or a prior written approval of the information by the provincial or city

prosecutor, the information in Criminal Case No. RTC 2001-0597 was filed by
an officer without authority to file the same. As this infirmity in the information
constitutes a jurisdictional defect that cannot be cured, the respondent judge
did not err in dismissing the case for lack of jurisdiction.
WHEREFORE, premises considered, the petition is DENIED. The
respondent courts orders dated February 26, 2002 and April 3, 2002 are
AFFIRMED. Criminal Case No. RTC 2001-0597 is DISMISSED without
prejudice to the filing of a new information by an authorized officer.
G.R. No. 94595

February 26, 1991

ROMAN CRUZ, JR., petitioner,

vs.
THE HONORABLE SANDIGANBAYAN and the HONORABLE PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT, respondents.
Siguion Reyna, Montecillo & Ongsiangko for petitioner.

GANCAYCO, J.:
The issue in this petition is whether or not the respondent Presidential Commission
on Good Government (PCGG) has the authority to conduct a preliminary
investigation and file the information with the Sandiganbayan for violation of the AntiGraft and Corrupt Practices Act by alleged cronies or associates of former President
Ferdinand E. Marcos.
On January 10, 1989, an information was filed by the PCGG Chairman, Mateo
Caparas, with the Sandiganbayan charging petitioner Roman Cruz, Jr. and certain
other individuals as follows:
That on or about May 16, 1983, in Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, being then the
President and General Manager and the Vice President and Treasurer,
respectively of the Government Service Insurance System (GSIS), a
government financial institution, conspiring and confederating together and
with others who will be charged separately, did then and there, in the
discharge of their official administrative functions, willfully, knowingly and
unlawfully and contrary to Central Bank Rules and Regulations, enter into a

contract with Cor-Asia, a private corporation, whereby GSIS, under the terms
and conditions manifestly and grossly disadvantageous to the GSIS, sold,
transferred and conveyed to said Cor-Asia seven percent (7%) 20-year
Cultural Center of the Philippines (CCP) bonds with a total face value of
ELEVEN MILLION FOUR HUNDRED FORTY THOUSAND TWO HUNDRED
SIXTY-SIX and 20/100 P11,440,266.20) PESOS at about forty (40%) percent
discount or at a lower price of only about SEVEN MILLION TWO HUNDRED
THREE (sic) (P7,203,000.00) PESOS, when said bonds could then be easily
sold, and was in fact eventually sold to COMBANK, a few days thereafter, at
about twelve (12%) percent discount only or at a much higher price of TEN
MILLION FOUR HUNDRED FIFTEEN THOUSAND ONE HUNDRED
(P10,415,100.00) PESOS, thereby giving Cor-Asia unwarranted benefits and
advantages, to the damage and prejudice of the Philippine Government in the
sum of about THREE MILLION TWO HUNDRED TWELVE THOUSAND
(P3,212,000.00) PESOS, Philippine Currency.
1

Said information was filed after a preliminary investigation was conducted by Fiscal
Freddie A. Gomez of the respondent PCGG, based on a complaint, various affidavits
and counter-affidavits and exhibits submitted to him.
On February 2, 1989, petitioner filed a motion to quash the information to which an
opposition was filed by the respondent PCGG and a reply was filed by petitioner. At
the hearing of the motion to quash on March 22, 1989, respondent PCGG informed
the court that it will file an amended information.
On May 29, 1989 respondent PCGG filed an amended information which reads as
follows:
That on or about May 16, 1983, in Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the said accused ROMAN A. CRUZ, a
subordinate and close associate of former President Ferdinand E. Marcos,
being then the President and General Manager of the Government Service
Insurance System (GSIS), a government financial institution and a high
ranking officer of various government corporations by taking undue
advantage of his public office and by using his powers, authority, influence,
connections, or relationship to said former President Ferdinand E. Marcos
and MANUEL S. RODRIGUEZ, Vice President and Treasurer also of GSIS,
conspiring and confederating together and with others who will be charged
separately, did then and there, in the discharge of their official administrative
functions, willfully, knowingly, and unlawfully, and contrary to Central Bank
rules and regulations, enter into a contract with Cor-Asia, a private
corporation, whereby GSIS, under terms and conditions manifestly and
grossly disadvantageous to the GSIS, sold, transferred and conveyed unto
said Cor-Asia seven percent (7%)-20 year Cultural Center of the Philippines
(CCP) bonds with total face value of ELEVEN MILLION FOUR HUNDRED

FORTY THOUSAND TWO HUNDRED SIXTY-SIX and 20/100

(P11,440,266.20) PESOS at about forty (40%) percent discount or at a low
price of only about SEVEN MILLION TWO HUNDRED THREE THOUSAND
(P7,203,000.00) PESOS, when said bonds could then be easily sold, and was
in fact eventually sold to COMBANK, a few days thereafter, at about twelve
(12%) percent discount only or at a much higher price of TEN MILLION FOUR
HUNDRED FIFTEEN THOUSAND ONE HUNDRED (P10,415,100.00)
PESOS, thereby giving Cor-Asia unwarranted benefits and advantages, to the
damage and prejudice of the Philippine Government in the sum of about
THREE MILLION TWO HUNDRED TWELVE THOUSAND P3,212,000.00)
PESOS.
2

Petitioner filed his comment and opposition to the amended information and a
supplementary motion to quash. After a hearing on the matter, on June 16, 1989 the
respondent court issued an order that reads as follows:
A preliminary discussion, between the parties, however, indicated that the
position of the accused Cruz is that, on the face of the complaint and of the
information filed with the PCGG to support that complaint, the "crony related
crime" alleged thereon did not exist and for which reason from the very first
instance, the PCGG did not have the "literal" justification to even entertain the
matter under its enabling enactments. The parties agree that the issue,
therefore, to be presented before the Court is whether or not the complaint,
and the affidavits in support of that complaint, would sustain the proposition,
assuming that these affidavits are duly substantiated, that the crime charged
in the present Information is "crony related crime" for which the PCGG has
adequate authority to investigate and to file an Information on the very first
instance. The Court will not look into the correctness of the determination of
probable cause, that matter being which the exclusive realm of the
investigating office and jurisdiction is conceded to it.
3

An opposition to petitioner's motion was filed by respondent PCGG to which

petitioner filed a reply.
On August 7, 1990 respondent court issued a resolution denying the motion to
quash. A motion for reconsideration filed by petitioner was denied by the respondent
court on May 15, 1990.
Hence, this petition which is predicated on the following grounds:
A
WITH THE EFFECTIVITY OF THE 1987 CONSTITUTION, RESPONDENT
PCGG NO LONGER HAD ANY AUTHORITY TO PROSECUTE CASES,
SUCH JURISDICTION BEING SOLELY VESTED IN THE OFFICE OF THE

OMBUDSMAN; THE PROSECUTING OFFICER BEING WITHOUT

AUTHORITY TO PROSECUTE, ALL PROCEEDINGS THEREAFTER WERE
NULL AND VOID.
B
ASSUMING, ARGUENDO, RESPONDENT PCGG STILL HAD AUTHORITY
TO PROSECUTE THE CASES ENUMERATED IN SECTION 2(A) OF
EXECUTIVE ORDER NO. 1, THE RESPONDENT SANDIGANBAYAN HAD
NO JURISDICTION OVER HEREIN PETITIONER BY REASON OF A
JURISDICTIONALLY DEFECTIVE INFORMATION AND CONSEQUENTLY
THE AMENDED INFORMATION WHICH ADDED THE JURISDICTIONAL
MATTERS COULD NOT BE ADMITTED WITHOUT PRELIMINARY
INVESTIGATION ON SUCH MATTERS, EXCEPT IN VIOLATION OF
PETITIONER'S SUBSTANTIVE RIGHTS AND RIGHT TO DUE PROCESS.
C
ASSUMING, ARGUENDO, THAT RESPONDENT PCGG HAD
JURISDICTION TO FILE INFORMATIONS FOR ACTS FALLING UNDER
SECTION 2(A) OF E.O. NO. 1, THE RESPONDENT SANDIGANBAYAN
ACTED IN GRAVE ABUSE OF DISCRETION IN NOT RULING THAT UPON
THE EVIDENCE IT REQUIRED TO BE PLACED BEFORE IT, THERE WAS
NO PRIMA FACIE CASE FOR THE FILING OF THE AMENDED
INFORMATION, THE AVERMENTS WHICH PURPORT TO MAKE A CRONY
CASE BEING FALSE, THAN (sic) AND NOT ESTABLISHED BY THE
RECORD OF THE PRELIMINARY INVESTIGATION.
4

The question raised in this petition has been resolved by this Court in Eduardo M.
Cojuangco, Jr. vs. Presidential Commission on Good Government, et al., where the
Court made the following disquisition:
5

However, this exclusive jurisdiction of the Tanodbayan to conduct preliminary

investigation of said cases was modified by Executive Order No. 1 signed by
President Corazon C. Aquino on February 28, 1986 creating the PCGG and
constituting its membership to assist the President in the recovery of ill gotten
wealth accumulated by the former President, his relatives and cronies.
Therein it is provided, among others:
Sec. 2. The Commission shall be charged with the task of assisting the
President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines

or abroad, including the takeover or sequestration of all business

enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority,
influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the
President may assign to the Commission from time to time.
(c) The adoption of safeguards to ensure that the above practices shall
not be repeated in any manner under the new government, and the
institution of adequate measures to prevent the occurrence of
corruption.
Sec. 3. The Commission shall have the power and authority:
(a) To conduct investigations as may be necessary in order to
accomplish and carry out the purposes of this order. (Emphasis
supplied.)
Under Executive Order No. 14 signed by President Aquino on May 7, 1 986, it
is also provided:
Sec. 1. Any provision of the law to the contrary notwithstanding, the
Presidential Commission on Good Government with the assistance of
the Office of the Solicitor General and other government agencies, is
hereby empowered to file and prosecute all cases investigated by
it under Executive Order No. 1, dated February 28, 1986 and Executive
Order No. 2, dated March 12, 1986, as may be warranted by its
findings.
Sec. 2. The Presidential Commission on Good Government shall file all
such cases, whether civil or criminal, with the Sandiganbayan, which
Shall have exclusive and original jurisdiction thereof.
Sec. 3. Civil suits for restitution, reparation of damages, or
indemnification for consequential damages, forfeiture proceedings
provided for under Republic Act No. 1379, or any other civil actions
under the Civil Code or other existing laws, in connection with
Executive Order No. I dated February 28, 1 986 and Executive Order
No. 2 dated March 12, 1986, may be filed separately from and proceed
independently of any criminal proceedings and may be proved by
preponderance of evidence. (Emphasis supplied.)

From the foregoing provisions of law, particularly Sections 2(b) and 3(a) of
Executive Order No. 1 and Sections 1 and 2 of Executive Order No. 14, it is
clear that the PCGG has the power to investigate and prosecute such illgotten wealth cases of the former President, his relatives and associates, and
graft and corrupt practices cases that may be assigned by the President to
the PCGG to be filed with the Sandiganbayan. No doubt, the authority to
investigate extended to the PCGG includes the authority, to conduct a
preliminary investigation.
6

In the same case We ruled that after the ratification of the 1987 Constitution
whereby the office of the Ombudsman was created under Article XI, the said
authority of respondent PCGG was maintained, to wit:
This Court, in Zaldivar, interpreting the aforesaid provision of the Constitution,
particularly Section 13(l) thereof vesting on the Ombudsman the right and the
power to investigate on its own or on complaint, any act or omission of any
public official, employee, office or agency which appears "to be illegal, unjust,
improper, or inefficient," held that the general power of investigation covers
the lesser power to conduct a preliminary investigation. Thus, as the power of
investigation vested on the Ombudsman under the Constitution includes the
power to conduct such a preliminary investigation, then the special prosecutor
(former Tanodbayan) may no longer conduct such a preliminary investigation
unless duly authorized by the Ombudsman.
A reading of the foregoing provision of the Constitution does not show that the
power of investigation including preliminary investigation vested on the
Ombudsman is exclusive. Hence, the said provision of the Constitution did not
repeal or remove the power to conduct an investigation, including the
authority to conduct a preliminary investigation, vested on the PCGG by
Executive Orders Nos. 1 and 14.
7

And even upon the passage of Republic Act No. 6770 known as the Ombudsman
Act of 1989 whereby under Section 15(l) the Ombudsman has primary jurisdiction
over the cases cognizable by the Sandiganbayan, this Court held in Cojuangco that
this authority of the Ombudsman is "not exclusive but is concurrent with other
similarly authorized agencies of the government." Thus, this Court held "that the
authority of the PCGG to conduct preliminary investigation of ill-gotten wealth and/or
unexplained wealth amassed before February 25, 1986," is maintained.
8

From the foregoing what is clear is that the PCGG, at the time it conducted the
investigation and filed the information against petitioner in this case, had the
authority to investigate and prosecute such ill-gotten wealth cases of former
President Ferdinand E. Marcos, members of his family, his relatives, subordinates,
and close associates, and graft and corrupt practices cases that may be assigned
from time to time by the President to the PCGG to be filed with the Sandiganbayan.

A careful reading of Sections 2(a) and 3, of Executive Order No. 1, in relation with
Sections 1, 2, and 3 of Executive Order No. 14, show that what the authority of the
respondent PCGG to investigate and prosecute covers are:
(a) The investigation and prosecution of the Civil action for the recovery of illgotten wealth under Republic Act No. 1379, accumulated by former President
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the takeover or
sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through his nominees, by taking
undue advantage of their public office and/or using their powers, authority and
influence, connections or relationship; and
(b) The investigation and prosecution of such offenses committed in the
acquisition of said ill-gotten wealth as contemplated under Section 2(a) of
Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise
falling under the foregoing categories, require a previous authority of the President
for the respondent PCGG to investigate and prosecute the same in accordance with
Section 2(b) of Executive Order No. 1. Otherwise, jurisdiction over such cases is
vested in the Ombudsman and other duly authorized investigating agencies as the
provincial and city prosecutors, their assistants, the Chief State Prosecutor and his
assistants, and the state prosecutors.
Thus for a penal violation to fall under the jurisdiction of the respondent PCGG
under Section 2(a) of Executive Order No. 1, the following elements must concur:
(1). It must relate to alleged ill-gotten wealth;
(2). Of the late President Marcos, his immediate family relatives, subordinates
and close associates;
(3). Who took undue advantage of their public office and/or used their power,
authority, influence, connections or relationship.
A reading of the information and the amended information that was filed by the
PCGG in this case shows that petitioner is charged with a violation of Republic Act
No. 3019 as amended, the Anti-Graft and Corrupt Practices Act. It is alleged that
petitioner, as president and general manager of the GSIS, allegedly entered into a
contract of sale with Cor-Asia, a private corporation, manifestly and grossly
disadvantageous to the GSIS, of seven percent (7%) of the 20-year Cultural Center
of the Philippines (CCP) bonds with a total face value of ELEVEN MILLION FOUR
HUNDRED FORTY THOUSAND TWO HUNDRED SIXTY PESOS and 20/100
(P11,440,226.20), at about forty percent (40%) discount, or at a lower price of about

SEVEN MILLION TWO HUNDRED THREE THOUSAND PESOS (P7,203,000.00),

when said bonds could then be easily sold and was in fact eventually sold to
COMBANK a few days thereafter at twelve percent (12%) discount only, to the
damage and prejudice of the Philippine government in the sum of THREE MILLION
TWO HUNDRED TWELVE THOUSAND PESOS (P3,212,000.00).
The amended information that was thereafter filed against petitioner contained
substantially the same allegations with the only amendment that petitioner was
identified as "a subordinate and crony/associate of former President Ferdinand E.
Marcos," and with the additional allegation of "taking undue advantage of his public
office and by using his relationship to said former President Ferdinand E.
Marcos, . . . ." There is no allegation that, President Marcos, his immediate family,
relatives, subordinate or close associate, as petitioner, thereby acquired ill-gotten
wealth. In fact all that the information and its amendment allege is that damage was
thereby caused to the Philippine government. From its allegation it also appears that
it was Cor-Asia which gained or profited by this transaction not petitioner.
Consequently, the amended information that was filed against petitioner does not fall
under the category of criminal actions for recovery of ill-gotten wealth filed against a
member of the family of President Marcos, relatives, subordinates or close
associates, who took undue advantage of their office or authority as contemplated
under Section 2(a) of Executive Order No. 1.
What the petitioner is actually charged with is for a violation of Republic Act No.
3019. Public respondent PCGG does not pretend that the President assigned to it
this particular case against the petitioner for investigation and prosecution in
accordance with Section 2(b) of Executive Order No. 1.
1wphi1

Moreover, an examination of the complaint filed with respondent PCGG, as well as

the affidavits, counter-affidavits and exhibits submitted at the preliminary
investigation show that there is no evidence at all that this alleged violation is crony
related, committed by petitioner by taking advantage of his public office, and was
committed in relation with the ill-gotten wealth being sought to be recovered
aforestated. There is, therefore, no evidence in the hands of the respondent PCGG
to justify the amendment of the information.
10

Indeed, the said amendment appears to be an afterthought to make it fall under the
type of offenses respondent PCGG may investigate and prosecute under the law. It
is a fundamental principle that when on its face the information is null and void for
lack of authority to file the same, it cannot be cured nor resurrected by an
amendment. Another preliminary investigation must be undertaken and thereafter,
based on evidence adduced, a new information should be filed.
11

12

Consequently all the actions respondent PCGG had taken in this case including the
filing of the information and amended information with the respondent court should
be struck down.
WHEREFORE, the petition is GRANTED and the questioned resolutions of the
respondent court dated August 7, 1989 and May 15, 1990 are hereby REVERSED
AND SET ASIDE, and another judgment is hereby rendered DISMISSING the case
S.B. Criminal Case No. 13342 and permanently enjoining public respondents from
further proceeding with the said case. The records of this case are hereby remanded
and referred to the Honorable Ombudsman, who has primary jurisdiction over the
same, for appropriate action.
SO ORDERED.

SECTION 4. Resolution of investigating prosecutor and its review

[G.R. No. 130399. September 20, 2001]

PUBLIC UTILITIES DEPARTMENT, OLONGAPO CITY, petitioner, vs.

HON. TEOFISTO T. GUINGONA, JR., Secretary of the Department of
Justice, and CONRADO L. TIU, respondents.
DECISION
BUENA, J.:

This is a petition for review of the Decision of the Court of Appeals promulgated on August
22, 1997 in CA-G.R. SP No. 39689, which affirmed the Resolution dated November 6, 1995 of
respondent Secretary of Justice Teofisto Guingona which directed the Acting City Prosecutor of
Olongapo City to move for the withdrawal of the informations against the respondent for theft of
electricity in relation to P.D. 401, if the same were already filed in court, xxx.
[1]

The antecedent facts of the case are undisputed:

Private respondent Conrado L. Tiu is the owner and manager of Contis Plaza, a supermarket
located at Rizal Avenue corner 21 Street, Olongapo City, and another establishment located at
No. 46 Fendler Street, East Tapinac, Olongapo City. The electric power consumption of private
respondent is supplied by petitioner Public Utilities Department.
st

Petitioner claimed that pursuant to its Power Loss Reduction Program, implemented with the
assistance of Meralco, a digital recording ammeter, or load logger, was installed on November

25, 1992 at the primary line of Contis Plaza to monitor its actual power utilization. It was later
discovered that the KWH electric meter of Contis Plaza failed to register the actual amount of its
power consumption. The power loss to petitioner was computed at 86.08%. For the purpose of
pinpointing the source of the power loss, private respondent was informed by petitioner that the
KWH electric meter, current transformers and metering facilities of Contis Plaza would be
inspected.
The inspection was done on March 3, 1993 in the presence of private respondent Tius
operations manager and lawyer. Meralco meter test crew checked the two (2) current
transformers installed outside of Contis Plaza using state-of-the-art phase angle test
apparatus. The test showed that the polarity markings on the terminals of one of the two (2)
current transformers were reversed or interchanged. This would counter-act the current of the
other transformer. Consequently, the effective registration of the KWH electric meter of Contis
Plaza was only 10.71% with the corresponding power loss to the herein petitioner of
89.29%. When corrections were made, the KWH electric meter reflected the correct amount of
electric consumption at Contis Plaza. The unregistered consumption at Contis Plaza for the
billing period from November 8, 1988 until February, 1993, was pegged and valued in the
amount of P9,364,267.00. Despite repeated demands to pay the said amount, respondent Tiu
failed and refused to pay the same.
On March 17, 1993, the KWH electric meter installed at respondent Tius building located at
No. 46 Fendler Street, East Tapinac, Olongapo City, was found to register 0-0
consumption. After a thorough inspection, it was discovered that the potential link of the KWH
meter installed at the second floor of the said building was disengaged. The KWH meter thus did
not register any consumption.
Subsequently, petitioner filed a complaint for violation of City Ordinance No. 23, Series of
1989, and of Presidential Decree No. 401 for theft of electricity against private respondent.
After preliminary investigation, the office of the State Prosecutor dismissed the complaint.
On appeal, then Acting Secretary of the Department of Justice Demetrio Demetria concurred
with the office of the State Prosecutors findings that the violation of City Ordinance No. 23 had
prescribed but found sufficient evidence to hold private respondent liable for theft of electricity.
Upon private respondents filing of a motion for reconsideration, respondent Secretary of
Justice reversed the said ruling and directed the withdrawal of the information against private
respondent for theft of electricity. This prompted petitioner to file a petition for certiorari with
the Court of Appeals.
[2]

[3]

On August 22, 1997, the Court of Appeals promulgated its decision dismissing the petition
for lack of merit. Hence, the present petition.

The only issue in this case is whether or not the Court of Appeals erred in ruling that the
respondent Secretary of Justice did not commit grave abuse of discretion in issuing the
Resolution of November 6, 1995.
Petitioner alleges that the Court of Appeals committed grave and serious reversible error in
dismissing the petition for certiorari since the petitioner has established a prima facie case to
prosecute private respondent for two (2) counts of theft of electricity.
Petitioner argues that the purpose of a preliminary investigation is not to determine whether
the accused is guilty beyond reasonable doubt of the crime charged, but merely whether there
existed a probable cause for his prosecution, i.e., whether there is sufficient ground to engender a
well-founded belief that a crime has been committed; that the respondent is probably guilty
thereof and should be held for trial. Petitioner submits that it is sufficient to adduce evidence
which inclines the mind to believe, without necessarily leaving room for doubt, that the accused
is guilty of a crime and should be held for trial.
In support of its petition, petitioner cites then Acting Secretary of Justice Demetrio G.
Demetrias resolution, to wit:

Assuming there is no direct proof that respondent caused the tampering of the electric
meters either by disengaging the polarity thereof or causing the unauthorized
electrical connections, there is ample circumstantial evidence to prove his
culpability. Thus, circumstantial evidence is sufficient for conviction if: (a) there is
more than one circumstance; (b) the facts from which the inference are derived are
proven; and (c) the combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt. (Section 5, Rule 133, Revised Rules of Court).
The following circumstances have been shown, to wit:
In I.S. No. 339
1. That respondent provided the required electric meters and current transformers
(CTs) installed at his business premises;
2. That complainants installation crew simply followed the standard metering
principle in connecting the current transformers to the KWH meter as respondents
technicians prepared all electrical connections;
3. That it was discovered by the MERALCO meter test crew that the two CTs had
their polarity markings tampered, resulting in that the tampered marking of the

polarity of the CTs led to a wrong connection of the KWH meter which, consequently,
registered a 10.71% electric consumption only, with a power loss of 89.29% to
complainant;
4. That after the wiring connection was reversed, the rotation pace of the meter
increased to almost 675%;
In I.S. No. 506, aside from the first and second circumstances above-mentioned,
additional circumstances were also noted, thus:
1. That when inspected by complainants team, meter No. 26439328 reflected zero
consumption;
2. That the potential link in the said electric meter at the second floor was disengaged
resulting in the meter not registering any electric consumption;
3. That respondent transferred the load of his appliances and equipment from the first
floor of the building to the second floor where the tampered meter is located;
4. That when complainants team disconnected the loadside of the meter, a spark was
produced, indicating that there were loads attached to the tampered meter;
5. That an inventory of the electrical connections to the tampered meter revealed that
respondent installed electrical connections without the consent of complainant, the
electrical consumption of the connections thereby not being reflected in the tampered
meter.
The above-enumerated unbroken chain of events leads to the unmistakable conclusion
that respondent, to the exclusion of others, was the author of the crime.
[4]

Petitioner further argues that it is not necessary to prove directly that respondent Tiu did the
tampering himself for a contrary rule would make the prosecution of power theft and pilferage
next to impossible.
After a careful examination of the assailed decision and resolutions, and the pleadings filed
by both parties, the Court finds the instant petition to be without merit.
The holding of a preliminary investigation is a function of the Executive Department and not
of the Judiciary. The primary objective of a preliminary investigation is to free a respondent
[5]

from the inconvenience, expense, ignominy and stress of defending himself/herself in the course
of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a
more or less summary proceeding by a competent officer designated by law for that
purpose. Secondly, such summary proceeding also protects the state from the burden of
unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from
false, frivolous or groundless charges. The decision whether or not to dismiss the complaint
against private respondent is necessarily dependent on the sound discretion of the prosecuting
fiscal and, ultimately, that of the Secretary of Justice.
[6]

[7]

Decisions or resolutions of prosecutors are subject to appeal to the Secretary of Justice who,
under the Revised Administrative Code, exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
[8]

When the respondent Secretary of Justice, in his Resolution of November 6, 1995, reversed
the findings of Acting Secretary of Justice Demetria, in the Resolution dated May 18, 1995, it
was done in the exercise of his power of review, which rests upon his sound discretion.
The Resolution of the Secretary of Justice may be reviewed by the court. However, the court
is without power to directly decide matters over which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is not empowered to
substitute its judgment for that of the Congress or of the President when they did not act in grave
abuse of discretion.
Thus, although it is entirely possible that the investigating fiscal may erroneously exercise
the discretion lodged in him by law, this does not render his act amenable to correction and
annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction.
[9]

This Court finds that the Court of Appeals did not err in ruling that the respondent Secretary
of Justice did not act in grave abuse of discretion in directing the Acting City prosecutor of
Olongapo City to move for the withdrawal of the informations against the private respondent for
theft of electricity.
Findings of the Secretary of Justice are not subject to review unless shown to have been
made with grave abuse.
[10]

In its Resolution, respondent Secretary of Justice made the following ratiocination:

We could not lend credence to the claim of the complainant that respondent stole
electricity in view of the findings of the Meralco meter test crew that the polarity
markings of the terminals of one of the current transformers were reversed or

interchanged. The assumption derived from this finding is hardly persuasive. Even
after the correction of the perceived defect in the current transformers, there was no
material and substantial increase in the KWH consumption of the respondent.
xxx the respondent cannot be faulted for the reversed or interchanged polarity
markings. The current transformers, prior to their installation, were duly verified,
tested and examined by authorized personnel of the complainant. They were installed
after they were verified to be fit for service and were approved for connection on 4
October 1988 by the complainant. The respondent, therefore, could not have caused
the reversal or the interchange of the markings. In fact, the witness for the
complainant, Mr. Jose Ricky V. Tan, even stated that since the current transformer
were old, he could not determine if the polarity markings were changed or not.
xxx Thus, we affirmed your findings that:
x x x. As correctly pointed out by respondent, it is not possible for him to disconnect
the potential link after its installation because there would be some initial reading that
will be registered. Since the reading is 0-0 from the time of its installation up to the
time it was discovered on March 17, 1993, the only logical explanation for the 0-0
reading is that the potential link was never engaged/connected when the new meter
was installed. This is buttressed by the fact that when the subject electric meter was
inspected on March 17, 1993, the seal was still intact and there is no evidence of
tampering. Whoever initially installed said electric meter failed to connect the
potential link before covering or sealing the meter. Certainly, we cannot blame
respondent for the inefficiency or incompetence of others. The fact that it was
respondent who informed the PUD (complainant) that one of his electric meters has a
0-0 reading after receiving his monthly billing negates bad faith or deliberate intent on
the part of the respondent to violate P.D. 401.
[11]

Comparing the alleged circumstantial evidence enumerated by the petitioner and the
ratiocination made by the respondent Secretary of Justice, the Court finds that no sufficient
evidence of guilt and no prima facie case has been presented by petitioner to compel the fiscal to
prosecute the case of theft of electricity against private respondent.
In Quiso vs. Sandiganbayan, this Court pointed out that:
[12]

x x x[A] fiscal by the nature of his office, is under no compulsion to file a particular
criminal information where he is not convinced that he has evidence to support the

allegations thereof. Although this power and prerogative xxx is not absolute and
subject to judicial review, it would be embarrassing for the prosecuting attorney to be
compelled to prosecute a case when he is in no position to do so, because in his
opinion he does not have the necessary evidence to secure a conviction, or he is not
convinced of the merits of the case."
We reiterate the ruling of this Court in Quiso vs. Sandiganbayan and in Jacob vs. Puno,
that certiorari will not lie to compel the respondent Secretary of Justice to file a case if he
thinks the evidence does not warrant it. Otherwise, he will be committing a dereliction of duty.
[13]

[14]

WHEREFORE, there being no showing of grave abuse of discretion on the part of public
respondent which would warrant the overturning of its decision, the instant petition is
DISMISSED and the assailed Decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.

FERDINAND T. SANTOS, ROBERT

JOHN SOBREPEA, and RAFAEL
PEREZ DE TAGLE, JR.,
Petitioners,

- versus WILSON GO,

Respondent.

G.R. No. 156081

Present:
Davide, Jr., C.J.,
(Chairman),
Quisumbing,
Ynares-Santiago, Carpio, and
Azcuna, JJ.
Promulgated:
October 19, 2005

x--------------------------------------------------x

DECISION
QUISUMBING, J.:

For our review on certiorari is the Decision[1] dated September 2, 2002 of the
Court of Appeals in CA-G.R. SP No. 67388, as well as its Resolution [2] dated
November 12, 2002, denying petitioners motion for reconsideration. The appellate
court dismissed the petition for review under Rule 43[3] of the 1997 Rules of Civil
Procedure for being an erroneous mode of appeal from the Resolution [4] of the
Secretary of Justice. The Secretary had modified the Resolution[5] of the Office of
the City Prosecutor of Pasig City in I.S. No. PSG 00-04-10205 and directed the
latter to file an information for estafa against petitioners.

The petitioners are corporate directors and officers of Fil-Estate Properties,

Inc. (FEPI).
On October 17, 1995, FEPI allegedly entered into a Project Agreement with
Manila Southcoast Development Corporation (MSDC), whereby FEPI undertook
to develop several parcels of land in Nasugbu, Batangas allegedly owned by
MSDC. Under the terms of the Agreement, FEPI was to convert an approximate
area of 1,269 hectares into a first-class residential, commercial, resort, leisure, and
recreational complex. The said Project Agreement clothed FEPI with authority to
market and sell the subdivision lots to the public.
Respondent Wilson Go offered to buy Lot 17, Block 38 from FEPI. Lot 17
measured approximately 1,079 square meters and the purchase price agreed upon
wasP4,304,000. The Contract to Sell signed by the parties was the standard, printed
form prepared by FEPI. Under the terms of said contract of adhesion, Go agreed to
pay a downpayment of P1,291,200 and a last installment of P840,000 on the
balance due on April 7, 1997. In turn, FEPI would execute a final Deed of Sale in
favor of Go and deliver to Go the owners duplicate copy of Transfer Certificate of
Title (TCT) upon complete payment of the purchase price.
Go fully complied with the terms of the Contract. FEPI, however, failed to
develop the property. Neither did it release the TCT to Go. The latter demanded
fulfillment of the terms and conditions of their agreement. FEPI balked. In several
letters to its clients, including respondent Go, FEPI explained that the project was

temporarily halted due to some claimants who opposed FEPIs application for
exclusion of the subject properties from the coverage of the Comprehensive
Agrarian Reform Law (CARL). Further, FEPIs hands were tied by a cease and
desist order issued by the Department of Agrarian Reform (DAR). Said order was
the subject of several appeals now pending before this Court. FEPI assured its
clients that it had no intention to abandon the project and would resume developing
the properties once the disputes had been settled in its favor.
Go was neither satisfied nor assured by FEPIs statements and he made
several demands upon FEPI to return his payment of the purchase price in full.
FEPI failed to heed his demands. Go then filed a complaint before the Housing
and Land Use Regulatory Board (HLURB). He likewise filed a separate
Complaint-Affidavit for estafa under Articles 316 [6] and 318[7] of the Revised
Penal Code before the Office of the City Prosecutor of Pasig City against
petitioners as officers of FEPI. The complaint for estafa averred that the Contract
to Sell categorically stated that FEPI was the owner of the property. However,
before the HLURB, FEPI denied ownership of the realty. Go alleged that the
petitioners committed estafa when they offered the subject property for sale since
they knew fully well that the development of the property and issuance of its
corresponding title were impossible to accomplish, as the ownership and title
thereto had not yet been acquired and registered under the name of FEPI at the
time of sale. Thus, FEPI had grossly misrepresented itself as owner at the time of

the sale of the subject property to him and when it received from him the full
payment, despite being aware that it was not yet the owner.
Petitioners challenged the jurisdiction of the City Prosecutor of Pasig City to
conduct the preliminary investigation on the ground that the complainant was not
from Pasig City, the contract was not executed nor were the payments made in
Pasig City. Besides, countered petitioners, none of the elements of estafa under
Articles 316 and 318 were present. They averred that FEPI was not the owner of
the project but the developer with authority to sell under a joint venture with
MSDC, who is the real owner. They further denied that FEPI ever made any
written nor oral representation to Go that it is the owner, pointing out that Go failed
to positively identify who made such misrepresentation to him nor did Go say
where the misrepresentation was made. According to petitioner, there being neither
deceit nor misrepresentation, there could be no damage nor prejudice to
respondent, and no probable cause exists to indict the petitioners. Petitioners
likewise insisted that they could not be held criminally liable for abiding with a
cease-and-desist order of the DAR.
In his reply, Go stressed that the City Prosecutor of Pasig City had
jurisdiction over the case. He argued that the Contract to Sell specifically provided
that payment be made at FEPIs office at Pasig City and the demand letters bore the
Pasig City address. He averred that FEPI could not disclaim ownership of the
project since the contract described FEPI as owner without mentioning MSDC.

Additionally, the acts executed by FEPI appearing in the contract were the acts of
an owner and not a mere developer.
After the preliminary investigation, the City Prosecutor resolved to dismiss
the complaint for estafa, thus:
Wherefore, the case for estafa, under Articles 316 and 318 of the
Revised Penal Code, filed against the respondents Ferdinand Santos,
Robert [John] Sobrepea, Federico Campos, Polo Pantaleon and Rafael
Perez de Tagle, Jr. is dismissed for insufficiency of evidence. [8]

The City Prosecutor found no misrepresentation stating that, (1) the Contract
to Sell did not mention FEPI as the owner of the property; (2) since no Deed of
Sale had been executed by the parties, then petitioners are not yet bound to deliver
the certificate of title since under both the Contract to Sell and Section 25 [9] of
Presidential Decree No. 957,[10] FEPI was bound to deliver the certificate of title
only upon the execution of a contract of sale; and (3) the City Prosecutor
disavowed any jurisdiction since it is the HLURB, which has exclusive jurisdiction
over disputes and controversies involving the sale of lots in commercial
subdivision including claims involving refunds under P.D. No. 1344.[11]
Go appealed the City Prosecutors Resolution to the Department of Justice
(DOJ), which, in turn reversed the City Prosecutors findings, and held, to wit:
WHEREFORE, the questioned resolution is hereby MODIFIED.
The City Prosecutor of Pasig City is directed to file an information for
estafa defined and penalized under Art. 316, par. 1 of the Revised Penal
Code against respondents Ferdinand Santos, Robert [John] Sobrepea,
Federico Campos, Polo Pantaleon and Rafael Perez De Tagle, Jr. and
report the action taken within ten (10) days from receipt hereof.

SO ORDERED.[12]

The DOJ found that there was a prima facie basis to hold petitioners liable for
estafa under Article 316 (1) of the Revised Penal Code, pointing out that the
elements of the offense were present as evidenced by the terms of the Contract to
Sell. It ruled that under the Contract, the petitioners sold the property to Go despite
full knowledge that FEPI was not its owner. The DOJ noted that petitioners did not
deny the due execution of the contract and had accepted payments of the purchase
price as evidenced by the receipts. Thus, FEPI was exercising acts of ownership
when it conveyed the property to respondent Go. Acts to convey, sell, encumber or
mortgage real property are acts of strict ownership. Furthermore, nowhere did
FEPI mention that it had a joint venture with MSDC, the alleged true owner of the
property. Clearly, petitioners committed acts of misrepresentation when FEPI
denied ownership after the perfection of the contract and the payment of the
purchase price. Since a corporation can only act through its agents or officers, then
all the participants in a fraudulent transaction are deemed liable.
Accordingly, an Information for estafa was filed against petitioners and
Federico Campos and Polo Pantaleon before the MTC of Pasig City. However, the
arraignment was deferred since Campos and Pantaleon filed a Motion for Judicial
Determination of Probable Cause, which was granted by the trial court. Meanwhile
petitioners herein filed with the Court of Appeals, a petition for review docketed as

CA-G.R. SP No. 67388. Accordingly, the trial court deferred the arraignment of
petitioners until the petition for review was resolved.
On September 2, 2002, the appellate court disposed of CA-G.R. SP No.
67388 in this wise:
WHEREFORE, foregoing premises considered, the Petition,
HAVING NO MERIT, is hereby DENIED DUE COURSE AND
ORDERED DISMISSED, with cost to Petitioners.
SO ORDERED.[13]

The appellate court opined that a petition for review pursuant to Rule 43 cannot be
availed of as a mode of appeal from the ruling of the Secretary of Justice because
the Rule applies only to agencies or officers exercising quasi-judicial functions.
The decision to file an information or not is an executive and not a quasi-judicial
function.
Herein petitioners seasonably moved for reconsideration, but the motion was
likewise denied by the Court of Appeals.
Hence, this petition based on the following grounds:
(1) THE COURT OF APPEALS ERRED IN RULING THAT RULE 43 OF THE
1997 RULES OF CIVIL PROCEDURE CANNOT BE AVAILED OF TO
APPEAL THE RESOLUTIONS OF THE SECRETARY OF JUSTICE.[14]
(2) THE DOJ SECRETARY ERRED WHEN IT FOUND PROBABLE CAUSE
AND RESOLVED TO FILE AN INFORMATION FOR ESTAFA UNDER
ART. 316, SEC. 1 OF THE REVISED PENAL CODE AGAINST
PETITIONERS, CONSIDERING THAT: (A) Petitioners did not pretend
that they, or FEPI, were the owners of the subject property; (B) FEPI need
not have been the owner at the time the Contract to Sell was furnished to

respondent Go; (C) There was no prejudice caused to respondent Go; (D)
There is no personal act or omission constituting a crime ascribed to any
of the Petitioners, therefore, there can be no probable cause against them;
and (E) There was no deceit or even intent to deceive.[15]

To our mind, the sole issue for resolution is whether a petition for review
under Rule 43 is a proper mode of appeal from a resolution of the Secretary of
Justice directing the prosecutor to file an information in a criminal case. In the
course of this determination, we must also consider whether the conduct of
preliminary investigation by the prosecutor is a quasi-judicial function.
Petitioners submit that there is jurisprudence to the effect that Rule 43 covers
rulings of the Secretary of Justice since during preliminary investigations, the DOJs
decisions are deemed as awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions, and its prosecutorial offices are considered quasi-judicial bodies/officers
performing quasi-judicial functions.
Respondent counters that the herein petition is a dilatory tactic and
emphasizes that injunction will not lie to restrain criminal prosecution.
Rule 43 of the 1997 Rules of Civil Procedure clearly shows that it governs
appeals to the Court of Appeals from decisions and final orders or resolutions of
the Court of Tax Appeals or quasi-judicial agencies in the exercise of their quasi-

judicial

functions.

The

Department

of

Justice

is

not

among

the

agencies[16] enumerated in Section 1 of Rule 43. Inclusio unius est exclusio alterius.
We cannot agree with petitioners submission that a preliminary investigation
is a quasi-judicial proceeding, and that the DOJ is a quasi-judicial agency
exercising a quasi-judicial function when it reviews the findings of a public
prosecutor regarding the presence of probable cause.
In Bautista v. Court of Appeals,[17] we held that a preliminary investigation is
not a quasi-judicial proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine the guilt or
innocence of the accused. He does not exercise adjudication nor rule-making
functions. Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with a crime
and to enable the fiscal to prepare his complaint or information. It is not a trial of
the case on the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to believe that the
accused is guilty thereof. While the fiscal makes that determination, he cannot be
said to be acting as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal.[18]

Though some cases[19] describe the public prosecutors power to conduct a

preliminary investigation as quasi-judicial in nature, this is true only to the extent
that, like quasi-judicial bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court, and the similarity ends at
this point.[20] A quasi-judicial body is as an organ of government other than a court
and other than a legislature which affects the rights of private parties through either

adjudication or rule-making.[21] A quasi-judicial agency performs adjudicatory

functions such that its awards, determine the rights of parties, and their decisions
have the same effect as judgments of a court. Such is not the case when a public
prosecutor conducts a preliminary investigation to determine probable cause to file
an information against a person charged with a criminal offense, or when the
Secretary of Justice is reviewing the formers order or resolutions.
Since the DOJ is not a quasi-judicial body and it is not one of those agencies
whose decisions, orders or resolutions are appealable to the Court of Appeals under
Rule 43, the resolution of the Secretary of Justice finding probable cause to indict
petitioners for estafa is, therefore, not appealable to the Court of Appeals via a
petition for review under Rule 43. Accordingly, the Court of Appeals correctly
dismissed petitioners petition for review.
Notwithstanding that theirs is a petition for review properly under Rule 45,
petitioners want us to reverse the findings of probable cause by the DOJ after their
petition for review under Rule 43 from the court a quo failed. This much we are
not inclined to do, for we have no basis to review the DOJs factual findings and its
determination of probable cause.

First, Rule 45 is explicit. This mode of appeal to the Supreme Court covers
the judgments, orders or resolutions of the Court of Appeals, the Sandiganbayan,
the Regional Trial Court or any authorized court and should raise only pure
question of law. The Department of Justice is not a court.
Also, in this petition are raised factual matters for our resolution, e.g. the
ownership of the subject property, the existence of deceit committed by petitioners
on respondent, and petitioners knowledge or direct participation in the Contract to
Sell. These are factual issues and are outside the scope of a petition for review on
certiorari. The cited questions require evaluation and examination of evidence,
which is the province of a full-blown trial on the merits.
Second, courts cannot interfere with the discretion of the public prosecutor
in evaluating the offense charged. He may dismiss the complaint forthwith, if he
finds the charge insufficient in form or substance, or without any ground. Or, he
may proceed with the investigation if the complaint in his view is sufficient and in
proper form.[22] The decision whether to dismiss a complaint or not, is dependent
upon the sound discretion of the prosecuting fiscal and, ultimately, that of the
Secretary of Justice.[23] Findings of the Secretary of Justice are not subject to
review unless made with grave abuse of discretion. [24] In this case, petitioners have

not shown sufficient nor convincing reason for us to deviate from prevailing
jurisprudence.
WHEREFORE, the instant petition is DENIED for lack of merit. The
Decision and the Resolution of the Court of Appeals in CA-G.R. SP No. 67388,
dated September 2, 2002 and November 12, 2002, respectively, are AFFIRMED.
Costs against petitioners.

SO ORDERED.

LAILA G. DE OCAMPO, G.R. No. 147932

Petitioner,
Present:
QUISUMBING, J., Chairperson,
CARPIO,
-versus- CARPIO MORALES, and
TINGA, JJ.

THE HONORABLE
SECRETARY OF JUSTICE,
MAGDALENA B. DACARRA, Promulgated:
and ERLINDA P. ORAYAN,
Respondents. January 25, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --------x

DECISION

CARPIO, J.:

The Case

This petition for certiorari assails the Resolutions dated 15

September 2000 and 19 April 2001 of the Secretary of the
[1]

Department of Justice (DOJ Secretary) in I.C. No. 99-6254. The

DOJ Secretary denied Laila G. De Ocampos (petitioner) petition
[2]

[3]

for review of the investigating prosecutors finding of probable

cause against her for homicide in relation to Section 10(a), Article
[4]

VI of Republic Act No. 7610 (RA 7610) and for violation of the
same provision of RA 7610. The DOJ Secretary also denied
[5]

[6]

petitioners motion for reconsideration.

The Facts

The present case arose from a sworn statement of respondent

Magdalena B. Dacarra (Magdalena) executed before the Womens
Desk of the CPD Police Station in Batasan Hills, Quezon City on 10
December 1999. Magdalena stated that on 4 December 1999, her
nine-year-old son Ronald complained of dizziness upon arriving
home at about six in the evening. Ronald then vomited,
prompting Magdalena to ask what happened. Ronald replied that
petitioner, who was Ronalds teacher, banged his head against
that of his classmate Lorendo Orayan (Lorendo). Magdalena

inspected Ronalds head and saw a woundless contusion. Due to

Ronalds continued vomiting, Magdalena brought him to a quack
doctor (arbularyo) on 5 December 1999. The following morning,
Magdalena brought Ronald to the East Avenue Medical Center
where he underwent an x-ray. The attending physician informed
Magdalena that Ronalds head had a fracture. Blood oozed out of
Ronalds nose before he died on 9 December 1999.

Lorendo

also

executed

sworn

statement

narrating

how

petitioner banged his head against Ronalds.

During the inquest proceedings on 14 December 1999,

Assistant Quezon City Prosecutor Maria Lelibet Sampaga
(inquest prosecutor) ruled as follows:
Evidence warrants the release of the respondent for
further investigation of the charges against her. The case
is not proper for inquest as the incident complained of
happened on December 4, 1999. Further, we find the
evidence insufficient to support the charge for homicide
against the respondent. There is no concrete evidence to
show proof that the alleged banging of the heads of the
two minor victims could be the actual and proximate
cause of the death of minor Ronald Dacarra y Baluton.
Besides, the police report submitted by the respondent in

this case states that said victim bears stitches or sutures

on the head due to a vehicular accident. There is no
certainty, therefore, that respondents alleged wrongdoing
contributed or caused the death of said victim.
[7]

Subsequently, the case was referred to Assistant Quezon

City Prosecutor Lorna F. Catris-Chua Cheng (investigating
prosecutor) for preliminary investigation. She scheduled the
first hearing on 6 January 2000.
Respondent Erlinda P. Orayan (Erlinda), Lorendos mother,
attended the hearing of 6 January 2000 and alleged that
petitioner offered her P100,000, which she initially accepted, for
her and her sons non-appearance at the preliminary investigation.
Erlinda presented the money to the investigating prosecutor.

On 7 January 2000, Jennilyn Quirong, who witnessed the

head-banging incident, and Melanie Lugales, who claimed to be
another victim of petitioners alleged cruel deeds, filed their
sworn statements with the Office of the Quezon City Prosecutor.

On 18 January 2000, petitioner submitted her counter-affidavit.

Petitioner invoked the disposition of the inquest prosecutor finding
insufficient evidence to support the charges against her. Petitioner
assailed the omission in Magdalenas sworn statement about
Ronalds head injury due to a vehicular accident in November
1997. Petitioner pointed out the absence of damage or injury on
Lorendo as borne out by his medical certificate. Petitioner
contended that the head-banging incident was not the proximate
cause of Ronalds death, but the failed medical attention or
medical negligence. Petitioner also alleged that Jennilyn Quirong
and Melanie Lugales have immature perception. Petitioner further
asserted that the causes of death stated in Ronalds Death
Certificate are hearsay and inadmissible in the preliminary
investigation.

Ronalds Death Certificate shows the immediate cause of

his death as Cardio Pulmonary Arrest, the underlying cause as
Cerebral Edema, and other significant conditions contributing
to death as Electrolyte imbalance and vomiting. The Autopsy
Report, obtained by the investigating prosecutor from the PNP
Crime Laboratory in Camp Crame, states the cause of death as
Intracranial hemorrhage secondary to traumatic injury of the
head.

The investigating prosecutor issued a Resolution finding probable

cause against petitioner for the offenses charged. The dispositive
portion of the Resolution reads:

WHEREFORE, in view of the foregoing, it is respectfully

recommended that [petitioner] be charged with Homicide
in relation to Art. VI, Sec. 10 of R.A. 7610 and Violation of
Art. VI, Sec. 10(a) of R.A. 7610 with no bail recommended
for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A.
7610 provides that:

For purposes of this Act, the penalty for

the commission of acts punishable under
Articles 248, 249, 262, par. 2 and 263, par. 1
Act No. 3815, as amended, the Revised Penal
Code, for the crimes of murder, homicide, other
intentional
mutilation
and serious physical
injuries,
respectively,
shall
be reclusion
perpetua when the victim isunder twelve (12)
years of age.

Bail recommended: No bail recommended Homicide, in

relation to Art. VI, Sec. 10, R.A. 7610; and
Twenty Thousand pesos (P20,000.00) Viol.
of Sec. 10(a) of R.A. 7610
[8]

Consequently, petitioner filed a petition for review with

the DOJ.

In her appeal to the DOJ, petitioner contended that the

investigating prosecutor showed bias in favor of complainants

Magdalena and Erlinda (complainants) for not conducting a

clarificatory hearing and unilaterally procuring the autopsy
report. Petitioner argued that the investigating prosecutor erred
in concluding that her alleged act of banging Ronald and
Lorendos heads was the cause of Ronalds injury and that such
was an act of child abuse. Petitioner also alleged that it is the
Office of the Ombudsman which has jurisdiction over the case,
and not the Quezon City Prosecutors Office.

The Resolution of the DOJ Secretary

The DOJ Secretary denied the petition for review. The DOJ
Secretary held that there was no bias in complainants favor when
the investigating prosecutor did not conduct a clarificatory
hearing and unilaterally procured the autopsy report as nothing
precluded her from doing so.

The DOJ Secretary upheld the investigating prosecutors finding

that Ronalds injury was the direct and natural result of petitioners
act of banging Ronald and Lorendos heads. The DOJ Secretary
stated that petitioner never denied such act, making her
responsible for all its consequences even if the immediate cause
of Ronalds death was allegedly the failed medical attention or
medical negligence. The DOJ Secretary held that assuming there
was failure of medical attention or medical negligence, these

inefficient intervening causes did not break the relation of the

felony committed and the resulting injury.

The DOJ Secretary rejected petitioners claim that she is innocent

as held by the inquest prosecutor. The inquest prosecutor did not
dismiss the case. She merely recommended petitioners release
for further investigation since the case was not proper for inquest
and the evidence was then insufficient.

The DOJ Secretary further stated that the omission in Magdalenas

sworn statement about Ronalds head injury due to a vehicular
accident in November 1997 and the absence of any injury on
Lorendo are inconsequential.

Moreover, the DOJ Secretary ruled that whether the statements of

the causes of death in the death certificate and autopsy report
are hearsay, and whether Jennilyn Quirong and Melanie Lugales
have immature perception, are evidentiary matters which should
be determined during trial. The DOJ Secretary also sustained the
investigating prosecutors conclusion that the banging of Ronald
and Lorendos heads is an act of child abuse.

Petitioner filed a motion for reconsideration which the DOJ

Secretary denied in his Resolution dated 19 April 2001.
[9]

[10]

Hence, this petition.

The Issues

Petitioner raises the following issues:

1. Whether petitioner was denied due process during the

preliminary investigation; and

2. Whether there is probable cause against petitioner for

homicide under Article 249 of the Revised Penal Code in
relation to Section 10(a), Article VI of RA 7610 and for
violation of Section 10(a), Article VI of RA 7610.

The Ruling of the Court

The petition lacks merit.

Before resolving the substantive issues in this case, the Court will
address the procedural issue raised by the Office of the Solicitor
General (OSG). The OSG contends that instead of Rule 65, Rule
[11]

43 is applicable to the present case. Thus, the OSG argues that

the petition should be dismissed outright for being filed with this
Court, instead of with the Court of Appeals, under a wrong mode
of appeal. On the other hand, assuming Rule 65 applies,
the OSG points out that the petition for certiorarishould be filed
with the Court of Appeals.

Based on Memorandum Circular No. 58, the resolution of the DOJ

Secretary is appealable administratively to the Office of the
[12]

President since the offenses charged in this case are punishable

by reclusion perpetua. From the Office of the President, the
[13]

aggrieved party may file an appeal with the Court of Appeals

pursuant to Rule 43.
[14]

Even assuming that the DOJ Secretary committed grave

abuse of discretion in rendering the assailed Resolutions
amounting to lack or excess of jurisdiction, petitioner should have
filed the instant petition for certiorari with the Court of Appeals.
Hence, on the issue alone of the propriety of the remedy sought

by petitioner, this petition for certiorari must fail. However,

considering the gravity of the offenses charged and the need to
expedite the disposition of this case, the Court will relax the rules
and finally resolve this case in the interest of substantial justice.
Whether petitioner was denied
due process during the preliminary investigation

Absence of a clarificatory hearing

The Court rejects petitioners contention that she was denied due
process when the investigating prosecutor did not conduct a
clarificatory hearing. A clarificatory hearing is not indispensable
during preliminary investigation. Rather than being mandatory, a
clarificatory hearing is optional on the part of the investigating
officer as evidenced by the use of the term may in Section 3(e) of
Rule 112. This provision states:

(e) If the investigating officer believes that there

are matters to be clarified, he may set a hearing to
propound clarificatory questions to the parties or their
witnesses, during which the parties shall be afforded
an opportunity to be present but without the right to
examine or cross-examine. xxx (emphasis supplied)
[15]

The use of the word may in a statute commonly denotes that it is

directory in nature. The term may is generally permissive only
and operates to confer discretion. Under Section 3(e) of Rule 112,
it is within the discretion of the investigation officer whether to
[16]

set the case for further hearings to clarify some matters.

In this case, the investigating prosecutor no longer

conducted hearings after petitioner submitted her counteraffidavit. This simply means that at that point the investigating
prosecutor believed that there were no more matters for
clarification. It is only in petitioners mind that some crucial
points still exist and need clarification. In any event, petitioner
can raise these important matters during the trial proper.
Petitioner was not deprived of due process since both parties
were accorded equal rights in arguing their case and presenting
their respective evidence during the preliminary investigation.
Due process is merely an opportunity to be heard. Petitioner
cannot successfully invoke denial of due process since she was
[17]

given the opportunity of a hearing. She even submitted her

counter-affidavit to the investigating prosecutor on 18 January
[18]

2000.

Preliminary investigation is merely inquisitorial. It is not a

trial of the case on the merits. Its sole purpose is to determine
[19]

whether a crime has been committed and whether the

respondent is probably guilty of the crime. It is not the
[20]

occasion for the full and exhaustive display of the parties

evidence. Hence, if the investigating prosecutor is already
[21]

satisfied that he can reasonably determine the existence of

probable cause based on the parties evidence thus presented, he
may terminate the proceedings and resolve the case.

Obtaining a copy of the autopsy report

Petitioner argues that she was denied the right to examine
evidence submitted by complainants when the investigating
prosecutor unilaterally obtained a copy of the autopsy report from
the PNP Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report
is not part of the parties evidence, the Rules on preliminary
investigation do not forbid the investigating prosecutor from
obtaining it. Neither is there a law requiring the investigating
prosecutor to notify the parties before securing a copy of the
autopsy report. The autopsy report, which states the causes of
Ronalds death, can either absolve or condemn the petitioner.
Unfortunately for petitioner, the investigating prosecutor found
that the autopsy report bolstered complainants allegations.

Moreover, there is nothing to support petitioners claim that the

investigating prosecutor was biased in favor of complainants.
There are other pieces of evidence aside from the autopsy report
upon which the investigating prosecutor based her finding of
probable cause. The autopsy report is not the sole piece of
evidence against petitioner. The sworn statement of the other
victim, Lorendo, and the eyewitness account of Jennilyn Quirong,
substantiate the charges against petitioner. Petitioners failure to
deny

the

occurrence

of

the

head-banging

incident

also

strengthened complainants allegations.

Petitioner mistakenly cites Section 3(d) of Rule 112 in arguing

[22]

that the investigating prosecutor should not go beyond the

evidence presented by complainants in resolving the case. This
provision applies if the respondent cannot be subpoenaed or if
subpoenaed fails to submit her counter-affidavit within the
prescribed period. Such is not the case here where petitioner filed
her counter-affidavit and both parties presented their respective
evidence.

Whether there is probable cause

for the offenses charged against petitioner

Existence of probable cause

Petitioner challenges the finding of probable cause against her for

the offenses charged arguing that the head-banging incident was
not the proximate cause of Ronalds death. Petitioner insists that
efficient intervening events caused Ronalds death.
We do not agree. There is probable cause for the offenses charged
against petitioner. Probable cause is the existence of such facts
and circumstances as would excite the belief in a reasonable mind
that a crime has been committed and the respondent is probably
guilty of the crime.

[23]

In the present case, Ronald, a nine-year-old student, died

five days after his teacher, petitioner in this case, allegedly
banged his head against that of his classmate Lorendo. There is
nothing in the records showing petitioners specific denial of the
occurrence of such act. Petitioner simply stated that the headbanging incident happened but [she] did not perpetrate it. In
effect, petitioner admits the occurrence of the head-banging
[24]

incident but denies committing it.

The alleged intervening events before Ronald died, namely:

(a) the consultation with a quack doctor, and (b) the three-day
confinement in the East Avenue Medical Center, are not sufficient

to break the relation of the felony committed and the resulting

injury. Were it not for the head-banging incident, Ronald might not
have needed medical assistance in the first place.

These circumstances which allegedly intervened causing Ronalds

death are evidentiary matters which should be threshed out
during the trial. The following are also matters better left for the
trial court to appreciate: (a) the contents of the death certificate
and autopsy report, (b) the medical records of Ronalds accident in
November 1997, (c) the perception of witnesses Jennilyn Quirong
and Melanie Lugales, and (d) the alleged lack of medical
assistance or medical negligence which caused Ronalds death.

To

repeat,

what

is

determined

during

preliminary

investigation is only probable cause, not proof beyond reasonable

doubt. As implied by the words themselves, probable cause is
[25]

concerned with probability, not absolute or moral certainty.

[26]

Asserting her innocence, petitioner continues to invoke the

disposition of the inquest prosecutor finding insufficient evidence
for the charges against her. As correctly ruled by the DOJ
Secretary, the inquest prosecutor did not dismiss the case but
merely recommended it for further investigation since it was not
proper for inquest and the evidence was then insufficient.
Moreover, petitioners active participation in the preliminary

investigation

without

proceedings

indicates

questioning
petitioners

the

propriety

agreement

of
with

such
the

recommendation of the inquest prosecutor for the further

investigation of the case.

Charges of Homicide and Child Abuse

Petitioners single act of allegedly banging the heads of her

students had two distinct victims, namely Ronald and Lorendo.
Therefore, petitioner has to face prosecution for cruelty to each
victim. For Ronalds death, petitioner is being charged with
homicide under Article 249 of the Revised Penal Code in relation
to Section 10(a), Article VI of RA 7610 punishable by reclusion
[27]

perpetua. However, this does not mean that petitioner is being

charged with the distinct offenses of homicide and child abuse for
[28]

Ronalds death. On the other hand, for her cruelty to Lorendo,

petitioner is being charged with violation of Section 10(a), Article
VI of RA 7610 punishable byprision mayor in its minimum period.
Contrary to petitioners contention, Section 10(a), Article VI
of RA 7610 is clear. This provision reads:
(a) Any person who shall commit any other acts of
child abuse, cruelty or exploitation or be responsible for
other conditions prejudicial to the childs development
including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the

Revised Penal Code, as amended, shall suffer the penalty

of prision mayor in its minimum period.

Ambiguity is a condition of admitting two or more meanings, of

being understood in more than one way, or of referring to two or
more things at the same time. A statute is ambiguous if it is
susceptible to more than one interpretation. In the present case,
petitioner fails to show convincingly the ambiguity in Section
[29]

10(a), Article VI of RA 7610.

Section 3(b), Article VI of RA 7610 defines child abuse as the

maltreatment, whether habitual or not, of the child which includes
physical abuse and cruelty. Petitioners alleged banging of the
heads of Ronald and Lorendo is clearly an act of cruelty.

In a petition for certiorari like this case, the primordial issue is

whether the DOJ Secretary acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. The Court rules that
the DOJ Secretary did not commit grave abuse of discretion in
finding that there is probable cause to charge petitioner of the
crimes of homicide and child abuse. The Court further rules that
the investigating prosecutor did not act with grave abuse of
discretion in securing motu proprio the autopsy report and in not
calling for a clarificatory hearing. This ruling does not diminish in
any way the constitutional right of petitioner to be presumed
innocent until the contrary is proven.

WHEREFORE,
we DENY the
instant
petition.
We AFFIRM the Resolutions of the Secretary of Justice dated 15
September 2000 and 19 April 2001 in I.C. No. 99-6254. No
pronouncement as to costs.

SO ORDERED.
SECTION 5. When warrant of arrest may issue
A. By RTC
SECOND DIVISION
G.R. No. 161083
PEOPLE OF THE PHILIPPINES,
represented by Chief State Prosecutor
JOVENCITO ZUO, State Prosecutor
GERONIMO SY and Prosecution
Attorney IRWIN MARAYA,
Petitioners,

Present:
CARPIO, J., Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

- versus -

HON. BASILIO R. GABO, in his

capacity as Presiding Judge of the
Regional Trial Court of Malolos,
Bulacan, Branch II and WILSON
CUA TING, EDWARD NGO YAO, Promulgated:
WILLY SO TAN and CAROL
August 3, 2010
FERNAN ORTEGA,

Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:

Before this Court is a petition for certiorari[1] under Rule 65 of the Rules of
Court, seeking to set aside the July 24, 2003 Decision [2] and October 3, 2003
Resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 71985.
The facts of the case, as culled from the petition, are as follows:
On May 14, 2001, around 12:15 a.m., a fire broke out inside the plant of
Sanyoware Plastic Products Manufacturing Corporation (Sanyoware) located at
Km. 8,McArthur Highway, Lolomboy, Bocaue, Bulacan. The Sanyoware plant had
four single-storey buildings, enclosed in concrete walls with steel tresses and
galvanized iron sheet roofing.
Sanyoware 2, Warehouse 2, the building that was razed by fire, was located
at the right innermost portion of the plant facing north. Sanyoware occupied the
right, western portion of the said building, while New Unitedware Marketing
Corporation (Unitedware) rented the other half, located at the left, eastern portion.
The building was divided at the center by a tall concrete firewall with a steel gate.
Investigations were conducted by the Philippine 3rd Regional Criminal
Investigation and Detention Group (CIDG) and the Inter Agency Anti-Arson Task
Force (IATF) of the Department of the Interior and Local Government. Pursuant to
the August 1, 2001 letter[4] of CIDG Regional Officer P/Supt. Christopher A. Laxa

to the Secretary of the Justice; the IATFs October 25, 2001 Indorsement; [5] and the
October 8, 2001 letter[6] of Bureau of Fire Protection (BFP) Chief Sr. Supt.
Victoriano C. Remedio to the Prosecutor of the DOJ, the following were accused
of destructive arson before the Office of the Chief State Prosecutor, namely:
Samson Cua Ting, alias Ding Jian Zhi, External Vice-President; Wilson Cua Ting,
Plant Manager; Edward Ngo Yao (Yao), President of New Marketing
Corporation; Willy So Tan, alias Chen Yi Ming, Vice-President for Operations;
Carol Fernan Ortega, Assistant to the External Vice-President; and John Doe and
Peter Doe.
In support of the accusation, petitioner submitted the Sworn Statements of
Richard Madrideo, Jaime Kalaw, Raymund Dy, Chit Chua, Jennifer Chua Reyes,
Shanda Amistad, SPO1 Valeriano Dizon and Inspector Allan N. Barredo.
In his sworn statement,[7] Richard Madrideo, a supervisor at Sanyoware said
that there were two separate sets of fire in the Sanyoware Warehouse and that it
was different from, but occurred simultaneously, with the fire at the Unitedware
Warehouse. Madrideo claimed that respondents Wilson Ting and Yao instructed
him that if anyone should ask about the fire, he should say that the fires did not
break out simultaneously and the cause thereof was defective wiring. In his
additional sworn statement, Madrideo claimed that, days after the fire, he was
threatened by respondents and was being forced to write a sworn statement against
his will.
Jaime Kalaw, a former head of the Maintenance Department of Sanyoware,
alleged in his sworn statement[8] that the cause of the fire could not have been

faulty electrical wiring, because the warehouse was relatively new and that, on the
day of the fire, the plant was not in operation so there was no heavy load of
electricity and all the circuit breakers were shut down. Kalaw noted that a week
before the fire occurred, almost 300 unserviceable molds were transferred to the
burned Sanyoware warehouse. A day before the fire, expensive finish products
were loaded in delivery trucks. In addition, Kalaw alleged that he saw
respondent Yao a day before the fire driving to the Unitedware warehouse. Once
inside, respondent Yao took a rectangular shaped object from his vehicle.
Raymond Dy, a warehouse supervisor at Sanyoware stated in his sworn
statement[9] that a week before the fire occurred, he observed that saleable products
from the burned warehouse were transferred to the Sanyo City Warehouse, while
unusable components from the Sanyo City warehouse were transferred to the
burned warehouse. Dy alleged that the transfer of the products was upon the orders
of Charles Lee, the plant manager of Sanyoware, who allegedly told the employees
to finish the transfers on May 12, 2001.
Chit Chua, an employee at the Accounting Department of Sanyoware,
claimed in her sworn statement[10] that Sanyoware was indebted to a number of
banks and corporations and that Sanyowares outstanding obligations amounted
to P95,000,000.00 to P96,000,000.00. Jennifer Chua Reyes, a secretary at
Sanyoware, alleged in her sworn statement [11] that Sanyoware has an outstanding
loan of P180,000,000.00 to various individuals.
Shanda Amistad, a former stay-in worker at Sanyoware, alleged in her
affidavit[12] that,

around

8:00

a.m.

of

May

13,

2001,

she

saw

respondent Yao driving a Canter truck of Unitedware loaded with goods. Yao went

to Sanyoware three times that day. Amistad found it unusual, since Yao did not
normally go to Sanyoware on Sundays and there were available drivers at that
time. Around 2:00 p.m. of the same day, respondent Wilson Ting arrived.
SPO1 Valeriano Dizon (SPO1 Dizon), a fireman assigned at the Meycauayan
Fire Station, Bulacan, stated in his sworn statement [13] that he conducted the
examination of the fire that occurred on May 14, 2001. He alleged that he took the
statement of the witnesses, but Sr. Supt. Enrique Linsangan of the BFP Regional
Office, Region III, took the witnesses statements from him before he could prepare
the Final Investigation Report (FIR). Thereafter, Sr. Supt. Linsangan summoned
him, Inspector Allan Barredo and BFP C/Ins. Absalon Zipagan, Municipal Fire
Marshall of Bocaue, Bulacan, and showed them the copy of the FIR and made
them sign it. Inspector Barredo, in his affidavit, [14] corroborated SPO1 Dizons
allegation as to how Sr. Supt. Lansangan summoned and ordered them to sign the
FIR.
In their defense, respondents submitted a Counter-Affidavit [15] to refute the
allegations made against them, the significant portions of which read:
7. Principally on the basis of the Salaysay of Richard Madrideo
attached Annex A to the Affidavit of Carol Ortega Fernan dated
September 22, 2001, and on the basis of the Sinumpaang Salaysay
of Ricky A. Hista and of the Karagdagang Salaysay of Bobby Bacang
and on the basis of our inquiry from others, we have good reason to
believe that one claiming to be a representative of CRM Adjustment
Corporation had indeed offered money and jobs to persons to give
perjured statements to make it appear that there was arson and that we
committed it. (The Affidavit of Carol Ortega Fernan, together with the
Salaysay of Richard Madrideo as Annex A thereto, the Sinumpaang
Salaysay of Ricky A. Hista and the Karagdagang Salaysay of Bobby
Bacang were all submitted last September 22, 2001 to the Inter Agency
Anti-Arson Task Force, Office of the Secretary, Department of the
Interior and Local Government.

8. We would like to stress the fact that during the supposed

investigation of this arson case by complainant 3 rd Regional Criminal
Investigation and Detection Group, not one of us was invited by
complainant to answer the allegations of witnesses against us. As far as
we know, complainant did not even make an ocular inspection of the
place where fire occurred.
9. Although the CIDG investigators were allegedly informed by
Mrs. June Go, a clerk of Sanyoware, that nobody could assist the team in
the ocular inspection, said investigators did not proceed to conduct an
ocular inspection when they actually did not need any assistance and
when nobody was preventing them from conducting the inspection.
10. Although Senior Police Officer Regino Raquipiso claims that
when he and SPO1 John Tabago returned to the factory, the ocular
inspection was not pushed through for alleged lack of clearance from the
company owners, there is no showing that said police officers insisted or
demanded to conduct then and there an ocular inspection.
11. Apparently, complainant solely relied on the statements of
Jaime Kalaw, Raymond Dy and Richard Madrideo in deciding to file the
case at bar against us.
12. Richard Madrideo executed a Sinumpaang Salaysay before
SPO4 Regino D. Raquipiso, Jr. last June 29, 2001 wherein he claims,
among others, that there was a simultaneous fire that occurred in two
places in Sanyoware warehouse and in a place in Unitedware. However,
said claim is a blatant lie and perjured statement.
13. In his Salaysay (Annex A to the Affidavit of Carol Ortega
Fernan submitted last September 22, 2001 to the Inter Agency AntiArson Task Force), Richard Madrideo admitted to the fact that he
received the sum of P1,000.00 from Atty. Lugtu and that he subsequently
received another sum of P15,000.00 from Atty. Lugtu. Richard Madrideo
was also given a cellphone and was promised a job. According to said
Salaysay, Atty. Lugtu instructed Madrideo to state, among others, in his
Salaysay that Madrideo saw a simultaneous fire that occurred in two
sides of the plant of Sanyoware.
14. In the Karagdagang Salaysay of Richard Madrideo, he
repudiated his Salaysay by claiming that he was threatened and coerced

by Respondents into executing said Salaysay. Said claim is a blatant

lie. In essence, the story contained in the Karagdagang Salaysay
regarding alleged threats and coercion is nothing but a fabricated lie for
the truth of the matter being that his Salaysay was executed by him
freely and voluntarily last July 30, 2001 at the conference room of
Sanyoware. He was not threatened by anyone. He was neither paid nor
promised any consideration for executing said Salaysay.
15. At any rate, I, Wilson Ting, and the security guards on duty
can attest to the fact that fire started at the warehouse of Unitedware and
that it did not occur simultaneously in different places.
16. In the Sworn Statement of Raymond Dy, he claims that
Richard Madrideo had told him that while the fire was on going at the
Unitedware warehouse, Madrideo saw the fire on top of the stock piles
inside the Sanyoware warehouse aside from that fire at the
Unitedware. However, Jaime Kalaw, who was allegedly informed about
the fire by Raymond Dy, did not mention in his Sworn Statement about
any simultaneous occurrence of the fire in different places. Jaime Kalaw
even further stated in his Sworn Statement that upon his inquiry from the
employees, he was allegedly told that the fire originated from
Unitedware warehouse that spread to Sanyoware warehouse.
17. The allegation of Jaime Kalaw in his Sworn Statement that all
circuit breakers were off position so that there was no flow of electric
current that may cause fire on the warehouses and the allegation of
Raymond Dy that during his roving before the fire, all the lights were off
are not true for the truth being that management had required that some
lights be put on every night in all the warehouses so that they can be well
guarded. Besides, I, Wilson Ting, and the guards on duty can attest to the
fact that there were lights in all the warehouses during the subject
incident.
18. Raymond Dy claims that the keys were usually kept by the
guard on duty, but that on this occasion, he learned from Shandra
Amistad, a stay-in helper, that the keys were then kept by Wilson
Ting. Obviously, said claim is based on hearsay and thus, should not be
given any credence and besides, I, Wilson Ting, deny said claim for the
truth of the matter being that the keys of Sanyoware are kept inside its
main office and are not kept by the guard on duty.

19. Raymond Dy also claims that the lights were 3 to 4 meters

away from the stocks, so that it could be impossible that stocks will be
caught by fire if and when the lights or electrical system leak
down. However, said claim is not true for the fact of the matter is that in
the Unitedware warehouse and in Sanyoware warehouse, there were so
much pile[s] of stocks that some pile[s] almost reached the lights.
20. There is also no truth to the allegation of Raymond Dy that a
week before the fire, saleable finished products from Sanyoware and
Unitedware
were
removed
and
transferred
to Sanyo City warehouse. There is also no truth to the allegation that
non-useable components were removed from Sanyo City and transferred
a week before the fire to the warehouses that got burned. Likewise, there
is no truth that Charles Lee gave a deadline until Saturday (May 12) to
transfer non-useable components to the burned warehouses. Said
allegations are all fabricated lies designed to make it appear that there
was arson.
21. Long before the subject incident, I, Wilson Ting, had ordered
to have the stock piles that were in between the steel gate dividing
Unitedware and Sanyoware warehouses moved, not to have a pathway,
but for the purpose of closing the said steel gate. After said stock piles
were moved, the steel gate was padlocked.
22. There was nothing extraordinary or irregular for several
delivery trucks filled with stocks to stay at the parking area for the night
and to leave very early in the morning to avoid traffic. Considering the
huge volume of deliveries being made regularly by Sanyoware and
Unitedware, delivery trucks with finished products were often times
parked in the evening and during Sundays and holidays at the compound
of Sanyoware and they usually moved out very early in the morning
from Monday to Saturday. Thus, there was nothing extraordinary or
irregular for some delivery trucks with stocks at the parking area on the
night of May 13, 2001, considering especially that it was a Sunday.
23. Being the operations manager of Sanyoware, I have no fixed
time and schedule of work. Even on a Sunday or holiday, I, Wilson
Ting[,] sometimes visit the plant. Thus, there was nothing unusual that I,
Wilson Ting, went to Sanyoware last May 13, 2001. Due to several
incidents of thefts that took place inside the compound of Sanyoware
and because of reports that the delivery trucks at the parking lot might

contain some items that were not included in the inventory for delivery,
I, Wilson Ting, as operations manager, decided to be at Sanyoware on
that Sunday (May 13, 2001) principally to check the goods inside the
delivery trucks. With the help of security guards Bobby Bacang and
Ricky Hista, I, Wilson Ting, checked the goods in all the delivery trucks.
24. Being the President and practically the owner of Unitedware, a
marketing area of Sanyoware and the lessee of Sanyowares warehouse, I,
(Edward Yao), visit Sanyoware and Unitedware from time to time.
25. As my (Edward Yaos) mother-in-law asked from me (Edward
Yao) some chairs and drawers, I (Edward Yao) drove my Pajero and
went to Sanyoware. I (Edward Yao) called up Wilson Ting and informed
him that Ill be getting some chairs and drawers from Sanyoware for my
mother-in-law. From the plant of Sanyoware, I (Edward Yao) got some
chairs and drawers. When said chairs and drawers could not fit in my
(Edward Yao) [P]ajero, I (Edward Yao) left to get a van. I (Edward Yao)
came back later driving a van where the said chairs and drawers were
placed. I (Edward Yao) brought said chairs and drawers to my mother-inlaw who selected and got only some items and so, I (Edward Yao)
returned to Sanyoware the remaining items. Before I (Edward Yao) left
again, Wilson Ting asked me to come back for some chat and so, I
(Edward Yao) returned in my [P]ajero. However, after chatting with
Wilson Ting, I (Edward Yao) left at around 9:00 oclock in the evening of
May 13, 2001. Thus, just before the incident when the fire occurred, I
(Edward Yao) was not in the compound of Sanyoware.
26. There is no truth, however, to the claim that I (Edward Yao)
had entered the warehouse of Unitedware and that I (Edward Yao) got a
rectangular shape black object from my vehicle while inside the
warehouse for the truth of the matter being that I (Edward Yao) did not
enter said warehouse and I (Edward Yao) did not get any object from my
vehicle. I (Edward Yao) got the said chairs and drawers from the plant of
Sanyoware.
27. There is no truth that the company is suffering losses even
before the fire occurred. The loan of Sanyoware with Metrobank is fully
secured by a real estate mortgage wherein the value of the real estate,
together with the improvements thereon that was mortgaged is more or
less double the amount of the said loan and, thus, said real estate value is
more than sufficient to cover said loan of Sanyoware. On the other hand,

the loan with Equitable Bank is also fully secured by a real estate
mortgage.
28. Before the subject incident, Sanyoware was making
profits. There was no year that Sanyoware incurred losses. Its business
was going every year. Prior to the subject incident, the record of
Sanyoware with the banks was quite good.
29. Likewise, prior to the fire, Unitedware was steadily
growing. Every year, its profit continued to go up. Last year, Unitedware
made a huge profit from its operation and it is expected that, despite the
fire that burned the warehouses, Unitedware will still make a good profit
this year.
30. Complainant did not conduct any investigation, except to get
the statements of its witnesses: Madrideo, Kalaw and Dy. Likewise, the
Inter Agency Anti-Arson Task Force did not also conduct any
investigation, except in essence to ask the witnesses of complainant to
identify under oath their sworn statements executed before the
complainant and to ask respondents to submit their sworn statements and
later to identify the same under oath.
31. On the other hand, the elements of Bocaue Fire Station and
OPFM Bulacan BFP Region 3 Intel and Inves Section conducted a
thorough investigation of the origin of the fire. Statements of security
guards Bobby A. Bacang and Mark Anthony Gabay were
taken. Statement of the operations manager Wilson Ting was also
taken. The subject place was inspected. Pictures were taken. Specimens
were obtained from the place where fire occurred and submitted to the
laboratory for examination. Said elements undertook other activities in
line with proper investigation.[16]

After preliminary investigation, then State Prosecutor Carlos C. Pormento

issued a Resolution,[17] the dispositive portion of which reads:
WHEREFORE, premises considered, it is respectfully recommended that
an information for Destructive Arson be filed against Wilson Ting, Edward Yao,
Willy So Tan and Carol Ortega. That the case against Samson Ting be dismissed
for lack of sufficient evidence to indict him under the charge.

As to the charge of Accessories against herein three (3) Fire Officers, let
that case be remanded to TF-IATF for further investigation.[18]

Pursuant to the foregoing Resolution, an Information[19] for Arson was filed

against Wilson Cua Ting, Edward Ngo Yao, Willy So Tan, Carol F. Ortega, John
Doe and Peter Doe, of the crime of arson, to wit:
That on or about May 14, 2001, in the Municipality of Bocaue, Province
of Bulacan, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating and mutually helping one another, acting in
common accord, did then and there, willfully, unlawfully, and feloniously, destroy
the warehouses known as Sanyoware Plastic Products Manufacturing Plant and
New Unitedware Marketing Corporation, including the stocks of raw materials
and finish products, machineries and various equipments by maliciously burning
the same for the purpose of concealing or destroying evidence of another violation
of law, and to conceal bankruptcy to defraud creditors and to collect from
insurance.
CONTRARY TO LAW.[20]

The Information was raffled to Branch XI, Regional Trial Court (RTC) of
Malolos Bulacan, 3rd Judicial Region. The case was docketed as Criminal Case No.
300-47M 2002.
Prior to the arraignment of respondents and before warrants of arrest could be
issued, respondents filed a Motion to Conduct Hearing to Determine Probable
Cause and to Hold in Abeyance the Issuance of Warrant of Arrest Pending
Determination of Probable Cause.[21]
On February 27, 2002, the RTC issued an Order[22] dismissing the case, the
dispositive portion of which reads:
Accordingly, for lack of probable cause, the instant case is DISMISSED as
ordained under Sec. 6, Rule 112 of the Revised Rules of Criminal Procedure.

SO ORDERED.[23]

The RTC applied the equipoise rule in dismissing the case, because of its
observation that the sworn statements submitted by petitioner and respondents
contained contradictory positions.
Aggrieved, petitioner filed a Motion for Reconsideration,[24] which was,
however, denied by the RTC in an Order[25] dated March 25, 2002.
On August 8, 2002, petitioner filed a petition for certiorari before the CA
docketed as CA-G.R. SP No. 71985. On July 24, 2003, the CA issued a Decision
denying the petition, the dispositive portion of which reads:
WHEREFORE, premises considered, there being no grave abuse of
discretion committed by the public respondent, the assailed Orders dated February
27, 2002 and March 25, 2002 are hereby AFFIRMED in toto and the present
petition is hereby DENIED DUE COURSE and is, accordingly, DISMISSED for
lack of merit.
SO ORDERED.[26]

Petitioner then filed a Motion for Reconsideration, which was, however,

denied by the CA in a Resolution[27] dated October 3, 2003.
Hence, this instant petition, with petitioner raising the following ground for
this Courts consideration, to wit:
THE COURT OF APPEALS PATENTLY AND GROSSLY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ADOPTING THE EQUIPOISE RULE IN THE CASE AT BAR.[28]

Before anything else, this Court shall address a procedural issue raised by
respondents that certiorari does not lie considering that such special civil action is
not and cannot be a substitute for an appeal, or more importantly, a lapsed appeal.
[29]

Respondents position is well taken.

It is well settled that a special civil action for certiorari under Rule 65 of the Rules
of Court lies only when, there is no appeal nor plain, speedy and adequate remedy
in the ordinary course of law, and certiorari cannot be allowed when a party to a
case

fails

to

appeal

judgment

despite

the

availability

of

that

remedy, certiorari not being a substitute for a lost appeal.[30]

A perusal of the records will show that petitioner received the assailed CA
Resolution on October 10, 2003. From that time on, petitioner had 15 days, or until
October 25, 2003, to file an appeal by way of a petition for review under Rule 45
of the Rules of Court. However, instead of filing the appeal on the last day of
reglementary period, petitioner simply allowed it to lapse. Clearly, petitioner had
an appeal, which under the circumstances was the adequate remedy in the ordinary
course of law. On this point alone, petitioners petition must be dismissed, as herein
petition is without a doubt a substitute for a lost appeal. In any case, even if this
Court were to set aside the procedural infirmity of the petition, the same still fails
on the merits.

In a petition for certiorari, the court must confine itself to the issue of whether or
not respondent court lacked or exceeded its jurisdiction or committed grave abuse
of discretion.[31]
It is well to remember that there is a distinction between the preliminary
inquiry, which determines probable cause for the issuance of a warrant of arrest,
and the preliminary investigation proper, which ascertains whether the offender
should be held for trial or be released. The determination of probable cause for
purposes of issuing a warrant of arrest is made by the judge. The preliminary
investigation proper whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged is the function of the investigating
prosecutor.[32]
Section 6, Rule 112 of the Revised Rules of Court provides:
SEC 6. When warrant of arrest may issue.
xxxx
(a) By the Regional Trial Court. Within (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 of
the accused had already been arrested, pursuant to a warrant issued by the judge
who conducted 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.[33]

As enunciated in Baltazar v. People,[34] the task of the presiding judge when

the Information is filed with the court is first and foremost to determine the
existence or non-existence of probable cause for the arrest of the accused. Probable
cause is such set of facts and circumstances as would lead a reasonably discreet
and prudent man to believe that the offense charged in the Information, or any
offense included therein, has been committed by the person sought to be arrested.
In determining probable cause, the average man weighs the facts and
circumstances without resorting to the calibrations of the rules of evidence of
which he has no technical knowledge. He relies on common sense. A finding of
probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed by the accused. Probable
cause demands more than suspicion; it requires less than evidence that would
justify conviction.[35] The purpose of the mandate of the judge to first determine
probable cause for the arrest of the accused is to insulate from the very start those
falsely charged with crimes from the tribulations, expenses and anxiety of a public
trial.[36]
Based on the foregoing, the RTC acted within its jurisdiction when it
dismissed the case on lack of probable cause as the same is sanctioned under
Section 6, Rule 112 of the Rules of Court. The penultimate question to be resolved
then is was such exercise of jurisdiction attended by grave abuse of discretion?
Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or in other words where the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive

duty or to a virtual refusal to perform the duty enjoined or to act at all in

contemplation of law.[37]
Petitioners main argument hinges on the propriety of the RTCs use of the
equipoise rule in dismissing the case which was affirmed by the CA. Specifically,
petitioner contends that the equipoise rule cannot be used by the RTC merely after
the filing of the information, thus:
Since there must be a proper determination of the presence or absence of
evidence sufficient to support a conviction, i.e., proof beyond reasonable
doubt, the equipoise rule shall properly come into play when the parties have
already concluded the presentation of their respective evidence. It is only at this
stage, not at any prior time and certainly not merely after the filing of the
information, can the trial court assess and weigh the evidence of the parties and
thereafter determine which party has the preponderance of evidence. If both
parties fail to adduce evidence in support of their respective cases, an adverse
decision would be rendered against the party which has the burden of proof.[38]

Under the equipoise rule, where the evidence on an issue of fact is in equipoise, or
there is doubt on which side the evidence preponderates, the party having the
burden of proof loses. The equipoise rule finds application if the inculpatory facts
and circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused and the other consistent with his guilt,
for then the evidence does not suffice to produce a conviction.[39]
To this Courts mind, the reliance of the RTC in the equipoise rule is misplaced as a
review of previous Court decisions would show that the position of petitioner is in
fact correct. The equipoise rule has been generally applied when the parties have
already concluded the presentation of their respective evidence as shown in a
plethora of cases such as Abarquez v. People,[40] Tin v. People[41] and People v.
Leano.[42]

While the use of the equipoise rule was not proper under the circumstances
of the case at bar, the same, however, does not equate to an abuse of discretion on
the part of the RTC, but at most, merely an error of judgment. More importantly,
this Court finds that the RTC had in fact complied with the requirement under the
rules of personally evaluating the resolution of the prosecutor and its supporting
evidence and that the assailed Order was arrived at after due consideration of the
merits thereto, thus:
By this statement of Madrideo, it would appear fire broke out in two (2)
places, which, presupposes or implies that some sort of incendiary or flammable
substances were ignited to start the fire. The investigation conducted by the
Bocaue Fire Station, however, appears to have ruled out the use of incendiary or
inflammable substances. Annex E of the Complaint, Chemistry Report No. C054-2001 of the Bulacan Provincial Crime Laboratory Office indicated that the
specimen submitted by the Bocaue Fire Station in connection with the fire in
question was found negative of any flammable substance. This finding was never
debunked or repudiated, which makes the misgivings of the police investigators
about its veracity unfounded. Thus, pitted against the allegation of Madrideo, this
physical evidence puts the truth of the latter in grave doubt. Physical evidence is
evidence of the highest order. It speaks more eloquently than a hundred witnesses
(People vs. Sacabin, 57 SCRA 707). Physical evidence are mute but eloquent
manifestations of truth and they rate high in our hierarchy of trustworthy evidence
(People vs. Uycoque, 124 SCRA 769).
At this stage, it must be stressed that the Fire Investigation Report
prepared by the Bocaue Fire Station (Annex D) and the Certification made by the
Provincial Fire Marshall, Absalon Zipagan, point to the faulty wiring as the cause
or origin (sic) of the conflagration at bar. The Office the Regional Fire Marshall
also came out with the same findings. (Annexes B and C) All the above reports
and investigation stand as the official report of the fire in question. Contrary to the
Resolution, we find nothing in the respective sworn statements of Supt. Absalon
Zipagan, Sr. Supt. Enrique Linsangan and Insp. Allan Barredo that deviated much
less repudiated the aforesaid reports and findings. Far from impugning their own
investigation, the three (3) fire officials simply narrated the steps that were taken
at the provincial and regional levels in the investigation of the Sanyo fire.
Needless to state, the investigation reports and findings carry the presumption that
official duty has been regularly performed. A mere affidavit cannot overcome this
presumption. (Transport Corporation vs. CA, 241 SCRA 77) Government officials

are presumed to perform their functions with regularity and strong evidence is
necessary to rebut this presumption. (Tata vs. Garcia, Jr., 243 SCRA 235)
The significance of the above reports and findings cannot be overlooked.
Note that F/CINSP. Absalon Zipagan, F/Insp. Allan Barredo and SPO1 Valeriano
Dizon, Jr. were included as accessories in the complaint by the DILG, Inter
Agency Anti-Arson Task Force but the State Prosecutor did not rule on their
liability, which thus enhances all the more the probative value of the said reports
and findings.
This Court, likewise, noted that although the Inter Agency Anti Arson Task
Force was quick to rule out faulty electrical wiring, it did note arrive at a definite
theory how the fire started, leaving everything hanging in mid-air.
This Court is also hard put to make out a case from the actuations of some
of the accused before, during and after the fire. For one, the presence of Wilson
Ting and Edward Yao in the Sanyo premises before the fire is not criminal per se.
Both apparently have their own explanations, and following the equipoise rule as
elucidated above, no adverse implications can be inferred therefrom. So are with
the alleged utterances made by the accused during and after the fire, having been
said in the midst of tenseful happening these can be attributed to their desperation
over the loss of some of their properties. And, consistent with the equipoise rule,
if ever said statements were uttered at all, they cannot serve as evidence against
the accused for the offense charged.[43]

The conclusions of the RTC which led to the dismissal of the information
against respondents cannot, in any sense, be characterized as outrageously wrong
or manifestly mistaken, or whimsically or capriciously arrived at. The worst that
may perhaps be said of it is that it is fairly debatable, and may even be possibly
erroneous. But they cannot be declared to have been made with grave abuse of
discretion.[44]
Based on Section 6, Rule 112 of the Rules of Court, the RTC judge, upon the
filing of an Information, has the following options: (1) dismiss the case if the
evidence on record clearly failed to establish probable cause; (2) if he or she finds
probable cause, issue a warrant of arrest; and (3) in case of doubt as to the

existence of probable cause, order the prosecutor to present additional evidence

within five days from notice, the issue to be resolved by the court within thirty
days from the filing of the information.[45]
The judge is required to 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. [46] To this Courts mind, the RTC
had complied with its duty of personally evaluating the supporting evidence of the
prosecution before arriving at its decision of dismissing the case against
respondents.
While petitioner mainly argues against the use of the equipoise rule, it
cannot escape this Courts attention that ultimately petitioner is asking this Court to
resolve the propriety of the dismissal of the case by the RTC, on the basis of the
Information and the attached documents it had filed. This Court however, will
defer to the findings of fact of the RTC, which are accorded great weight and
respect, more so because the same were affirmed by the CA. In addition, it bears to
stress that the instant case is a petition for certiorari where questions of fact are not
entertained.[47]
The sole office of writ of certiorari is the correction of errors of jurisdiction,
including the commission of grave abuse of discretion amounting to lack of
jurisdiction and does not include correction of public respondents evaluation of the
evidence and factual findings based thereon.[48] An error of judgment that the court
may commit in the exercise of its jurisdiction is not correctible through the original
special civil action of certiorari.[49]

In any case, the dismissal of herein petition does not preclude petitioner
from availing of any other action it deems appropriate under the premises. Double
jeopardy cannot be invoked where the accused has not been arraigned and it was
upon his express motion that the case was dismissed. [50] Moreover, while the
absence of probable cause for the issuance of a warrant of arrest is a ground for the
dismissal of the case, the same does not result in the acquittal of the said accused.
[51]

WHEREFORE, premises considered, the petition is DISMISSED. The

July 24, 2003 Decision and October 3, 2003 Resolution of the Court of Appeals, in
CA-G.R. SP No. 71985, are AFFIRMED.
SO ORDERED.

SECTION 6. When accused lawfully arrested without warrant.

JOSE ANTONIO C. LEVISTE,
Petitioner,

G.R. No. 182677

Present:

- versus HON. ELMO M. ALAMEDA, HON.

RAUL M. GONZALEZ, HON.
EMMANUEL Y. VELASCO,
HEIRS OF THE LATE RAFAEL
DE LAS ALAS,
Respondents.

CARPIO MORALES, Chairperson,

NACHURA,*
BERSAMIN,
ABAD,** and
VILLARAMA, JR., JJ.
Promulgated:
August 3, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed
on May 30, 2008 the August 30, 2007 Decision[1] and the April 18, 2008
Resolution[2] of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the

trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the
motion for reconsideration, respectively.
Petitioner was, by Information[3] of January 16, 2007, charged with homicide for
the death of Rafael de las Alas on January 12, 2007 before the Regional Trial Court
(RTC) of Makati City. Branch 150 to which the case was raffled, presided by Judge
Elmo Alameda, forthwith issued a commitment order [4] against petitioner who was
placed under police custody while confined at the Makati Medical Center.[5]
After petitioner posted a P40,000 cash bond which the trial court approved,[6] he
was released from detention, and his arraignment was set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of the
public prosecutor, an Urgent Omnibus Motion [7] praying, inter alia, for the
deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper offense.
The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring
petitioners arraignment and allowing the prosecution to conduct a reinvestigation
to determine the proper offense and submit a recommendation within 30 days from
its inception, inter alia; and (2) Order of January 31, 2007[9] denying
reconsideration of the first order. Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion

before the trial court to defer acting on the public prosecutors recommendation on
the proper offense until after the appellate court resolves his application for
injunctive reliefs, or alternatively, to grant him time to comment on the prosecutors
recommendation and thereafter set a hearing for the judicial determination of

probable cause.[10] Petitioner also separately moved for the inhibition of Judge
Alameda with prayer to defer action on the admission of the Amended Information.
[11]

The trial court nonetheless issued the other assailed orders, viz: (1) Order
of February 7, 2007[12] that admitted the Amended Information[13] for murder and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
2007[14] which set the arraignment on February 13, 2007. Petitioner questioned
these two orders via supplemental petition before the appellate court.
The appellate court dismissed petitioners petition, hence, his present
petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE

THE REINVESTIGATION OF THE CRIMINAL CASE BELOW
WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF
APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE
HAVING NO BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOS
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT,
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS
HONORABLE COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN
HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY
BASED ON MERE SPECULATIONS AND CONJECTURES,

WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE

BEING
ADDUCED
DURING
THE
REINVESTIGATION,
RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.[15] (emphasis in the
original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed through
during which petitioner refused to plead, drawing the trial court to enter a plea of
not guilty for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for
Admission to Bail Ex Abundanti Cautela[16] which the trial court, after hearings
thereon, granted by Order of May 21, 2007,[17] it finding that the evidence of guilt
for the crime of murder is not strong. It accordingly allowed petitioner to post bail
in the amount of P300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate court,
went on to try petitioner under the Amended Information. By Decision of January
14, 2009, the trial court found petitioner guilty of homicide, sentencing him to
suffer an indeterminate penalty of six years and one day of prision mayor as
minimum to 12 years and one day of reclusion temporal as maximum. From the
Decision, petitioner filed an appeal to the appellate court, docketed as CA-G.R. CR
No. 32159, during the pendency of which he filed an urgent application for
admission to bail pending appeal. The appellate court denied petitioners application
which this Court, in G.R. No. 189122, affirmed by Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded.[18]

Waiver on the part of the accused must be distinguished from mootness

of the petition, for in the present case, petitioner did not, by his active participation
in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge against him, provided that he
raises them before entering his plea. The court shall resolve the matter as early as practicable but
not later than the start of the trial of the case.

By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior to his arraignment.
During the arraignment onMarch 21, 2007, petitioner refused to enter his plea since
the issues he raised were still pending resolution by the appellate court, thus
prompting the trial court to enter a plea of not guilty for him.
The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary investigation applies only if
he voluntarily enters his plea and participates during trial, without previously
invoking his objections thereto.[19] There must be clear and convincing proof that
petitioner had an actual intention to relinquish his right to question the existence of
probable cause. When the only proof of intention rests on what a party does, his act
should be so manifestly consistent with, and indicative of, an intent to voluntarily
and unequivocally relinquish the particular right that no other explanation of his
conduct is possible.[20]

From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite resolution
of the objections he so timely invoked. Other than its allegation of active
participation, the OSG offered no clear and convincing proof that petitioners
participation in the trial was unconditional with the intent to voluntarily and
unequivocally abandon his petition. In fact, on January 26, 2010, petitioner still
moved for the early resolution of the present petition.[21]
Whatever delay arising from petitioners availment of remedies against the
trial courts Orders cannot be imputed to petitioner to operate as a valid waiver on
his part. Neither can the non-issuance of a writ of preliminary injunction be
deemed as a voluntary relinquishment of petitioners principal prayer. The nonissuance of such injunctive relief only means that the appellate court did not
preliminarily find any exception[22] to the long-standing doctrine that injunction
will not lie to enjoin a criminal prosecution.[23] Consequently, the trial of the case
took its course.
The petition is now moot, however, in view of the trial courts rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would be
of no practical use or value.[24]
The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the present
petition.Assuming that there is ground[25] to annul the finding of probable cause for
murder, there is no practical use or value in abrogating the concluded proceedings
and retrying the case under the original Information for homicide just to arrive,
more likely or even definitely, at the same conviction of homicide. Mootness

would have also set in had petitioner been convicted of murder, for proof beyond
reasonable doubt, which is much higher than probable cause, would have been
established in that instance.
Instead, however, of denying the petition outright on the ground of
mootness, the Court proceeds to resolve the legal issues in order to formulate
controlling principles to guide the bench, bar and public.[26] In the present case,
there is compelling reason to clarify the remedies available before and after the
filing of an information in cases subject of inquest.
After going over into the substance of the petition and the assailed issuances,
the Court finds no reversible error on the part of the appellate court in finding no
grave abuse of discretion in the issuance of the four trial court Orders.
In his first assignment of error, petitioner posits that the prosecution has no
right under the Rules to seek from the trial court an investigation or reevaluation of
the case except through a petition for review before the Department of Justice
(DOJ). In cases when an accused is arrested without a warrant, petitioner contends
that the remedy of preliminary investigation belongs only to the accused.
The contention lacks merit.
Section 6,[27] Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint or
information may be filed by a prosecutorwithout need of such
investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor,
the complaint may be filed by the offended party or a peace officer
directly with the proper court on the basis of the affidavit of the offended
party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask
for a preliminary investigation in accordance with this Rule, but he must
sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, in the presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be terminated within
fifteen (15) days from its inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)

A preliminary investigation is required before the filing of a complaint or

information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine. [28] As an exception, the rules
provide that there is no need for a preliminary investigation in cases of a lawful
arrest without a warrant[29] involving such type of offense, so long as an inquest,
where available, has been conducted.[30]
Inquest is defined as an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained without
the benefit of a warrant of arrest issued by the court for the purpose of determining
whether said persons should remain under custody and correspondingly be charged
in court.[31]
It is imperative to first take a closer look at the predicament of both the
arrested person and the private complainant during the brief period of inquest, to
grasp the respective remedies available to them before and after the filing of a
complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN
COURT, the private complainant may proceed in coordinating with the arresting

officer and the inquest officer during the latters conduct of inquest. Meanwhile, the
arrested person has the option to avail of a 15-day preliminary investigation,
provided he duly signs a waiver of any objection against delay in his delivery to
the proper judicial authorities under Article 125 of the Revised Penal Code. For
obvious reasons, this remedy is not available to the private complainant since he
cannot waive what he does not have. The benefit of the provisions of Article 125,
which requires the filing of a complaint or information with the proper judicial
authorities within the applicable period,[32] belongs to the arrested person.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of
an information in court or the immediate release of the arrested person. [33] Notably,
the rules on inquest do not provide for a motion for reconsideration.[34]
Contrary to petitioners position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available in cases
subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by petition
by a proper party under such rules as the Department of Justice may prescribe.
[35]

The rule referred to is the 2000 National Prosecution Service Rule on Appeal,
[36]
Section 1 of which provides that the Rule shall apply to appeals from
resolutions x x x in cases subject of preliminary investigation/ reinvestigation. In
cases subject of inquest, therefore, the private party should first avail of a
preliminary investigation or reinvestigation, if any, before elevating the matter to
the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a preliminary
investigation.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the

rules yet provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present case,
a similar right to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor.[37] The private
complainant in a criminal case is merely a witness and not a party to the case and
cannot, by himself, ask for the reinvestigation of the case after the information had
been filed in court, the proper party for that being the public prosecutor who has
the control of the prosecution of the case.[38] Thus, in cases where the private
complainant is allowed to intervene by counsel in the criminal action, [39] and is
granted the authority to prosecute,[40] the private complainant, by counsel and with
the conformity of the public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions and
to ensure that the information is sufficient in form and substance.[41]

x x x Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge
himself but, again, realistically it will be the prosecutor who can

initially determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as offenses
includible in the offense charged be taken into account. It necessarily
follows, therefore, that the prosecutor can and should institute
remedial measures[.][42] (emphasis and underscoring supplied)

The prosecution of crimes appertains to the executive department of the

government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion the discretion of what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best appreciated
by prosecutors.[43]
The prosecutions discretion is not boundless or infinite, however.[44] The
standing principle is that once an information is filed in court, any remedial
measure such as a reinvestigation must be addressed to the sound discretion of the
court. Interestingly, petitioner supports this view.[45] Indeed, the Court ruled in one
case that:
The rule is now well settled that once a complaint or information is
filed in court, any disposition of the case, whether as to its dismissal or
the conviction or the acquittal of the accused, rests in the sound discretion
of the court. Although the prosecutor retains the direction and control of
the prosecution of criminal cases even when the case is already in court,
he cannot impose his opinion upon the tribunal. For while it is true that
the prosecutor has the quasi-judicial discretion to determine whether or
not a criminal case should be filed in court, once the case had already
been brought therein any disposition the prosecutor may deem proper
thereafter
should be addressed to the court for its consideration and approval. The
only qualification is that the action of the court must not impair the
substantial rights of the accused or the right of the People to due process
of law.

xxxx
In such an instance, before a re-investigation of the case may be
conducted by the public prosecutor, the permission or consent of the
court must be secured. If after such re-investigation the prosecution finds
a cogent basis to withdraw the information or otherwise cause the
dismissal of the case, such proposed course of action may be taken but
shall likewise be addressed to the sound discretion of the court.
[46]
(underscoring supplied)

While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to
be preferred to a reinvestigation, the Court therein recognized that a trial court
may,where the interest of justice so requires, grant a motion for reinvestigation of a
criminal case pending before it.
Once the trial court grants the prosecutions motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm of the
Government. Having brought the case back to the drawing board, the prosecution
is thus equipped with discretion wide and far reaching regarding the disposition
thereof,[48] subject to the trial courts approval of the resulting proposed course of
action.
Since a reinvestigation may entail a modification of the criminal information
as what happened in the present case, the Courts holding is bolstered by the rule on
amendment of an information under Section 14, Rule 110 of the Rules of Court:
A complaint or information may be amended, in form or in
substance, without leave of court, at any time before the accused
enters his plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the
nature of the offense charged in or excludes any accused from the

complaint or information, can be made only upon motion by the

prosecutor, with notice to the offended party and with leave of court. The
court shall state its reasons in resolving the motion and copies of its order
shall be furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been
made in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the
proper offense in accordance with section 11, Rule 119, provided the
accused would not be placed in double jeopardy. The court may require
the witnesses to give bail for their appearance at the trial. (emphasis
supplied)

In fine, before the accused enters a plea, a formal or substantial amendment of the
complaint or information may be made without leave of court. [49] After the entry of
a plea, only a formal amendment may be made but with leave of court and only if
it does not prejudice the rights of the accused. After arraignment, a substantial
amendment is proscribed except if the same is beneficial to the accused.[50]
It must be clarified though that not all defects in an information are curable by
amendment prior to entry of plea. An information which is void ab initio cannot be
amended to obviate a ground for quashal. [51] An amendment which operates to vest
jurisdiction upon the trial court is likewise impermissible.[52]

Considering the general rule that an information may be amended even in

substance and even without leave of court at any time before entry of plea, does it
mean that the conduct of a reinvestigation at that stage is a mere superfluity?
It is not.

Any remedial measure springing from the reinvestigation be it a complete

disposition or an intermediate modification [53] of the charge is eventually addressed
to the sound discretion of the trial court, which must make an independent
evaluation or assessment of the merits of the case. Since the trial court would
ultimately make the determination on the proposed course of action, it is for the
prosecution to consider whether a reinvestigation is necessary to adduce and
review the evidence for purposes of buttressing the appropriate motion to be filed
in court.
More importantly, reinvestigation is required in cases involving a substantial
amendment of the information. Due process of law demands that no substantial
amendment of an information may be admitted without conducting another or a
new preliminary investigation. In Matalam v. The 2nd Division of the
Sandiganbayan,[54] the Court ruled that a substantial amendment in an information
entitles an accused to another preliminary investigation, unless the amended
information contains a charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information from
homicide to murder is considered a substantial amendment, which would make it
not just a right but a duty of the prosecution to ask for a preliminary investigation.
The Court answers in the affirmative.
A substantial amendment consists of the recital of facts constituting
the offense charged and determinative of the jurisdiction of the
court. All other matters are merely of form.The following have been held
to be mere formal amendments: (1) new allegations which relate only to
the range of the penalty that the court might impose in the event of
conviction; (2) an amendment which does not charge another offense
different or distinct from that charged in the original one; (3) additional
allegations which do not alter the prosecutions theory of the case so as to
cause surprise to the accused and affect the form of defense he has or will
assume; (4) an amendment which does not adversely affect any
substantial right of the accused; and (5) an amendment that merely adds

specifications to eliminate vagueness in the information and not to

introduce new and material facts, and merely states with additional
precision something which is already contained in the original
information and which adds nothing essential for conviction for the crime
charged.
The test as to whether a defendant is prejudiced by the amendment is
whether a defense under the information as it originally stood would be
available after the amendment is made, and whether any evidence
defendant might have would be equally applicable to the information in
the one form as in the other. An amendment to an information which
does not change the nature of the crime alleged therein does not affect the
essence of the offense or cause surprise or deprive the accused of an
opportunity to meet the new averment had each been held to be one of
form and not of substance.[55] (emphasis and underscoring supplied)

Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another preliminary
investigation. Notatu dignum is the fact that both the original Information and the
amended Information in Matalam were similarly charging the accused with
violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
In one case,[56] it was squarely held that the amendment of the Information
from homicide to murder is one of substance with very serious consequences.
[57]

The amendment involved in the present case consists of additional averments of

the circumstances of treachery, evident premeditation, and cruelty, which qualify
the offense charged from homicide to murder. It being a new and material element
of the offense, petitioner should be given the chance to adduce evidence on the
matter. Not being merely clarificatory, the amendment essentially varies the
prosecutions original theory of the case and certainly affects not just the form but
the weight of defense to be mustered by petitioner.

The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v. Cajigal,
[59]
wherein the amendment of the caption of the Information from homicide to
murder was not considered substantial because there was no real change in the
recital of facts constituting the offense charged as alleged in the body of the
Information, as the allegations of qualifying circumstances were already clearly
embedded in the original Information. Buhat pointed out that the original
Information for homicide already alleged the use of superior strength,
while Pacoy states that the averments in the amended Information for murder are
exactly the same as those already alleged in the original Information for
homicide. None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the fact
that what was conducted in the present case was a reinvestigation does not
invalidate the substantial amendment of the Information. There is no substantial
distinction between a preliminary investigation and a reinvestigation since both are
conducted in the same manner and for the same objective of determining whether
there exists 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.[60] What is essential is that petitioner was placed on guard to defend
himself from the charge of murder[61] after the claimed circumstances were made
known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v.
Court of Appeals states that the rules do not even require, as a condition sine qua
non to the validity of a preliminary investigation, the presence of the respondent as
long as efforts to reach him were made and an opportunity to controvert the
complainants evidence was accorded him.[62]

In his second assignment of error, petitioner basically assails the hurried

issuance of the last two assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the first two trial court
Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the course
of the principal case unless a temporary retraining order or a writ of preliminary
injunction has been issued.[63] The appellate court, by Resolution
of February 15, 2007,[64] denied petitioners application for a temporary restraining
order and writ of preliminary injunction. Supplementary efforts to seek injunctive
reliefs proved futile.[65] The appellate court thus did not err in finding no grave
abuse of discretion on the part of the trial court when it proceeded with the case
and eventually arraigned the accused on March 21, 2007, there being no injunction
order from the appellate court. Moreover, petitioner opted to forego appealing to
the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment.[66]
Regarding petitioners protestations of haste, suffice to state that the pace in
resolving incidents of the case is not per se an indication of bias. In Santos-Concio
v. Department of Justice,[67] the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of
functions. For ones prompt dispatch may be anothers undue haste. The
orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to each
case.
The presumption of regularity includes the public officers official
actuations in all phases of work. Consistent with such presumption, it was
incumbent upon petitioners to present contradictory evidence other than a
mere tallying of days or numerical calculation. This, petitioners failed to

discharge. The swift completion of the Investigating Panels initial task

cannot be relegated as shoddy or shady without discounting the
presumably regular performance of not just one but five state prosecutors.
[68]

There is no ground for petitioners protestations against the DOJ Secretarys sudden
designation of Senior State Prosecutor Emmanuel Velasco as Acting City
Prosecutor of Makati City for the present case [69] and the latters conformity to the
motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor
who will conduct the reinvestigation or preliminary investigation.[70] There is a
hierarchy of officials in the prosecutory arm of the executive branch headed by the
Secretary of Justice[71] who is vested with the prerogative to appoint a special
prosecutor or designate an acting prosecutor to handle a particular case, which
broad power of control has been recognized by jurisprudence.[72]
As for the trial courts ignoring the DOJ Secretarys uncontested statements to
the media which aired his opinion that if the assailant merely intended to maim and
not to kill the victim, one bullet would have sufficed the DOJ Secretary reportedly
uttered that the filing of the case of homicide against ano against Leviste lintek
naman eh I told you to watch over that case there should be a report about the
ballistics, about the paraffin, etc., then thats not a complete investigation, thats why
you should use that as a ground no abuse of discretion, much less a grave one, can
be imputed to it.
The statements of the DOJ Secretary do not evince a determination to file
the Information even in the absence of probable cause.[73] On the contrary, the
remarks merely underscored the importance of securing basic investigative reports
to support a finding of probable cause. The original Resolution even recognized

that probable cause for the crime of murder cannot be determined based on the
evidence obtained [u]nless and until a more thorough investigation is
conducted and eyewitness/es [is/]are presented in evidence[.][74]
The trial court concluded that the wound sustained by the victim at the back of his
head, the absence of paraffin test and ballistic examination, and the handling of
physical evidence,[75] as rationalized by the prosecution in its motion, are sufficient
circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail
hearings does not affect the prior determination of probable cause because, as the
appellate court correctly stated, the standard of strong evidence of guilt which is
sufficient to deny bail to an accused is markedly higher than the standard of
judicial probable cause which is sufficient to initiate a criminal case.[76]
In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced during
the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause
exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has
the quasi-judicial authority to determine whether or not a criminal case must be
filed in court. Whether that function has been correctly discharged by the public

prosecutor, i.e., whether he has made a correct ascertainment of the existence of

probable cause in a case, is a matter that the trial court itself does not and may not
be compelled to pass upon.[77]
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted, there is necessity
for placing the accused under custody in order not to frustrate the ends of justice. If
the judge finds no probable cause, the judge cannot be forced to issue the arrest
warrant.[78] Paragraph (a), Section 5,[79] Rule 112 of the Rules of Court outlines the
procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a
mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed with
the court is first and foremost to determine the existence or non-existence of
probable cause for the arrest of the accused.[80]
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. But the judge is not required to personally examine
the complainant and his witnesses. Following established doctrine and
procedure, he shall (1) personally evaluate the report and the supporting
documentssubmitted by the prosecutor regarding the existence of
probable cause, and on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if he is not
satisfied that probable cause exists, he may disregard the prosecutors
report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause.
[81]
(emphasis and underscoring supplied)

The rules do not require cases to be set for hearing to determine probable cause for
the issuance of a warrant of arrest of the accused before any warrant may be
issued.[82] Petitioner thus cannot, as a matter of right, insist on a hearing for judicial
determination of probable cause. Certainly, petitioner cannot determine beforehand
how cursory or exhaustive the [judge's] examination of the records should be
[since t]he extent of the judges examination depends on the exercise of his sound
discretion as the circumstances of the case require.[83] In one case, the Court
emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure
are mandatory, and as such, the judge must determine the presence or
absence of probable cause within such periods.The Sandiganbayans
determination of probable cause is made ex parte and is summary in
nature, not adversarial. The Judge should not be stymied and
distracted from his determination of probable cause by needless
motions for determination of probable cause filed by the accused.
[84]
(emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no

circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid conduct
of
reinvestigation. It
is
not
material
that
no
new
or evidence was presented during the reinvestigation of the case. It should

matter

be stressed that reinvestigation, as the word itself implies, is merely a repeat

investigation of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and reevaluate its findings and the evidence already submitted.[85]

Moreover, under Rule 45 of the Rules of Court, only questions of law may
be raised in, and be subject of, a petition for review on certiorari since this Court is
not a trier of facts. The Court cannot thus review the evidence adduced by the
parties on the issue of the absence or presence of probable cause, as there exists no
exceptional circumstances to warrant a factual review.[86]
In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to resolving only
errors of jurisdiction. It is not to stray at will and resolve questions and issues
beyond its competence, such as an error of judgment.[87] The courts duty in the
pertinent case is confined to determining whether the executive and judicial
determination of probable cause was done without or in excess of jurisdiction or
with grave abuse of discretion. Although it is possible that error may be committed
in the discharge of lawful functions, this does not render the act amenable to
correction and annulment by the extraordinary remedy of certiorari, absent any
showing of grave abuse of discretion amounting to excess of jurisdiction.[88]

WHEREFORE, the petition is DENIED. The assailed Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.

SECTION 7-8
ATTY.
ERNESTO
A.
TABUJARA
III
and
CHRISTINE S. DAYRIT,
Petitioners,

G.R. No. 175162

Present:

YNARES-SANTIAGO, J.,
Chairperson,

- versus -

CARPIO,*
AZCUNA,**
CHICO-NAZARIO, and
PEOPLE
THE PHILIPPINESand
DAISY AFABLE,

OF

NACHURA, JJ.

Respondents.
Promulgated:

October 29, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

This petition assails the 24 February 2004 Decision of the

Court of Appeals in CA-G.R. SP No. 63280 denying petitioners
petition for review and directing the Municipal Trial Court of
Meycauayan, Bulacan, Branch 11, to proceed with the trial of
Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23
October 2006Resolution denying the motion for reconsideration.

The antecedent facts are as follows:

On 17 September 1999, respondent Daisy Dadivas-Afable

simultaneously filed two criminal complaints against petitioners
for Grave Coercion and Trespass to Dwelling. The complaints read,
thus:

Art. 286 (Grave Coercion)

That on the 14th day of September 1999 at around 6:00 oclock in

the morning more or less, in Brgy. Iba, Municipality of Meycauayan,
Province of Bulacan, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused without
authority of law, by conspiring, confederating and mutually helping to
(sic) one another, did then and there willfully, unlawfully and

feloniously forced to go with them one DAISY DADIVAS-AFABLE and

against the latters will.

Art. 280, par. 2 (Trespass to Dwelling)

That on the 14th day of September 1999 at around 6:00 oclock in

the morning more or less, in Brgy. Iba, Municipality of Meycauayan,
Province of Bulacan, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused being
then a (sic) private persons, by conspiring, confederating and mutually
helping to (sic) one another, did then and there willfully, unlawfully and
feloniously enter the house owned by one DAISY DADIVAS-AFABLE by
opened the gate and against the latters will. [1]

On 18 October 1999, petitioners filed their Joint CounterAffidavit.[2] Thereafter, or on 21 December 1999, petitioner
Tabujara filed a Supplemental Counter-Affidavit. [3]

Petitioners denied the allegations against them. They argued

that on 14 September 1999, they went to the house of
respondent to thresh out matters regarding some missing pieces
of jewelry. Respondent was a former employee of Miladay Jewels,
Inc., a company owned by the Dayrits and who was then being
administratively investigated in connection with missing
jewelries. Despite several summons to appear, respondent went
on AWOL (absence without official leave).

Judge Calixtro O. Adriatico of the Municipal Trial Court of

Meycauayan, Bulacan, Branch II, conducted the preliminary
examination. On 7 January 2000, he issued an Order dismissing
the complaints for lack of probable cause, thus:

After a careful perusal of the allegation setforth in the complaintaffidavit, taking into consideration the allegation likewise setforth in
the counter-affidavit submitted by the respondents and that of their
witnesses, the Court finds no probable cause to proceed with trial on
the merits of the above-entitled cases.

The Court believes and so holds that the instant complaints are
merely leverage to the estafa[4] case already filed against private
complainant herein Daisy Afable by the Miladay Jewels Inc. wherein
respondent Atty. Tabujara III is its legal counsel; while respondent
Dayrit appears to be one of the officers of the said company.

As could be gleaned from the record, private complainant herein

Daisy Afable is being charged with the aforestated estafa case for
having allegedly embezzled several pieces of jewelry from the Miladay
Jewels Inc., worth P2,177,156.00.

WHEREFORE, let these cases be dismissed for lack of probable

cause.

[5]

Respondent filed a Motion for Reconsideration alleging that

when she filed the complaints for grave coercion and trespass to
dwelling on 17 September 1999against petitioners, no information
for estafa has yet been filed against her. In fact, the information
was filed on 5 October 1999.

In their Opposition to the Motion for Reconsideration,

petitioners argued that even before respondent filed the criminal
complaints for grave coercion and trespass to dwelling, she was
already being administratively investigated for the missing
jewelries; that she was ordered preventively suspended pending

said investigation; that the theft of the Miladay jewels was

reported to the Makati Police on 7 September 1999 with
respondent Afable being named as the primary suspect; that on
17 September 1999, which corresponded to the date of filing of
the criminal complaints against petitioners, the employment of
respondent with Miladay, Jewels, Inc. was terminated.Petitioners
further alleged that respondent filed the criminal complaints for
grave coercion and trespass to dwelling as leverage to compel
petitioners to withdraw the estafa case.

On 2 May 2000, Judge Adriatico issued an Order reversing his

earlier findings of lack of probable cause. This time, he found
probable cause to hold petitioners for trial and to issue warrants
of arrest, thus:

Acting on the Motion for Reconsideration filed by the private

complainant herein on January 17, 2000, with Opposition filed by the
accused on January 27, 2000, taking into consideration the
Manifestation/Brief Memorandum filed by the said private complainant
on March 4, 2000, the Court found cogent reason to reconsider its
order dated January 7, 2000.

The sworn allegation/statement of witness Mauro V. de Lara,

which was inadvertently overlooked by the undersigned, and which
states, among other things, that said witness saw the private
complainant herein being forcibly taken by three persons, referring
very apparently to the accused herein, from her residence is already
sufficient to establish a prima facie evidence or probable cause against
the herein accused for the crimes being imputed against them. It is
likewise probable that accused herein could have committed the crime
charged in view of their belief that the private complainant herein had
something to do with the alleged loss or embezzlement of jewelries of
the Miladay Jewels.

WHEREFORE, in order to ferret out the truth/veracity of the

complainants allegation and in order not to frustrate the ends of
justice, let the above-entitled cases now be set for trial.

Let therefore warrant of arrest be issued against all the accused

in Criminal Case No. 99-29038 (Grave Coercions), fixing their bail for
their provisional liberty in the amount of P12,000.00 for each of them.

As regard Criminal Case No. 99-29037 (Trespass to Dwelling) the

same shall be governed by the Rules on Summary Procedure. [6]

Petitioners filed a motion for reconsideration insisting that

the alleged affidavit of Mauro V. de Lara on which the court a
quo based its findings of probable cause was hearsay because it
was not sworn before Judge Adriatico; that De Lara did not
personally appear before the investigating judge during
preliminary investigation.However, petitioners motion for
reconsideration was denied in the Order dated 14 July 2000, thus:

Acting on the Motion for Reconsideration filed by the accused,

thru counsel. With comment from the counsel of the private
complainant, the Court resolves to deny the same there being no
cogent reason to reconsider the Court order dated May 2, 2000.

The Court has resolved to try the above-entitled cases on the

merits so as to ferret out the truth of the private complainants
allegations and there being probable cause to warrant criminal
prosecution of the same.

The accuseds contention that the statement of witness Mauro de

Lara is bereft of credibility and that the complaints at bar were initiated

merely for harassment purposes could be ventilated well in a full blown

trial.

WHEREFORE, in view of the foregoing reason, let the trial of

these cases proceed as already scheduled. [7]

Petitioners moved for clarificatory hearings which were

conducted on 23 August 2000 and 31 August 2000. However,
before the court a quo could render a resolution based on said
clarificatory hearings, petitioners filed on 15 September 2000 a
petition for certiorari before the Regional Trial Court with prayer
for issuance of temporary restraining order and writ of preliminary
injunction.[8] Petitioners sought to annul the 2 May 2000 and 14
July 2000 Orders of the court a quo for having been issued with
grave abuse of discretion. Petitioners argued that the court a
quo gravely abused its discretion in issuing said Orders finding
probable cause and ordering the issuance of warrants of arrest
based solely on the unsworn statement of Mauro V. de Lara who
never appeared during preliminary investigation and who was not
personally examined by the investigating judge.

On 18 September 2000, Executive Judge Danilo A.

Manalastas of the Regional Trial Court of Malolos, Bulacan, Branch
7, issued an Order[9] granting a 72-hour temporary restraining
order and enjoining the Municipal Trial Court from proceeding with
the prosecution of petitioners in Criminal Case Nos. 99-29037 and
99-29038.

The case was thereafter raffled to Branch 79 which rendered

its Decision[10] denying the petition for annulment of the 2 May
2000 and 14 July 2000 Orders of the Municipal Trial Court. The

Regional Trial Court found that after conducting clarificatory

hearings, the court a quo issued an Order on 18 September
2000, finding probable cause. The Regional Trial Court further
ruled that any defect in the issuance of the 2 May 2000 and 14
July 2000 Orders finding probable cause based solely on the
unsworn statement of Mauro V. de Lara who failed to appear
during the preliminary examination and who was not personally
examined by the investigating judge, was cured by the issuance
of the 18 September 2000 Order. The Regional Trial Court
reasoned, thus:

While it is true that respondent Judge Hon. Calixto O. Adriatico

dismisses both criminal cases last January 7, 2000 finding no probable
cause and later on reverse himself by issuing the question Order dated
May 2, 2000 alleging among others that said Judge inadvertently
overlooked the statement of witness Mauro V. De Lara, the stubborn
facts remain that whatever defects, or shortcomings on the parts of
the respondent Judge was cured when he conducted clarificatory
examination on the dates earlier mentioned in this Order. [11]

The dispositive portion of the Decision of the Regional Trial

Court, reads:
RESPONSIVE OF ALL THE FOREGOING, the instant Petition for the
Annulment of the Orders of the respondent Judge dated May 2,
2000 and July 14, 2000 in criminal cases nos. 99-29037 and 99-29038
(MTC-Meycauayan, Branch 2) should be as it is hereby denied for lack
of merit.

ACCORDINGLY, the Presiding Judge of branch II, the Hon. Calixto

O. Adriatico may now proceed to hear and decide crim. Cases nos. 9929037 and 99-29038 pending before that Court. [12]

Petitioners filed a Petition for Review before the Court of

Appeals asserting that the court a quo acted with grave abuse of
discretion in basing its findings of probable cause and ordering
the issuance of warrants of arrest solely on the unsworn
statement of Mauro De Lara who never appeared during
preliminary investigation and who was not personally examined
by the investigating judge. Moreover, they argued that the 18
September 2000 Order was void because it was issued by the
Municipal Trial Court while the temporary restraining order issued
by the Regional Trial Court enjoining the court a quo to proceed
further with the criminal complaints was in force.

However, the Court of Appeals denied the petition on the

ground that petitioners resorted to the wrong mode of
appeal; i.e., instead of an ordinary appeal, petitioners filed a
petition for review. [13] The dispositive portion of the Decision of
the Court of Appeals, reads:

WHEREFORE, in view of the foregoing, the instant Petition for

Review is hereby DENIED. The Municipal Trial Court of Meycauayan,
Bulacan, Branch II is directed to proceed with the trial of Criminal Case
Nos. 99-29037 and 99-29038 and to dispose of them with deliberate
dispatch.[14]

Petitioners filed a motion for reconsideration but it was

denied.[15] Hence, the instant petition raising the following
assignment of errors:

I.

THE COURT OF APPEALS ERRED IN NOT RULING THAT THE TRIAL COURT
HAD ACTED WITH GRAVE ABUSE OF DISCRETION IN BASING ITS
FINDING OF PROBABLE CAUSE TO HOLD PETITIONERS FOR TRIAL ON
THE MERITS AND ISSUANCE OF WARRANTS OF ARREST AGAINST THEM,
UPON AN UNSWORN STATEMENT OF A WITNESS WHO NEVER
APPEARED BEFORE, NOR WAS PERSONALLY EXAMINED BY, THE TRIAL
COURT.

A. THE CONSTITUTION GUARANTEES THAT NO WARRANT

OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE
TO BE DETERMINED PERSONALLY BY THE JUDGE AND
AFTER PERSONALLY EXAMINING UNDER OATH THE
COMPLAINANT AND WITNESSES.

II.

PETITIONERS
ASSERT
THEIR
CONSTITUTION WHICH TAKES
PROCEDURE OR TECHNICALITIES.

RIGHT
GUARANTEED
BY
THE
PRECEDENCE OVER RULES OF

A. IT IS WELL-SETTLED THAT THIS HONORABLE COURT IS

BOUND BY THE ALLEGATIONS IN THE PETITION AND NOT
BY ITS CAPTION.[16]

Petitioners insist that the Orders of the court a quo dated 2 May
2000 and 14 July 2000 should be annulled for having been issued
with grave abuse of discretion because the finding of probable
cause was based solely on the unsworn statement of Mauro De
Lara
who
never
appeared
during
the
preliminary
examination. Petitioners also allege that since De Lara never
appeared before the investigating judge, his statement was
hearsay and cannot be used as basis for finding probable cause
for the issuance of warrant of arrest or to hold petitioners liable

for trial. Granting that the statement of De Lara was subscribed

before Judge Paguio, the same cannot be used as basis because
the law requires that the statement be sworn to before the
investigating judge and no other.

In its Comment, respondent People of the Philippines argue that

the Court of Appeals correctly dismissed petitioners petition
because they resorted to the wrong mode of appeal.

On the other hand, respondent avers that the issue on the

propriety of the issuance by the court a quo of the 2 May 2000
and 14 July 2000 Orders has become moot because clarificatory
hearings were thereafter conducted and another Order dated 18
September 2000 was issued finding probable cause against
petitioners; and, that the statement of Mauro De Lara was
subscribed and sworn to before Judge Orlando Paguio although it
was Judge Calixtro Adriatico who acted as the investigating judge.

The petition is meritorious.

Before proceeding to the substantive issues, we first address the

issue of whether or not the Court of Appeals properly denied the
petition for review filed by the petitioners under Rule 42 of the
Rules of Court.

In denying the petition for review under Section 1, [17] Rule 42 of

the 1997 Rules of Court filed by petitioners, the appellate court
stressed that they availed of the wrong mode of review in
bringing the case to it since the petitioners filed an original action
under Rule 65 of the Rules of Court to the RTC, the remedy

availed of should have been an appeal under Section 2(a) of Rule

41 of the Rules of Court:

SEC. 2. Modes of appeal.

(a) Ordinary appeal. The appeal to the Court of Appeals in cases

decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed and served
in like manner. (Emphasis supplied.)

It is only when the decision of the RTC was rendered in the

exercise of appellate jurisdiction would a petition for review under
Rule 42 be proper[18]

We do not agree in the conclusion arrived at by the Court of

Appeals.

The present controversy involved petitioners sacrosanct right

to liberty, which is protected by the Constitution. No person
should be deprived of life, liberty, or property without due process
of law.[19]

While it is true that rules of procedure are intended to promote

rather than frustrate the ends of justice, and while the swift
unclogging of the dockets of the courts is a laudable objective, it

nevertheless must not be met at the expense of substantial

justice.[20]

The Court has allowed some meritorious cases to proceed

despite inherent procedural defects and lapses. This is in keeping
with the principle that rules of procedure are mere tools designed
to facilitate the attainment of justice, and that strict and rigid
application of rules which would result in technicalities that tend
to frustrate rather than promote substantial justice must always
be avoided. It is a far better and more prudent cause of action for
the court to excuse a technical lapse and afford the parties a
review of the case to attain the ends of justice, rather than
dispose of the case on technicality and cause grave injustice to
the parties, giving a false impression of speedy disposal of cases
while actually resulting in more delay, if not a miscarriage of
justice.[21]

In those rare cases to which we did not stringently apply the

procedural rules, there always existed a clear need to prevent the
commission of a grave injustice. Our judicial system and the
courts have always tried to maintain a healthy balance between
the strict enforcement of procedural laws and the guarantee that
every litigant is given the full opportunity for a just and proper
disposition of his cause.[22]

The emerging trend in the rulings of this Court is to afford

every party litigant the amplest opportunity for the proper and

just determination of his cause, free from the constraints of

technicalities. Time and again, we have consistently held that
rules must not be applied so rigidly as to override substantial
justice.[23]

The Court of Appeals should have looked beyond the alleged

technicalities to open the way for the resolution of the substantive
issues in the instance case. The Court of Appeals, thus, erred in
dismissing petitioners petition for review. By dismissing the said
Petition, the Court of Appeals absolutely foreclosed the resolution
of all the substantive issues petitioners were repeatedly
attempting to raise before the Court of Appeals.

We now proceed to the resolution of the substantive issues

raised by the petitioners.

Section 2, Article III, of the 1987 Constitution, provides:

SEC. 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

It is constitutionally mandated that a warrant of arrest shall issue

only upon finding of probable cause personally determined by the
judge after examination under oath or affirmation of the
complainant and the witnesses he/she may produce, and
particularly describing the person to be seized.

To determine the existence of probable cause, a preliminary

investigation is conducted. A 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.[24]

A
preliminary
investigation
is
required
to
be
conducted before the filing of a complaint or information for an
offense where the penalty prescribed by law is at least 4 years, 2
months and 1 day without regard to the fine. [25] Thus, for cases
where the penalty prescribed by law is lower than 4 years, 2
months and 1 day, a criminal complaint may be filed directly with
the prosecutor or with the Municipal Trial court. In either case, the
investigating officer (i.e., the prosecutor or the Municipal Trial
Court Judge) is still required to adhere to certain procedures for
the determination of probable cause and issuance of warrant of
arrest.

In the instant case, respondent directly filed the criminal

complaints against petitioners for grave coercion and trespass to
dwelling before the Municipal Trial Court. The penalty prescribed
by law for both offenses is arresto mayor, which ranges from 1
month and 1 day to 6 months. Thus, Section 9, Rule 112 of the
Rules of Court applies, to wit:
SEC. 9. Cases not requiring a preliminary investigation nor covered by
the Rule on Summary Procedure.

xxxx

(b) If filed with the Municipal Trial Court. If the complaint or information
is filed with the Municipal Trial Court or Municipal Circuit Trial Court for
an offense covered by this section, the procedure in section 3(a) of this
Rule shall be observed. If within ten (10) days after the filing of the
complaint or information, the judge finds no probable cause after
personally evaluating the evidence, or after personally examining in
writing and under oath the complainant and his witnesses in the form
of searching questions and answers, he shall dismiss the same. He
may, however, require the submission of additional evidence, within
ten (10) days from notice, to determine further the existence of
probable cause. If the judge still finds no probable cause despite the
additional evidence, he shall, within ten (10) days from its submission
or expiration of said period, dismiss the case. When he finds
probable cause, he shall issue a warrant of arrest or a
commitment order if the accused had already been arrested,
and hold him for trial. However, if the judge is satisfied that
there is no necessity for placing the accused under custody, he
may issue summons instead of a warrant of arrest. (Emphasis
supplied.)

Corollarily, Section 6 of the same Rule provides:

SEC. 6. When warrant of arrest may issue. x x x

(b) By the Municipal Trial Court. x x x [T]he judge may issue a warrant
of arrest if he finds after an examination in writing and under oath of
the complainant and his witnesses in the form of searching questions
and answers, that a probable cause exists and that there is a necessity
of placing the respondent under immediate custody in order not to
frustrate the ends of justice.

Clearly, Judge Adriatico gravely abused his discretion in issuing

the assailed 2 May 2000 and 14 July 2000 Orders finding probable
cause to hold petitioners liable for trial and to issue warrants of
arrest because it was based solely on the statement of witness
Mauro De Lara whom Judge Adriatico did not personally examine
in writing and under oath; neither did he propound searching
questions. He merely stated in the assailed 2 May 2000 Order that
he overlooked the said statement of De Lara; nevertheless,
without conducting a personal examination on said witness or
propounding searching questions, Judge Adriatico still found De
Laras allegations sufficient to establish probable cause. Plainly,
this falls short of the requirements imposed by no less than the
Constitution.

In Sangguniang Bayan of Batac v. Judge Albano, [26] the Court

found respondent judge guilty of ignorance of the law because he
failed to comply with the procedure on the issuance of warrant of
arrest, thus:

Failure to comply with such procedure will make him administratively

liable. In the case at bar, respondent judge issued several
warrants of arrest without examining the complainant and his
witnesses in writing and under oath, in violation of Section 6 of
Rule 112 which provides:

Sec. 6. When warrant of arrest may issue. x x x

(b) By the Municipal Trial Court. If the municipal trial judge

conducting the preliminary investigation is satisfied after
an examination in writing and under oath of the
complainant and his witnesses in the form of searching

questions and answers, that a probable cause exists and

that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of
justice, he shall issue a warrant of arrest.

The records show that respondent judge has violated the rules on
preliminary investigation and issuance of a warrant of arrest since the
start of his term as municipal judge in Batac, Ilocos Norte in September
1991. The gross ignorance of respondent judge has immensely
prejudiced the administration of justice. Parties adversely affected by
his rulings dismissing their complaints after preliminary investigation
have been denied their statutory right of review that should have been
conducted by the provincial prosecutor. His practice of issuing
warrants of arrest without examining the complainants and
their witnesses is improvident and could have necessarily
deprived the accused of their liberty however momentary it
may be. Our Constitution requires that all members of the judiciary
must
be
of
proven
competence,
integrity,
probity
and
independence. Respondent judges stubborn adherence to improper
procedures and his constant violation of the constitutional
provision requiring him to personally examine the complainant
and the witness in writing and under oath before issuing a
warrant of arrest makes him unfit to discharge the functions of a
judge.

When the investigating judge relied solely on the affidavit of

witness De Lara which was not sworn to before him and whom he
failed to examine in the form of searching questions and answers,
he deprived petitioners of the opportunity to test the veracity of
the allegations contained therein. Worse, petitioners arguments
that De Laras affidavit was hearsay was disregarded by the
investigating judge despite the fact that the allegations therein
were completely rebutted by petitioners and their witnesses
affidavits, all of whom appeared before and were personally
examined by the investigating judge. It was thus incorrect for the
court a quo to rule thus:

The accuseds contention that the statement of witness Mauro de

Lara is bereft of credibility and that the complaints at bar were initiated
merely for harassment purposes could be ventilated well in a full blown
trial.[27]

In sum, De Laras affidavit cannot be relied upon by the court a

quo for its finding of probable cause.

In addition, this Court finds that the warrants of arrest were

precipitously issued against petitioners. Deprivation of a citizens
liberty through the coercive process of a warrant of arrest is not a
matter which courts should deal with casually. Any wanton
disregard of the carefully-wrought out processes established
pursuant to the Constitutions provisions on search warrants and
warrants of arrest is a serious matter primarily because its effects
on the individual wrongly-detained are virtually irremediable. [28]

The procedure described in Section 6 of Rule 112 is

mandatory because failure to follow the same would amount to a
denial of due process. With respect to the issuance by inferior
courts of warrants of arrest, it is necessary that the judge be
satisfied that probable cause exists: 1) through an examination
under oath and in writingof the complainant and his witnesses;
which examination should be 2) in the form of searching
questions and answers. This rule is not merely a procedural but a
substantive rule because it gives flesh to two of the most
sacrosanct guarantees found in the fundamental law: the
guarantee against unreasonable searches and seizures and the
due process requirement.[29]

The issuance of warrants of arrest is not mandatory. The

investigating judge must find that there is a necessity of placing
the petitioners herein under immediate custody in order not to
frustrate the ends of justice. [30] Perusal of the records shows no
necessity for the immediate issuance of warrants of
arrest. Petitioners are not flight risk and have no prior criminal
records.

Respondents contention that any defect in the 2 May

2000 and 14 July 2000 Orders of the court a quo has been cured
by its 18 September 2000 Order is flawed. It will be recalled that
on 15 September 2000, petitioners filed a petition for certiorari
before the Regional Trial Court of Meycauayan, Bulacan. On 18
September 2000, Executive Judge Manalastas issued a temporary
restraining order enjoining the court a quo from conducting
further proceedings in Criminal Cases Nos. 99-29037 and 9929038. However, in contravention of said restraining order, the
court a quo issued its Order on even date, i.e., 18 September
2000, finding probable cause against petitioners holding them
liable for trial and ordering the issuance of warrants of
arrest. Considering that the court a quos 18 September
2000 Order was issued during the effectivity of the temporary
restraining order, the same is considered of no effect.

WHEREFORE, the petition is GRANTED. The assailed 24

February 2004 Decision of the Court of Appeals in CA-G.R. SP No.
63280 denying petitioners petition for review and directing the
Municipal Trial Court of Meycauayan, Bulacan, Branch 11, to
proceed with the trial of Criminal Cases Nos. 99-29037 and 9929038, as well as the 23 October 2006 Resolution denying the
motion for reconsideration, are REVERSED and SET ASIDE. The
Municipal Trial Court of Meycauayan, Bulacan, Branch 11,
is DIRECTED to dismiss Criminal Cases Nos. 99-29037 and 9929038 for lack of probable cause and to quash the warrants of

arrest against petitioners

precipitously issued.

for

having

been

irregularly

SO ORDERED.

ANTONIO B. RAMOS
(Deceased),

G.R. No. 171565

Substituted by his
Surviving Heirs, namely,
MA. MARGARITA A.
RAMOS, ANTONIO A.
RAMOS,

Present:

CARPIO, J., Chairperson,

and

MA. REGINA RAMOS DE

DIOS, JOSE VICENTE A.
RAMOS,
MA.POMONA RAMOS KO
TEH and OSCAR EMERITO
A. RAMOS,

BRION,
PERALTA,
ABAD, and
MENDOZA, JJ.

Petitioners,

- versus -

Promulgated:
July 13, 2010

PEOPLE OF
THE PHILIPPINES
and ROGERIO H. ESCOBAL,
Respondents.

x
-------------------------------------------------------------------------------------------------------x

DECISION
MENDOZA, J.:

This is a Petition for Review under Rule 45 of the Rules of Court

challenging: (1) the July 29, 2005 Resolution[1] of the Court of
Appeals, in CA-G.R. SP No. 90344,[2]dismissing outright the
petition for review (under Rule 42) filed by petitioner Antonio B.
Ramos; and (2) the February 14, 2006 Resolution[3] of the same
court denying his Motion for Reconsideration.

On January 15, 1999, the petitioner filed an AffidavitComplaint,[4] pertinent portions of which allege:
1. I am the lawful assignee of shares of stock covered by the
following stock certificates: (a) Travellers Life Assurance of the
Philippines, Inc. (TLAP) Stock Certificate Nos. 313 and 314, and
(b) Travellers Insurance & Surety Corporation (TRISCO) Stock
Certificate Nos. 173 and 174, by virtue of a Deed of Assignment
executed by the respondent Emerito M. Ramos, Sr. and his wife
(my mother) Susana B. Ramos in my favor in August 1994.

xxxxxxxxx
2. Sometime in August 13, 1996, Gloria Ramos Lagdameo,
EVP/Treasurer of Travellers Insurance & Surety Corporation
(TRISCO), and having been entrusted by Antonio B. Ramos with
the safekeeping of the aforesaid stock certificates turned over the
same to Emerito Ramos, Sr. at his insistence, and as such knew

that they were actually indorsed in my name in 1994, as shown in

her affidavit, x x x.[5]

3. After receiving the said stock certificates,

3.1 the respondents, Emerito M. Ramos, Sr. and

Rogerio H. Escobal, conspiring and conniving
with one another altered the four (4)
aforementioned stock certificates by the erasure
of the entry ANTONIO B. RAMOS and the
superimposition of the type-written entry E.M.
Ramos & Sons, Inc. on the dorsal side of each of
the four questioned stock certificates, as
supported by the Questioned Documents Report
No. 652-998 of the National Bureau of
Investigation, and
3.2 The respondent Escobal upon the prodding of and
with the criminal assent of the respondent
Ramos, and in his own handwriting, altered the
true date when Susana B. Ramos endorsed both
TRISCO and TLAP Stock Certificate Nos. 174 and
314 making it falsely appear that Susana B.
Ramos indorsed both Stock Certificates with
intent to assign the same on January 19, 1998
when in truth Travelers Insurance & Surety
Corporation (TRISCO) Stock Certificate Nos. 173
and 174, by virtue of a Deed of Assignment, was
indorsed in my favor, as early as in August 1994.
xxxxxxxxx

4. The alteration made on the aforementioned genuine documents

by the respondents has changed the meaning of the same, for their
own personal use and benefit, by:

4.1. Making it falsely appear that the assignee of the

questioned stock certificates is E.M. Ramos &
Sons instead of Antonio B. Ramos, as the lawful
and legal assignee of the shares of stock covered
by the aforesaid stock certificates.

4.2. Making it falsely appear that Susana B. Ramos

indorsed both Stock Certificates with intent to
assign the same on January 19, 1998 when she
could not have done so because as early as
September 1996, Susana B. Ramos was already
physically incapable of signing any documents as
supported by the statement of Alberto Alcancia,
Ricardo Deliza and Analia Ogario, and Maria
Cecilia Santiago, and a Medical Summary made
on her medical condition by Martesio C. Perez,
M.D., affecting therefore the veracity of the above
document purporting an assignment made by her
in favor of E.M. RAMOS & SONS, INC. on the
said date.

After

the

preliminary

investigation,

the

Investigating

Prosecutor issued a Resolution, dated April 20, 1999,[6] finding

probable cause and recommending that both respondents Emerito
M. Ramos, Sr. and Rogerio H. Escobal be indicted for violation of
paragraph 1 of Article 172 in relation to

paragraph 6 of Article 171 of the Revised Penal Code (RPC).

[7]
Specifically, Assistant City Prosecutor Arthur O. Malabaguio
pointed out that:
The first issue to be resolved is whether or not probable
cause exists for falsification of document.

A thorough and careful examination of the evidence

presented would show that there is probable cause for falsification
of documents.

Respondent Emerito Ramos admitted in his sworn

statement that he caused the erasure of the name of the
complainant as the assignee in the dorsal portion of the subject
certificates of stock and superimposed therein the name E.M.
Ramos & Sons, Inc. as the new assignee.

Respondents tried to justify such action by stating that

complainant failed to comply with the prestation required of him
in the Deed of Assignment executed on 17 August 1994. In the
exercise of [their] right of dominion, as Emerito Ramos Sr. and
Susana Ramos were still the registered owners of subject shares of
stocks,complainants name was erased and substituted by another
in all four stock certificates.

The defense invoked by the respondents is untenable. In the

absence of any evidence to the contrary, the deed of assignment
executed on 17 August 1994 between complainant and spouses
Ramos should be treated as valid and subsisting. By virtue of the
execution of this document, the name of complainant as assignee
appeared on subject certificates of stock.

There is no showing that this deed of assignment was later

nullified or declared void by failure of the complainant to fulfill his
undertaking as declared in the deed of assignment. On the other
hand, respondent Emerito Ramos Sr. by his own unilateral action,
rescinded the contract and subsequently decided to assign subject
shares of stocks to EMRASON. Complainant questioned this
action of Emerito Ramos Sr. and even filed with Securities and
Exchange Commission an action for nullity of assignment of
shares and other reliefs (SEC Case No. 03-98-5955).

In the absence of proof that there was [a] valid rescission of the
first Deed of Assignment, [the] validity of the execution of the
Second
Deed
of
Assignment
is
now
placed
in
question. Respondent Emerito Ramos Sr. could not now invoke
defense that substitution of Antonio Ramos to E.M. Ramos and
Sons, Inc. was made to speak the truth.

In any case, it was established that respondents made the

alterations as borne out by their sworn statements making them
liable for falsification of documents.

Anent the date January 19, 1998 in the subject stock certificates,
there appears to be a conflict in relation to the allegations of the
opposing parties. Complainant claims that respondents erased the
original date and superimposed the same with the date January
19, 1998 making them liable under paragraph (5) (altering true
dates) of Article 171 in relation to Article 172 of the Revised Penal
Code. Respondents maintain that prior to the filling up of the
date, there was already a blank space and respondent Rogerio
Escobal was required to fill it up with the date January 19, 1998 to
conform with the date the second deed of assignment was made.

Complainant failed to have this part of the document examined by

the NBI unlike in the case of the name of the assignee wherein the
NBI made its findings. In the absence of this, it is safe to assume,
as admitted by the respondents themselves, that the date January
19, 1998 was placed by Rogerio Escobal in a blank space appearing
on said documents. Therefore, violation of paragraph 6 and not
paragraph 5 of Article 171 in relation to Article 172 of the Revised
Penal Code was committed.

The second issue to be resolved is whether or not respondents

conspired to commit the offense of falsification of document.

It should be noted that respondent Rogerio Escobal

occupies [a] high position in EMRASON (Senior Vice-President
thereof). As such, he could have known of the details of the special
meeting of the Board of Directors of EMRASON held on January
14, 1998 concerning the assignment of shares of stock of spouses
Emerito Ramos and Susana Ramos the very same shares of stock
subject matter of this complaint. He could have known that the
Board of Directors of EMRASON accepted the offer of payment by
spouses Ramos by way of assignment of subject shares of stock to
EMRASON.

At the time respondent Rogerio Escobal assigned the different

certificates of stock on April 19, 1998[,] it should be assumed that
[, as witness] he read the contents of the documents before
affixing his signature. Perusal of the documents would remind
him of the subject of [the] special meeting held on January 14,
1998.

Moreover, it was shown by the complainant that it was not true

that it was only [on] 19 January 1998 that respondent Rogerio
Escobal saw [the] subject certificates[,] as he was present along
with Col. Nicolas, Mr. & Mrs. Lagdameo and Mr. Romeo Isidro
when the deed of assignment, together with the indorsement of
subject stocks certificates[,] were executed in complainants favor
in August 1994.

In fine, complainant was able to establish by sufficient evidence

that respondents conspired with one another in erasing his name
as assignee in subject stock certificates and substituted it with
E.M. RAMOS & SONS, INC.[,] and placing the date January 19,
1998 as the date of execution of the first deed of assignment[,] in
violation of paragraph 1 of Article 172 in relation to paragraph 6 of
Article 172 of the Revised Penal Code.

WHEREFORE, premises considered, it is respectfully

recommended that both respondents be indicted for violation of
above-mentioned provisions of law.

Corollarily, four (4) separate Informations, [8] charging private

respondents Emerito Ramos, Sr. and Rogerio H. Escobal with the
crime of Falsification of Commercial Document under paragraph 1
of Article 172 in relation to paragraph 6 of Article 171 of the RPC,
were filed. Those were docketed as Criminal Case Nos. 9496194964, and
raffled
to
the
Court (MeTC) of Quezon City, Branch 43.

Metropolitan

Trial

When these cases were called for arraignment and pretrial, counsel for the accused manifested that an Omnibus
Motion to Dismiss the cases against Ramos, Sr. had been filed
on the ground that he already passed away. Counsel also
moved for the deferment of the arraignment of the other
accused, Rogerio Escobal (Escobal), considering that there was,
before the Office of the Assistant City Prosecutor, a pending
Motion for Reconsideration[9] of the Resolution (dated April 20,
1999)recommending the filing of these cases. The MeTC denied
the latter motion and ordered the entry of a plea of NOT guilty
because private respondent refused to enter a plea. [10]
The Motion for Reconsideration presented two (2) issues,
to wit: (1) whether or not probable cause exists for falsification
of document; and (2) whether or not respondents conspired to
commit the offense of falsification of document. [11]
Anent the first issue, private respondent Escobal argued
that Article 1191[12] of the Civil Code finds application. He
explained that on the basis of the said provision, private
respondent Ramos, Sr. cannot be held criminally liable for the
consequences of the performance of a lawful act, i.e., the
rescission of the Deed of Assignment executed earlier in favor
of complainant (petitioner Ramos), who failed to comply with
the prestations required of him under the Deed, which
rescission necessarily resulted in the cancellation or erasure of

the name of complainant as assignee in the subject stock

certificates.
As regards the second issue, private respondent Escobal
averred that conspiracy was NOT proved as the crime itself
through clear and convincing evidence.
On November 23, 1999, the Office of the City Prosecutor
issued a Resolution[13] granting the Motion for Reconsideration
and recommending that the Informations against both accused
be withdrawn. The Office of the City Prosecutor made the
following explanations:
(1) The Deed of Assignment executed on August
17, 1994 clearly indicated the obligation of
complainant (petitioner Ramos) to transfer his onetenth (1/10) share in the real properties located in North
Susana and North Olympus subdivisions and one-tenth
(1/10) portion in the undivided one-hectare, all in
Quezon City. Apparently, the stock certificates were
purposely placed in the custody of TRISCO Executive
Vice President Gloria R. Lagdameo. No evidence
showing that the assignment has been recorded in the
companys stock and transfer book. Respondent E.
Ramos, therefore, has the authority to rescind the
contract unilaterally in the exercise of a right granted
under Article 1191 of the New Civil Code.
(2) Respondent E. Ramos, having acted in good
faith, never denied authorship of the cancellation or

erasure. He even placed his signatures to indicate that

he was the one who caused the erasures. Hence, in so
doing he acted without malice. Generally, the word
alteration has inherent in it the idea of deception of
making the instrument speak something which the
parties did not intend to speak. To be an alteration in
violation of the law, it must be one which causes the
instrument to speak a language different in legal effect
from that which it originally spoke. In this case,
complainant ceased to be the assignee of the
certificates of stock, the corrections made by
respondent speaks only of the truth.
(3) As it appears that the liability of respondent
Rogerio Escobal only depends on the criminal liability of
Ernesto Ramos, there is no reason for further
prosecution.

On January 7, 2000, Assistant City Prosecutor Antonio R.

Lim, Jr. filed with the MeTC of Quezon City, Branch 43 a Motion
with Leave of Court to Withdraw Information. [14]
Petitioner

appealed

before

the

Department

of

Justice (DOJ) and on February 15, 2002, the DOJ sustained the
November 23, 1999 Resolution of the Office of the City
Prosecutor

of

Quezon

City.[15] Petitioners

Reconsideration was likewise denied. [16]

Motion

for

On March 14, 2003, the MeTC of Quezon City, Branch

43 dismissed Criminal Case Nos. 94961-64. The trial court was
convinced with the finding of the City Prosecutor, which was
sustained by the DOJ, that probable cause for the falsification
of commercial documents against the remaining accused,
Escobal, did not exist.[17]
The MeTC enumerated the elements of falsification of
commercial documents under paragraph 6 of Article 171 of the
RPC. Thus:
1. That there be an alteration (change) or intercalation
(insertion) on a document;
2. That it was made on a genuine document;
3. That the alteration or intercalation has changed the
meaning of the document; and
4. That the change
something false.

made

the

document

speak

The MeTC ruled that the referred alterations committed by

accused E. Ramos in changing the name of the indorsee of the
stock certificates from that of the complainant Antonio Ramos
to E.M. RAMOS & SONS, INC., could not be considered as the
falsification contemplated by the law as the change did not
make the document speak something false. The commercial
documents subject of these cases were admittedly altered by

the accused Ramos, Sr., purposely to correct the inequity

brought about by the failure of petitioner Ramos to comply with
what was incumbent upon him under their agreement.
The private prosecutors filed a Motion for Reconsideration.
[18]

Private respondent Escobal filed his Comment/Opposition.

[19]

Private prosecutors, thereafter, filed their Reply. [20]

On August 15, 2003, the MeTC finally resolved to DENY

the Motion for Reconsideration of the private prosecutors. [21]

On November 3, 2003, petitioner Ramos (complainant in
the criminal cases) filed a Petition for Certiorari, Prohibition and
Mandamus

with

the

Regional

Trial

Court

of

Quezon

City (RTC). The same was docketed as Civil Case No. Q0351042.[22] Petitioner presented the following grounds:
(a)
THE RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION
WHEN SHE ORDERED THE DISMISSAL OF THE INSTANT CASE FOR LACK
OF PROBABLE CAUSE DESPITE HER PREVIOUS DETERMINATION OF THE
EXISTENCE THEREOF WHEN SHE ISSUED A WARRANT OF ARREST.

(b)
THE RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION BY
ALLOWING THE UNDUE INTERFERENCE OF THE DEPARTMENT OF

JUSTICE WITH THE INSTANT CASE AFTER HAVING ALREADY MADE A

PERSONAL EXAMINATION OF PROBABLE CAUSE FOR THE ISSUANCE OF
A WARRANT OF ARREST

(c)
THE RESPONDENT JUDGES BASELESS DISMISSAL OF THE
INSTANT CASE GROSSLY VIOLATED THE PROSECUTIONS RIGHT TO DUE
PROCESS, IN GRAVE ABUSE OF DISCRETION.[23]

On January 3, 2005, the RTC of Quezon City, Branch

215 dismissed the

petition

for

lack

of

merit.[24] The

RTC

explained that once an Information or complaint was filed in

court, the matter of the disposition of the case would be left to
the sound discretion of the court. When the trial court in this
case reconsidered or reversed its previous finding of probable
cause and granted the motion to dismiss of the public
prosecutor, it was acting within its prerogative since the matter
rested upon its sound discretion. The ruling made by the MeTC
in dismissing the cases before it, was not simply derived from
its own whims and caprices but after a judicious reassessment
of the records of the case. The RTC also cited the case
of Crespo v. Mogul[25] where it was held that once a complaint
or information is filed in Court any disposition of the case as its
dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court.

On June

8,

2005,

the

RTC

Reconsideration of the petitioner.[26]

denied

the

Motion

for

Petitioner

then

sought

relief

from

the

Court

of

Appeals via a Petition for Review under Rule 42 of the Rules of

Court. Petitioner assailed the January 3, 2005 Decision and
the June 8, 2005 Resolution of the RTC.
In its challenged July 29, 2005 Resolution,[27] the Court of
Appeals dismissed

outright the

petition

filed

petitioner. Specifically, the Court of Appeals pointed out that:

x x x a petition for review under Rule 42 of the Revised
Rules on Civil Procedure may be availed of only if the assailed
decision of the Regional Trial Court was rendered in the exercise
of the latters appellate jurisdiction, such as when a plaintiff files
an action for ejectment or sum of money, etc. before the Municipal
or Metropolitan Trial Court against a defendant and said court
renders judgment thereon. If the losing party appeals the decision
of the Municipal or Metropolitan Trial Court to the Regional Trial
Court and the latter exercising its appellate court, affirms or
reverses the decision, then a petition for review filed by the losing
party before this Court under Rule 42 of the revised Rules on Civil
Procedure is in order.

However, in the case at bench, it clearly appears that the Regional

Trial Court of Quezon City that renders the assailed Decision
of January 3, 2005 and Order of June 8, 2005 rendered the same
pursuant to its original jurisdiction to assume to hear and
resolve petitions for certiorari under Rule 65 of the Revised Rules
on Civil Procedure. Because the Regional Trial Court of Quezon
City herein had assumed jurisdiction and decided the petition for
certiorari filed by herein petitioner pursuant to its original
jurisdiction as provided by law, the proper mode for petitioner to

by

assail the subject Decision and Order of the Regional Trial Court
of Quezon City is byordinary appeal under Rule 41 of the revised
Rules on Civil Procedure by filing a notice of appeal with the
Regional Trial Court of Quezon City within the reglementary
period as provided under Sec. 3 of Rule 41 of the revised rules on
Civil Procedure and when the appeal is perfected, the Court a
quo will elevate the entire record of this case to this Court, and
thereafter, instead of briefs, the parties will be required to file
their respective memorandum pursuant to Section 10 Rule 44 of
the revised Rules on Procedure.

In the other challenged Resolution dated February 14,

2006,[28] the

Court

of

Appeals

denied

the

Motion

for

Reconsideration of petitioner.
Hence, this petition under Rule 45 challenging the above
Resolutions of the Court of Appeals anchored on the following
grounds:[29]
(A)

THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE

PETITION FOR REVIEW FILED UNDER RULE 42 OF THE 1997
REVISED RULES OF CIVIL PROCEDURE DESPITE THE FACT
THAT THE SAME IS A PROPER MODE TO QUESTION THE
REGIONAL TRIAL COURTS ORDERS.

(B)

THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING

THE PETITION FOR REVIEW FILED UNDER RULE 42 OF
THE 1997 RULES OF CIVILPROCEDURE AS IT DENIED THE
PETITIONER OF THE FULL OPPORTUNITY TO ESTABLISH
THE MERITS OF HIS CAUSE, RELYING SOLELY ON
TECHNICALITY AT THE EXPENSE [OF] THE PETITIONERS
SUBSTANTIVE RIGHTS.

(C)

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING

TO RESOLVE THE PETITION FOR REVIEW ON THE MERITS
DESPITE THE CLEAR REVERSIBLE ERROR COMMITTED BY
THE REGIONAL TRIAL COURT WHEN IT AFFIRMED THE
METROPOLITAN TRIAL COURTS ORDERS DISMISSING
CRIMINAL CASE NOS. 94961 TO 94964 WITHOUT TRIAL ON
THE MERITS, THEREBY SANCTIONING A DENIAL OF DUE
PROCESS OF LAW.

(D)

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING

TO RESOLVE THE PETITION FOR REVIEW ON THE MERITS
NOTWITHSTANDING THE PATENT ERROR COMMITTED BY

THE REGIONAL TRIAL COURT WHEN IT AFFIRMED THE

METROPOLITAN TRIAL COURTS ORDERS DISMISSING
CRIMINAL CASE NOS. 94961 TO 94964 ON THE SOLE BASIS
OF THE RESOLUTION OF THE DEPARTMENT OF JUSTICE,
THEREBY SANCTIONING AN ABDICATION OF JUDICIAL
DUTY AND JURISDICTION.

(E)

THE COURT OF APPEALS GRAVELY ERRED IN DENYING

DUE COURSE TO THE PETITION FOR REVIEW DESPITE THE
PALPABLE ERROR COMMITTED BY THE REGIONAL TRIAL
COURT IN UPHOLDING THE METROPOLITAN TRIAL
COURTS ORDERS DISMISSING CRIMINAL CASE NOS. 94961
TO 94964 FOR LACK OF PROBABLE CAUSE DESPITE
OVERWHELMING EVIDENCE SHOWING ITS EXISTENCE.[30]

The grounds raised by the petitioner boil down to one basic issue whether or
not the Court of Appeals erred in dismissing the petition under Rule 42 filed by
herein petitioner before it.

We resolve the issue in the negative.

The Court of Appeals was correct in dismissing the petition outright. Under
the Rules, appeals to the Court of Appeals in cases decided by the Regional Trial

Court in the exercise of its appellate jurisdiction shall be by petition for review
under Rule 42.[31] What was filed by the petitioner before the RTC was a petition
for certiorari under Rule 65.

It has long been settled that certiorari, as a special civil action, is an original
action invoking the original jurisdiction of a court to annul or modify the
proceedings of a tribunal, board or officer exercising judicial or quasi-judicial
functions. It is an original and independent action that is not part of the trial or
the proceedings of the complaint filed before the trial court.[32] The petition
for certiorari, therefore, before the RTC is a separate and distinct action from the
criminal cases resolved by the MeTC.

It is true that litigation is not a game of technicalities and

that the rules of procedure should not be strictly followed in the
interest of substantial justice. However, it does not mean that the
Rules of Court may be ignored at will. It bears emphasizing that
procedural rules should not be belittled or dismissed simply
because their non-observance may have resulted in prejudice to a
partys substantial rights. Like all rules, they are required to be
followed except only for the most persuasive of reasons. [33] In this
case, there was nary a cogent reason to depart from the general
rule.

Indeed, the ground alone that petitioner resorted to an

improper remedy, makes the petition dismissible and undeserving
of the Courts attention.
Even if the Court glosses over such infirmity, the petition
should nonetheless be dismissed for lack of substantive merit.

Once a criminal action has been instituted by the filing of the

Information with the court, the latter acquires jurisdiction and has
the authority to determine whether to dismiss the case or convict
or acquit the accused. Where the prosecution is convinced that
the evidence is insufficient to establish the guilt of an accused, it
cannot be faulted for
Information.

moving for

the withdrawal of the

However, in granting or denying the motion to

withdraw, the court must judiciously evaluate the evidence in the

hands of the prosecution. The court must itself be convinced that
there is indeed no satisfactory evidence against the accused and
this conclusion can only be reached after an assessment of the
evidence in the possession of the prosecution. [34] In this case, the
trial court had sufficiently explained the reasons for granting the
motion for the withdrawal of the Information. The Court agrees
with the dispositions made by the trial court. Corollarily, the RTC
did not err in dismissing the petition (under Rule 65) filed by
petitioner challenging the ruling of the MeTC.

It bears emphasizing that when the trial court grants a motion of

the public prosecutor to withdraw the Information in compliance
with the directive of the Secretary of Justice, or to deny the said
motion, it does so not out of compliance to or defiance of the
directive of the Secretary of Justice, but in sound and faithful
exercise of its judicial prerogative. The trial court is the best and
sole judge on what to do with the case before it. The rule applies
to a motion to withdraw the Information or to dismiss the
case even before or after the arraignment of the accused. [35] The
prior determination of probable cause by the trial court does not
in any way bar a contrary finding upon reassessment of the
evidence presented before it.

WHEREFORE, the petition is DENIED. The Resolutions

dated July 29, 2005 and February 14, 2006 of the Court of Appeals
are AFFIRMED.

SO ORDERED.

LEONARDO U. FLORES,

G.R. No. 188197

Petitioner,
Present:

CARPIO, J.,
Chairperson,

- versus -

NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

HON. RAUL S. GONZALEZ, in his

capacity as Secretary of Justice, Promulgated:
and EUGENE LIM,
Respondents.

August 3, 2010

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This is a petition[1] for review on certiorari under Rule 45 of the

Rules of Court assailing the Decision [2] dated March 6, 2008 and
the Resolution[3] dated May 28, 2009 of the Court of Appeals (CA)
in CA G.R. CEB SP No. 02726.

The antecedent facts and proceedings follow:

On June 24, 2004, petitioner Leonardo U. Flores (Flores) filed a
complaint-affidavit[4] against private respondent Eugene Lim (Lim)
for estafa before the City Prosecutor of Cebu City, docketed as I.S.
No. 04-5228-F.

Briefly,

the

complaint

alleged

that,

during

the

pre-

incorporation stage of Enviroboard Manufacturing, Inc. (EMI) in

October 1996, Lim tricked Flores and the other EMIs incorporators
(Flores, et al.) to purchase two compact processing equipments,
CP15 and CP14, from Compak System Limited, Inc. (Compak)
in Great Britain for the manufacture of Fiber Boards. Unknown to

Flores, Lim was connected with Bendez International Corporation

(Bendez), the exclusive distributor of Compak. Floresexecuted an
agreement to purchase only a CP15. After the execution of the
sales contract and due to some delay in the delivery of the CP15,
Lim, through insidious words and deliberate bad faith, was able to
convince Flores, et al. to purchase instead an unused but later
model of the compact processing equipment, CP14, for
1,466,000.00 or P60,106,000.00, with the assurance that Lim
could effect the cancellation of the purchase for the CP15. Flores,
et al. agreed and purchased the CP14, using their funds allotted
for the CP15. Later, however, Lim told them that the purchase of
the CP15 could not be cancelled. Out of fear of lawsuits and
acting upon the advice of Lim, Flores, et al. raised the necessary
funds through bank loans to pay for the CP15. Then in
2001, Flores, et al. discovered the distributorship agreement
between Bendez and Compak. Upon further investigation, they
learned that the purchase price of the CP14 was only 908,140.00
or P38,174,618.16 (at the conversion ofP41.80) per the Letter of
Credit (LC) No. 263-C-6-00073[5], Proforma Invoice No. CP627A
dated June 18, 1996[6] and the Ocean Bill of Lading[7] relative to
these documents.
Lim filed his counter-affidavit[8] denying all the accusations
against him. Among others, he insisted that the CP14 was actually
priced at P60,106,000.00, and LC No. 263-C-6-00073 represented
only part of the payment for the purchase price. To support his
refutations, he submitted a Contract Payment Receipt [9] dated
August 20, 1996 showing that the full price of a CP14, in
reference to Proforma Invoice No. CP627B dated March 4, 1996,
was actually 1,466,000.00 or P60,106,000.00. He also submitted

documents showing that a CP10, an older model of the CP14 was

already priced at 1,031,585.00.[10]

After further exchange of pleadings and the case was submitted

for resolution, the City Prosecutor of Cebu City issued a
Resolution[11] dated January 16, 2005 dismissing the complaint for
lack of probable cause. The motion for reconsideration[12] filed
by Flores was denied in a Resolution[13] dated June 2, 2005.

On July 12, 2005, Flores filed a petition for review[14] with the
Secretary of Justice questioning the January 16, 2005 and the June
2, 2005 Resolutions. Lim opposed this petition.[15]

In a Resolution[16] dated March 2, 2006, the Secretary of Justice

dismissed the petition on the ground that there was no showing of
any reversible error on the part of the handling prosecutors, and
for Flores failure to append several documents to his petition.

Flores moved for a reconsideration of this Resolution. [17] Lim

opposed,[18] to which Flores replied.[19]

In his Resolution[20] dated May 31, 2006, the Secretary of Justice

reconsidered, disposing thus

WHEREFORE, premises considered, the assailed

resolution is hereby REVERSED and SET ASIDE. The City
Prosecutor of Cebu City is hereby directed to file an
information for other deceits defined and penalized under
Article 318 of the Revised Penal Code before the
Municipal Trial Court in Cities, Cebu City, and to report the
action taken thereon within ten (10) days from receipt
hereof.

SO ORDERED.[21]

Pursuant to the said directive, the Cebu City Prosecutor filed with
the Municipal Trial Court in Cities (MTCC), Cebu City an
Information[22] against Lim for the crime of Other Deceits under
Article 318 of the Revised Penal Code. The case was docketed as
Criminal Case No. 135467-R and was raffled to Branch 4.

Lim thus filed a motion for reconsideration [23] of the May 31, 2006
Resolution. Flores opposed.[24] Lim
replied.[25] Flores filed
a
rejoinder.[26]
On March 22, 2007, the Secretary of Justice reconsidered anew
and issued another Resolution,[27] disposing as follows

WHEREFORE, finding respondents motion for

reconsideration to be meritorious, the Resolution dated
May 31, 2006 is REVERSED. The instant petition for
review is hereby DISMISSED WITH FINALITY.

Consequently, the Office of the City Prosecutor is

hereby directed to withdraw the information, if any had
been filed in Court, and report the action taken thereon
within ten (10) days from receipt hereof.

SO ORDERED.[28]

Accordingly, on May 3, 2007, the Cebu City Prosecutor filed with

the MTCC a Motion to Withdraw Information. [29]

Seeking to nullify the March 22, 2007 Resolution, Flores filed a

petition for certiorari[30] with the Court of Appeals on May 22,
2007.

Meanwhile,

on

June

20,

2007,

the

MTCC

issued

its

Resolution[31] denying
the
Motion
to
Withdraw
Information. Ratiocinating on the denial of the motion, it declared

The Court notes the flip-flopping of the Public Prosecutors,

notably the Secretary of Justice in the instant case. On
January 16, 2005, the Investigating Prosecutor dismissed
the case for lack of probable cause. After his Motion for
Reconsideration was denied, the private complainant
appealed to the Secretary of Justice who, however,
dismissed the same on a technicality. Private complainant
filed a Motion for Reconsideration which the Secretary of

Justice granted on Mary 31, 2006. In that Resolution, the

City Prosecutor of Cebu was directed to file within ten (10)
days from receipt, an Information charging Accused with
the crime of Other Deceits under Article 318 of the
Revised Penal Code. Now the same Secretary of Justice
has reversed himself again and, through his subordinates,
is asking the Court to withdraw the Information.

The Court has conformably to the doctrine laid

down in Crespo and other cases made its own
independent assessment of the evidence thus far
submitted and is convinced that there exists
probable cause to hold accused to trial where the
parties can better ventilate their respective claims
and defense[s].[32] (Emphasis supplied.)

On June 29, 2007, Flores filed a Manifestation[33] with the Court of

Appeals, attaching the June 20, 2007 Resolution of the MTCC.

Meanwhile, Lim, on July 20, 2007, moved to reconsider the June

20, 2007 MTCC Resolution.[34]

On August 20, 2007, the Office of the Solicitor General (OSG) filed
with the Court of Appeals its Manifestation and Motion in lieu of
Comment.[35] The OSGs position was that the Secretary of Justice
acted with grave abuse of discretion in dismissing the complaint
and directing the withdrawal of the Information. Lim filed his

Comment[36] on September 28, 2007. Flores filed his Reply[37] to

Lims Comment on November 8, 2007.

In the meantime, on November 26, 2007, the MTCC issued an

Order[38] holding in abeyance the proceedings pending before it,
including the resolution of Lims motion for reconsideration of the
denial of the Motion to Withdraw Information. It held

In a manner of speaking, the subject incident is straddling

on two horses. The ardent desire of the private
complainant to prosecute the accused is evident when he
filed the petition before the Hon. Court of Appeals to
question the Resolution of the Hon. Secretary of
Justice. There is nothing wrong to be zealous in
prosecuting an accused except that his chosen approach
coupled with the fact that this court chose to disregard
the subject Resolution and insists on its jurisdiction over
the case result in a procedural disorder or confusion. This
is taking into account the unquestionable primacy of the
Hon. Court of Appeals over this court by virtue of which
any action or resolution by this court on the issue can be
negated or voided by the former. By reason of such
primacy, this court ought to defer to the Hon. Court of
Appeals and observe judicial courtesy to a superior court.

The outcome of the pending case before the Hon. Court of

Appeals questioning the resolution and order of the Hon.
Secretary of Justice will eventually determine the merit of
the resolution of this court in denying the motion to

withdraw filed by the prosecution acting on the order of

the Hon. Secretary of Justice.

Hypothetically, if the Hon. Court of Appeals will sustain

the Hon. Secretary of Justice, how can this court take a
posture different from that of a superior court and
insist[s] on hearing this case. Conversely, if the Hon.
Court of Appeals will sustain the private complainant, it
will, in effect, sustain the resolution of this court denying
the motion to withdraw Information, and render the
motion for reconsideration of the public prosecution moot
and academic. In such a case, the prosecution of the
accused will have to proceed.

If the court will proceed with this case but the Hon.
Secretary of Justice will be eventually upheld by the Hon.
Court of Appeals, all the proceeding[s] already had in this
court would become useless and wasted, including the
time and efforts of all parties concerned.

Furthermore, to continue with the proceedings in this case

while a case that matters is pending in the Hon. Court of
Appeals will constitute discourtesy and disrespect to a
superior court. That there is no injunction or restraint on
this court to proceed with this case is not an issue since in
the first place it was the private complainant and not the
public prosecutor or the accused who initiated the
petition for certiorari in the Hon. Court of Appeals. In fact,
judicial courtesy and respect dictate that the private
complainant ought to initiate the suspension of the
proceedings of the case in this court while the petition is
pending, or if he wants the proceedings herein to

continue, then he should have initiated the withdrawal or

termination of the case he filed in the Hon. Court of
Appeals.[39]

On March 8, 2008, the Court of Appeals promulgated the

questioned Decision finding no grave abuse of discretion on the
part of the Secretary of Justice in issuing his March 22, 2007
Resolution.

Flores filed a motion for reconsideration of the March 8, 2008

Decision. The Court of Appeals denied it in its Resolution dated
May 28, 2009. Hence, this petition anchored on the following
issues:

I.

WHETHER OR NOT THE JUNE 20, 2007

RESOLUTION OF THE MUNICIPAL TRIAL COURT,
DENYING RESPONDENT LIMS MOTION TO
WITHDRAW
INFORMATION
AND
FINDING
PROBABLE
CAUSE,
RENDERED
THE
DISPOSITION OF THE PETITION BEFORE [THE]
COURT OF APPEALS ACADEMIC?

II.

WHETHER OR NOT THE HON. SECRETARY OF

JUSTICE COULD RULE IN A PRELIMINARY
INVESTIGATION ON THE VALIDITY, WEIGHT,
ADMISSIBILITY, AND MERITS OF PARTIES
DEFENSES, EVIDENCE, AND ACCUSATION?

In gist, Flores asserts in his petition that the June 20, 2007
Resolution of the MTCC denying the Motion to Withdraw filed by
the prosecution and finding probable cause to hold Lim for trial for
the crime of Other Deceits under Article 318 of the Revised Penal
Code rendered his petition for certiorari before the Court of
Appeals moot and academic. He says that this is pursuant to the
ruling in the landmark case of Crespo v. Mogul[40] that once a
complaint or information is filed in court, any disposition of the
case resulting either in the conviction or acquittal of the accused
rests in the sound discretion of the court, who is the best and sole
judge on what action to take in the case before it.

Flores further argues that the Secretary of Justice

overstepped his jurisdiction in the determination of probable
cause when he ruled during the preliminary investigation on the
validity, weight, admissibility and merits of the parties
evidence. According to him, these matters are better ventilated
before the court during the trial proper.

Our Ruling

With respect to the first issue, we rule in the affirmative. Indeed,

as Crespo declared

[O]nce a complaint or information is filed in Court, any

disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the sound discretion of

the Court.Although the fiscal retains the direction and

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

In order therefor to avoid such a situation whereby the

opinion of the Secretary of Justice who reviewed the
action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable,
refrain from entertaining a petition for review or appeal
from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter
should be left entirely for the determination of the Court.
[41]

In this case, on a petition for review, the Secretary of Justice

found probable cause for Other Deceits against Lim; thus, the
proper Information was filed in Court pursuant to the directive of
the Secretary of Justice. Upon filing of the Information, the MTCC
acquired jurisdiction over the case.

Lim filed a motion for reconsideration of the May 31, 2006

Resolution of the Secretary of Justice. There was nothing
procedurally infirm in this course of action inasmuch as there is
nothing in Crespo that bars the Secretary of Justice from
reviewing resolutions of his subordinates in an appeal or petition
for review in criminal cases. The Secretary of Justice was merely
advised in Crespo that, as far as practicable, he should not take
cognizance of an appeal when the complaint or information is
already filed in court.[42]

This is also true with respect to a motion for reconsideration

before the Secretary of Justice. Review, whether on appeal or on
motion for reconsideration, as an act of supervision and control by
the Secretary of Justice over the prosecutors, finds basis in the
doctrine of exhaustion of administrative remedies which holds
that mistakes, abuses or negligence committed in the initial steps
of an administrative activity or by an administrative agency may
be corrected by higher administrative authorities, and not directly
by courts. As a rule, only after administrative remedies are
exhausted may judicial recourse be allowed. [43] In any case, the
grant of a motion to dismiss or a motion to withdraw the
information, which the prosecution may file after the Secretary of
Justice reverses the finding of probable cause, is subject to the
discretion of the court.[44]

In this case, the Secretary of Justice, reversed himself in his March

22, 2007 Resolution, and directed the withdrawal of the
Information against Lim. In compliance with this directive, the

prosecutor filed a Motion to Withdraw Information on May 3,

2007. Flores, on the other hand, filed on May 22, 2007 a petition
for certiorari before the Court of Appeals to assail the March 22,
2007 Resolution of the Secretary of Justice. Then, on June 20,
2007, the MTCC denied the Motion to Withdraw Information on the
ground that, based on its own assessment, there exists probable
cause to hold Lim for trial for the crime of Other Deceits. In view
of the June 20, 2007 MTCC Resolution, Flores manifested before
the Court of Appeals this disposition, attaching a copy of the said
Resolution to his pleading. Meanwhile, Lim filed a motion for
reconsideration with the MTCC. Cognizant of the pending petition
for certiorari in the Court of Appeals and Lims motion for
reconsideration of the June 20, 2007 Resolution, the MTCC
suspended the proceedings before it, and deferred the
arraignment of Lim until the resolution of Flores certiorari petition
of the Court of Appeals.

We wish to point out that, notwithstanding the pendency of the

Information before the MTCC, especially considering the reversal
by the Secretary of Justice of his May 31, 2006 Resolution, a
petition for certiorari under Rule 65 of the Rules of Court,
anchored on the alleged grave abuse of discretion amounting to
excess or lack of jurisdiction on the part of Secretary of Justice,
was an available remedy to Flores as an aggrieved party. [45]

In the petition for certiorari, the Court of Appeals is not being

asked to cause the dismissal of the case in the trial court, but only
to resolve the issue of whether the Secretary of Justice acted with

grave abuse of discretion in either affirming or reversing the

finding of probable cause against the accused. But still the rule
standsthe decision whether to dismiss the case or not rests on the
sound discretion of the trial court where the Information was filed.
As jurisdiction was already acquired by the MTCC, this
jurisdiction is not lost despite a resolution by the Secretary of
[46]

Justice to withdraw the information or to dismiss the case,

notwithstanding the deferment or suspension of the arraignment
of the accused and further proceedings, and not even if the
Secretary of Justice is affirmed by the higher courts. [47]

Verily, it bears stressing that the trial court is not bound to adopt
the resolution of the Secretary of Justice, in spite of being affirmed
by the appellate courts, since it is mandated to independently
evaluate or assess the merits of the case and it may either agree
or disagree with the recommendation of the Secretary of
Justice. Reliance on the resolution of the Secretary of Justice alone
would be an abdication of the trial courts duty and jurisdiction to
determine a prima facie case.[48] Thus, the trial court may make
an independent assessment of the merits of the case based on
the affidavits and counter-affidavits, documents, or evidence
appended to the Information; the records of the public prosecutor
which the court may order the latter to produce before it; or any
evidence already adduced before the court by the accused at the
time the motion is filed by the public prosecutor. [49] The trial court
should make its assessment separately and independently of the
evaluation of the prosecution or of the Secretary of Justice. This
assessment should be embodied in the written order disposing of

the motion to dismiss or the motion to withdraw the information.

[50]

This was precisely what the MTCC did when it denied the Motion
to Withdraw Information in its June 20, 2007 Resolution, and it
correctly did so. In view of the above disquisitions, and while the
disposition of the issue of whether or not the Secretary of Justice
acted with grave abuse of discretion in not finding probable cause
against Lim may be persuasive, the MTCC is not bound to dismiss
the case or to withdraw the Information. For these reasons, the
petition for certiorari before the Court of Appeals has effectively
become moot and academic upon the issuance by the MTCC of its
June 20, 2007 Resolution. The March 6, 2008 Decision and the
May 28, 2009 Resolution of the Court of Appeals affirming the
Secretary of Justice will really make no difference anymore.

As held in Auto Prominence Corporation v. Winterkorn,[51] pursuant

to our ruling in Crespo and in the subsequent related cases, this
Court held

In ascertaining whether the Secretary of Justice

committed grave abuse of discretion amounting to lack or
excess or jurisdiction in his determination of the existence
of probable cause, the party seeking the writ
of certiorari must be able to establish that the Secretary
of Justice exercised his executive power in an arbitrary
and despotic manner, by reason of passion or personal
hostility, and the abuse of discretion must be so patent
and gross as would amount to an evasion or to a

unilateral refusal to perform the duty enjoined or to act in

contemplation of law. Grave abuse of discretion is not
enough, it must amount to lack or excess of
jurisdiction. Excess of jurisdiction signifies that he had
jurisdiction over the case, but (he) transcended the same
or acted without authority.

There is no escaping the fact that resolving the issue of

whether the Secretary of Justice committed grave abuse
of discretion amounting to lack or excess of jurisdiction
would necessarily entail a review of his finding of lack of
probable cause against the respondents AUDI AG officers.

If we should sustain the DOJ Secretary in maintaining that

no probable cause exists to hold respondents AUDI AG
officers liable to stand trial for the crime they were
charged with, our ruling would actually serve no practical
or useful purpose, since the RTC had already made such a
judicial determination, on the basis of which it dismissed
Criminal Case No. 4824-A. Lest it be forgotten, the fact
that the Information against respondents AUDI AG officers
had already been filed in court, its disposition, i.e., its
dismissal or the conviction of the accused, rests on the
sound discretion of the Court. And although the fiscal
retains direction and control of the prosecution of criminal
cases even while the case is already in court, he cannot
impose his opinion on the trial court. The Court is the best
and sole judge of what to do with the case before it. The
determination of the case is within its exclusive
jurisdiction and competence. Thus, the court may deny or
grant the motion to withdraw an Information, not out of
subservience to the (Special) Prosecutor, but in faithful
exercise of judicial discretion and prerogative. For these

very same reasons, we must now refrain from resolving

the issues raised by petitioners PPC and APC, considering
that the information against respondents AUDI AG officers
had already been filed before the RTC; the RTC acquired
exclusive jurisdiction over Criminal Case No. 4824-A; and
it has already rendered judgment dismissing the charges
against respondents AUDI AG officers.

This is not to say that we are already affirming the 2 July

2008 Order of the RTC dismissing Criminal Case No. 4824A. To the contrary, we are much aware that petitioners
PPC and APCs Motion for Reconsideration of the said order
of dismissal is still pending resolution by the trial
court. By refusing to go into the merits of the instant
Petition, we are only respecting the exclusive jurisdiction
of the RTC over Criminal Case No. 4824-A and avoiding
any pronouncement on our part which would preempt its
independent assessment of the case. Irrefragably, a
determination by us that probable cause against
respondents AUDI AG officers does or does not exist
would strongly influence, if not directly affect, the
resolution by the RTC of the matter still pending before
it. In any case, the party that would feel aggrieved by the
final judgment or order of the lower court in Criminal Case
No. 4824-A has the option of elevating the same to the
higher courts. And if only for the orderly administration of
justice, the proceeding in Criminal Case No. 4824-A, that
is, the resolution of the pending motion for
reconsideration filed by petitioners PPC and APC, should
be allowed to continue and take its course.

Under the circumstances, the denial of the present

Petition is clearly warranted for being moot. Where a

declaration on an issue would have no practical use or

value, this Court will refrain from expressing its opinion in
a case where no practical relief may be granted in view of
a supervening event. Thus, it is unnecessary to indulge in
academic discussion of a case presenting a moot
question, as a judgment thereon cannot have any
practical legal effect or, in the nature of things, cannot be
enforced.[52]

Anent the second issue, suffice it to state that these matters

are best addressed to the MTCC, where they will be thoroughly
ventilated and threshed out in the resolution of Lims motion for
reconsideration of the MTCC June 20, 2007 Resolution, and
eventually, if the trial court denies the motion, during the trial on
the merits before it.

WHEREFORE, the

petition

is GRANTED. The

petition

for certiorari before the Court of Appeals in CA-G.R. SP No. 02726

is declared MOOT AND ACADEMIC.Consequently, the assailed
Decision dated March 6, 2008 and the Resolution dated May 28,
2009 of the Court of Appeals in the said case are SET ASIDE. No
costs.